Fundamental Rights as a Salient Feature

At a Glance

• What it is Part III of the Constitution guarantees six Fundamental Rights to the citizens, in Articles 12 to 35
• Described as The Magna Carta of India
• Originally Seven rights; the Right to Property (Article 31) was deleted by the 44th Amendment Act, 1978 and made a legal right under Article 300-A
• Nature Justiciable, not absolute, and enforceable by the Supreme Court directly
• Purpose To promote political democracy and to limit the tyranny of the executive and arbitrary laws of the legislature
• Exam link UPSC Prelims, Polity: Salient Features

Where Does It Fit?

The earlier salient features described the structure of the State. The Fundamental Rights describe what the State may not do to the individual. The Directive Principles and the Fundamental Duties, taken up in the next topics, deal with the State’s and the citizen’s obligations. The individual rights themselves are taken up in a separate category on Fundamental Rights.

What Are the Fundamental Rights?

The Fundamental Rights are enshrined in Part III of the Constitution, from Articles 12 to 35. The framers derived inspiration from the Constitution of the USA, that is, its Bill of Rights. Part III is rightly described as the Magna Carta of India. It contains a very long and comprehensive list of justiciable rights, and the Fundamental Rights in the Indian Constitution are more elaborate than those found in the Constitution of any other country in the world, including the USA.

They are guaranteed to all persons without any discrimination, and they uphold the equality of all individuals, the dignity of the individual, the larger public interest and the unity of the nation. They are named Fundamental because they are guaranteed and protected by the Constitution, the fundamental law of the land, and because they are most essential for the all-round development, material, intellectual, moral and spiritual, of individuals.

Originally the Constitution provided seven Fundamental Rights, including the Right to Property in Article 31. The 44th Amendment Act, 1978 deleted it from the list and made it a legal right under Article 300-A in Part XII of the Constitution. At present there are only six Fundamental Rights.

What Is the Purpose of the Fundamental Rights?

The Fundamental Rights are meant for promoting the ideal of political democracy. They prevent the establishment of an authoritarian and despotic rule in the country and protect the liberties and freedoms of the people against invasion by the State. They operate as limitations on the tyranny of the executive and the arbitrary laws of the legislature. In short, they aim at establishing a “government of laws and not of men”.

What Are the Features of the Fundamental Rights?

1. Available to citizens or to all persons: Some are available only to citizens, and others to all persons, whether citizens, foreigners or legal persons like companies.
2. Not absolute: The State can impose reasonable restrictions, and the courts decide whether a restriction is reasonable.
3. Against the State: All are available against the arbitrary action of the State; some are also available against private individuals.
4. Negative and positive: Some limit the authority of the State, while others confer privileges.
5. Justiciable: A person can move the courts for enforcement if they are violated.
6. Guaranteed by the Supreme Court: The aggrieved person can go directly to the Supreme Court, and not only by way of appeal from a high court.
7. Not permanent: Parliament can curtail or repeal them only by a constitutional amendment act, and without affecting the basic structure.
8. Suspension in emergency: They can be suspended during a National Emergency, except the rights guaranteed by Articles 20 and 21. The six freedoms of Article 19 are automatically suspended only in an emergency on the ground of war or external aggression.
9. Limited by Articles 31A, 31B and 31C: These save certain laws from challenge.
10. Armed and police forces (Article 33): Parliament can restrict or abrogate their application to members of the armed forces, para-military forces, police forces, intelligence agencies and analogous services.
11. Martial law (Article 34): Their application can be restricted while martial law is in force in an area. It is different from a national emergency.
12. Enforcement (Article 35): Most are directly enforceable, while a few are enforced on the basis of a law made by Parliament and not by state legislatures, so that uniformity is maintained.

Who Can Claim Which Right?

What Does “State” Mean in Part III?

Article 12 defines the State, for the purposes of Part III, to include the Government and Parliament of India; the government and legislature of the states; all local authorities, such as municipalities, panchayats, district boards and improvement trusts; and all other authorities, statutory or non-statutory, such as LIC, ONGC and SAIL. The State is defined widely so as to include all its agencies. It is the actions of these agencies that can be challenged in the courts as violating the Fundamental Rights.

Why Is This Topic Important?

• Direct Prelims material: Questions on Part III, its features and the citizen/non-citizen distinction can be asked directly in Prelims.
• Link to the basic structure: Parliament can amend Fundamental Rights but not those that form part of the basic structure.

What Came Next?

The next topics describe the Directive Principles of State Policy and the Fundamental Duties.

Key People and Terms

• Magna Carta of India The description of Part III
• Justiciable Enforceable by the courts
• Article 12 Defines the State for Part III
• Article 300-A The legal right to property, after its removal from the Fundamental Rights
• Articles 33 and 34 Restriction of rights for armed forces and during martial law

Exam Corner

Mains Angle

Questions ask about the nature and limits of the rights. Use these points to add depth.

• Government of laws, not of men: The rights limit the tyranny of the executive and arbitrary laws of the legislature.
• Qualified, not absolute: Reasonable restrictions balance individual liberty against social control, and the courts decide what is reasonable.
• Amendable but protected: Parliament can curtail them by amendment, but not those within the basic structure.
• Suspension in emergency: They can be suspended, except Articles 20 and 21, which cannot be suspended.
• Wide reach of Article 12: The State includes all its agencies, so their actions can be challenged.