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Rights are claims that are essential for existence and development of individuals. In that sense, there will be a long list of rights. Mostly, all such rights are recognised by the society; some of the most important ones are recognised by the State and enshrined in the Constitution. Such rights are called Fundamental Rights.

Fundamental Rights are mentioned in the Constitution which guarantees them, and they are justifiable, i.e., enforceable through courts. For the said reason, they are fundamental in nature. Being justifiable means that in case of a violation of any of the fundamental rights, the individual can approach the court for the protection of his/her rights.

History of Fundamental Rights

The history of Fundamental Rights started in England in the year 1215. King John used to be the king of England at that time. He had a bad reputation of engaging in wars with kings of different countries; he would impose excessive taxes on his own ministers in order to fund wars. In case a minister refuses to pay the tax, his property would get seized by the king and the minister would be imprisoned without fair trial. The concerned ministers had to go through immense torture in the jail; such as the punishment of death by starvation. Due to such inhumane treatment, the people belonging to that State were not happy. There was a rising threat of civil war.

Owing to all such prevailing conditions in the State, different provincial ministers got united and forcibly made the King sign a document. The document stated the rights and duties of the King; his relation with his ministers. Notably, it was the first such document in which people demanded their rights in writing, such as:

  • Property Rights
  • Church Freedom
  • Widow’s Rights
  • Protection Against Arbitrary Arrest
  • Due Process
  • Fair Trial
  • Protection from Unjust Taxation

and many more…

This document got signed on 15 June 1215, and came to be known as ‘Magna Carta’. It was the first such document in which people demanded their rights in black and white. It also established the fact that, in any country, no one comes above law. Eventually, this document inspired the Constitutions of the whole world.

In 1787, after a gap of 11 years since declaring their independence, the U.S. got its Constitution; effective from 1789. It described the government framework, federal power, establishment of Supreme Court, National Supremacy clause, etc. But, it omitted to have the rights of the citizens; people raised their concern and there was public outrage with respect to accountability, liberty, their rights, etc.

James Madison, also known as the “Father of the U.S. Constitution”, inspired by the rights given in the Magna Carta, proposed 10 amendments in the U.S. Constitution. These amendments ensured the protection of fundamental rights of the citizens of the U.S. This document came into existence in the year 1791, and was named “Bill of Rights”.

With the British Rule expanding over 200 years, not fundamental rights, India didn’t even have basic rights. “Swaraj is my birth right and I shall have it”, this idea of Lokmanya Tilak led to the development of Swaraj Bill. It was the first attempt to get our rights in 1895. Swaraj Bill put forward the demand of ‘Fundamental Rights’ and ‘Self-Governance’; such a freedom of speech, right to privacy, right to vote, etc.

British never adopted the Swaraj Bill; it never became a law. Subsequently, many movements and the framing of the Constitution got deeply influenced by the Swaraj Bill.

Now British introduced various laws such as the Government of India Act, 1919. They were of the view that Indians were incapable of drafting their own Constitution. John Simon, a British Politician, was sent to India in order to gain traction for further reforms. He formed a 7-member all-whites committee (no Indian member was part of it), named ‘Simon Commission’. This commission faced huge backlash all over the country, with protestors exclaiming “SIMON GO BACK!”. In one such protest, one of our national leader, Lala Lajpat Rai, also known as the “Lion of Punjab”, dies due to police brutality. His death made the anti-British sentiment even stronger. To seek revenge, Bhagat Singh, Sukhdev and Rajguru assassinated one of the police officers.

All this time, Indian National Congress (INC) was highly active. It raised a strong voice for the basic and civil rights of the people; and passed a number of resolutions. In response to Simon Commission, INC passed the Nehru Report in the year 1928; with Motilal Nehru as its chairman. It was the first attempt towards drafting the Constitution of India.

Nehru Report put forward many important demands such as:

  • Right to Self-Determination – Process of drafting and adopting their own Constitution.
  • Dominion Status – Country still acknowledged the British monarch as its head of the State.
  • Fundamental Rights – Demand for various fundamental rights was put forward.

It was contended that if the British didn’t accept the above mentioned demand within a period of one year; in lieu of dominion status, INC will demand ‘Purna Swaraj’ (complete independence). Eventually, since British didn’t accept the Nehru report; on 26th January, 1930, in Lahore Session (with Jawaharlal Nehru as its President), INC made a public declaration that India now wants complete independence. It was also stated that we should celebrate the said day, i.e., 26th January, 1930, as Independence Day.

During those times, British had a monopoly over production, manufacturing and sale of Salt. To oppose this salt tax, Mahatma Gandhi presented his eleven demands to the then viceroy, Viceroy Irwin. These demands included:

  • Prohibition of Intoxicating Drinks
  • Allowing Indians to Manufacture Salt
  • Abolition of Salt Tax
  • Permitting Indians to carry firearms for Self-Defence
  • Release of all Political Prisoners

The Viceroy didn’t accept Mahatma Gandhi’s demands. Consequently, Gandhi Ji launched the Dandi March; travelling to Dandi from Sabarmati Ashram and producing salt. For the British, secrecy is also a form of violence, so, Gandhi Ji told the about the same beforehand. The day Mahatma Gandhi reached Dandi and started producing salt, the British arrested a large number or national and political leaders. With all this suffering, Indians launched the Civil Disobedience Movement. The movement became so massive that it gets concluded with the signing of Gandhi-Irwin Agreement, 1931. As per this agreement, Gandhi Ji called-off the Civil Disobedience Movement and Viceroy Irwin released 60,000-90,000 political prisoners.

In 1931, Indian National Congress adopted the Karachi Resolution, drafted by Pt. Jawaharlal Nehru. This resolution had two major contributions:

  1. For the first time, the term ‘Swaraj’ was defined.
  2. Two resolutions were adopted, namely, Fundamental Rights and National Economic Programme.

Thus, Karachi Resolution outlined the basis for fundamental rights and socio-economic policies. Nehru Report, along with the Karachi Resolution provided the blueprint for the Indian Constitution. In 1934, M.N. Roy, an activist, proposed the idea of a Constituent Assembly for the first time.

In 1939, World War – II broke out. At the same time, in 1940, Muslim league demanded for a separate Muslim nation; Pakistan. As a result, there was a shift in British Policy due to which there rose a conflict between national political leaders and parties. In the meantime, the British presented their last Constitutional Act; Government of India Act, 1935. This act did recognise the right to self-governance, but Fundamental Rights and Constituent Assembly were not mentioned; Indian National Congress rejected the said act. Thereafter, the need for Fundamental Rights gained traction.

In order to secure India’s cooperation in World War – II, British sent Stafford Cripps (British Politician); leading Cripps Mission. They made two key proposals:

  1. With the end of the war, India would be granted a dominion status.
  2. Forming a Constituent Assembly to draft India’s Constitution.

It was for the first time; British Govt. acknowledged the idea of Constituent Assembly. Since we had moved past the dominion status, both the Congress and Muslim League rejected their proposal, and it led to ‘Quit India Movement’.

Quit India Movement was based on the objective, “immediate and unconditional end to the British rule.” Due to resulting economic devastation post World War – II and the increasing pressure of Quit India Movement; British became weak.

To transfer powers to the Indian leadership, Clement Attlee (British Prime Minister) created Cabinet Mission Plan. Elections were conducted in 1946 to elect members for the Constituent Assembly; the Constituent Assembly had its first meeting on 09th December 1946.

To provide a direction to the Indian Constitution, Pt. Jawaharlal Nehru presented the Objective Resolution before the Constituent Assembly. Eventually, this very Objective Resolution became the foundation for the Preamble of the Constitution of India.

Various committees were formed for the purpose of preparing the Constitution. An advisory committee was formed for Fundamental Rights (Advisory Committee on Fundamental Rights, Minorities, and Tribal and Excluded Areas); headed by Sardar Vallabh Bhai Patel. There were two sub-committees, viz., Fundamental Rights Sub-Committee (headed by J.B. Kriplani) and Minorities Sub-Committee (headed by H.C. Mukherjee). They were the ones to propose initial proposals of the Fundamental Rights and Minority Rights before the Constituent Assembly.

Owing to the then prevailing conditions (low literacy rate, communal divide, partition) in the country; it is not feasible to guarantee all the rights. So, it was decided to first guarantee the essential ones, such as:

  1. Civil and Political Rights (Freedom of Speech)
  2. Socio-Economic Rights (Right to work)

At that time, socio-economic rights could not be guaranteed; they were considered to be aspirational goals for the future. Only Fundamental Rights were guaranteed.

This is how, a separate part was created for the Fundamental Rights; Part-III of the Constitution of India. It is also known as the ‘Magna Carta of India’.

Introduction to Fundamental Rights

Article 12-35 (Part-III) of the Constitution of India provides Fundamental Rights to the individuals. These Fundamental Rights ensure essential freedoms and protect individuals from arbitrary state action.

  • Dr. B.R. Ambedkar has described Part-III as the “most criticised” part of the Indian Constitution.
  • Gajendragadkar, J. described them as the “very foundation and cornerstone of the democratic way of life ushered in this country by the Constitution”.

Fundamental rights were deemed essential to protect people from the atrocities of the government. They are limitations upon all the powers of the government. In Maneka Gandhi case, Bhagwati, J. observed: “These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a pattern of guarantee on the basic structure of human rights, and impose negative obligations on the State not to encroach on individual liberty in its various dimensions.” These rights are regarded as fundamental because they are essential for the development of the personality of every individual and to preserve human dignity.

The object behind the inclusion of the Chapter of Fundamental Rights in the Indian Constitution is to establish ‘a Government of law and not of man’; a governmental system where the tyranny of majority does not oppress the minority. In short, the object is to establish Rule of Law and it would not be wrong to say that the Indian Constitution in this respect goes much ahead than any other Constitutions of the world.

In M. Nagraj v. Union of India the Supreme Court speaking about the importance of the fundamental rights states that the Fundamental Rights are not gift from the State to citizens; Part 3 does not confer Fundamental Rights but confirm their existence and give them protection. Owing to the very fact that humans belong to human race, they possess certain basic rights by birth; independently of any Constitution. These rights are important as they possess intrinsic values. The purpose of Fundamental Rights is to protect certain rights of the individuals from the evil minded officials or the majority; making them justiciable.

Now, Fundamental Rights guarantee freedom; liberty. For a fact, unchecked and unrestricted rights to individuals can create utter chaos; it will jeopardise the liberty of others. Conversely, if the State is given a free hand to determine the extent of personal liberty; it would lead to tyranny. Here, Law acts a scheme of social control; it enables us to determine the extent and nature of liberty. The Indian Constitution attempts to do it by enumerating what are fundamental rights and by setting limits within which they can be curtailed. The Constitution permits ‘reasonable’ restrictions to be imposed on individual’s liberties in the interest of society.

Classification of Fundamental Rights

Initially, the Constitution of India guaranteed seven fundamental rights. The 44th Constitutional Amendment Act has abolished the Right to Property as a Fundamental Right as guaranteed by Article 19(1)(f) and Article 31 of the Constitution, and hence Article 19(1)(f) and Article 31 has been omitted; it is now classified as a legal right under Article 300-A in Part XII of the Constitution.

With the abolition of Right to Property as a Fundamental Right; the Constitution of India guarantees six fundamental rights to its citizens:

  1. Right to Equality (Article 14-18) – It guarantees that all individuals are treated equally under the law and enjoy equal protection. It prohibits discrimination based on religion, race, caste, sex, or place of birth. It ensures equal opportunities in public employment, abolishes untouchability, and prohibits the use of titles except for military and academic distinctions.
  2. Right to Freedom (Article 19-22) – It includes safeguards against arbitrary punishment and unlawful detention. The State has the duty to ensure that children aged 6-14 years get free and compulsory education. These freedoms include freedom of speech and expressions, residence, movement, information, etc.
  3. Right Against Exploitation (Article 23-24) – It protects individuals from forced labour, human trafficking, and child labour. This right strictly prohibits children under 14 years of age from working in hazardous industries, such as factories and mines.
  4. Right to Freedom of Religion (Article 25-28) - Every individual in India has the freedom to practice, profess, and propagate any religion of their choice. Religious groups also have the right to:
  • Establish and manage religious institutions,
  • Handle their religious affairs independently,
  • Own and manage property for religious purposes, and
  • Be exempt from paying taxes specifically for religious promotion.
  1. Cultural and Educational Rights (Article 29-30) – These rights safeguard the cultural, linguistic, and educational interests of minorities. They ensure:
  • The right to preserve one’s language, culture, and heritage;
  • Equal access to educational institutions without discrimination; and
  • The right of minorities to establish and administer their own educational institutions.
  1. Right to Constitutional Remedies (Article 32-35) – It is considered the “Heart and Soul of the Constitution” as it empowers citizens to approach the courts if their fundamental rights are violated. Article 32 and Article 226 empowers the Supreme Court and High Courts, respectively, to issue writs to safeguard the rights of the citizens. They can issue five types of writes, namely:
  1. Habeas Corpus – To prevent unlawful detention.
  2. Mandamus – To compel a public official to perform their duty.
  3. Prohibition – To stop lower courts from exceeding their jurisdiction.
  4. Certiorari – To quash an illegal order or decision of a lower court.
  5. Quo Warranto – To challenge a person’s authority in holding a public office.

Enforceability of Fundamental Rights

In India, fundamental rights are traditionally enforceable only against the “State” (government bodies and public authorities). However, through landmark rulings, the Supreme Court has expanded the enforcement of certain rights (like Articles 19 and 21) against private entities, while a few specific rights explicitly apply to both state and private actors.

While majority of Fundamental Rights are available against State action; a few of them are available against private entities as well, such as private companies, corporations, and individual citizens. These include:

  • Art. 15(2) – Prohibits citizens and private individuals from discriminating against others on grounds of religion, race, caste, sex, or place of birth in accessing public spaces like shops, hotels, restaurants, etc.
  • Art. 17 (Abolition of Untouchability) – Enforceable against both the State and private individuals.
  • Art. 23 (Prohibition of Forced Labour) – Enforceable against private employers and individuals.
  • Art. 24 (Prohibition of Child Labour) – Prohibits child labour in factories/hazardous jobs, whether run by the State or private entities.

Case: P.D. Shamdasani v. Central Bank of India (1952)

In this case, the petitioner, in an application under Article 32 of the Constitution, sought the protection of the Court on the ground that his property right under Articles 19 (1)(f) was infringed by the action of another private person - the Central Bank of India. The Supreme Court dismissed the petition and held: “Article 19(1) was not intended to prevent wrongful individual’s acts or to provide protection against merely private conduct.”

In short, Fundamental Rights are available against the State and not against private individuals because there already are enough safeguards under ordinary laws for such disputes.

Rights Available to only Indian Citizens

The rights that are only applicable for the citizens of India and not any alien:

  1. Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth 
  2. Article 16: Equality of opportunity in matters of public employment 
  3. Article 19: Protection of six rights regarding freedom of speech and expression, assembly, association, movement, residence, and profession
  4. Article 21: Protection of life and personal liberty
  5. Article 30: Right of minorities to establish and administer educational institutions.

Rights Applicable for All

The rights that apply to Indian Citizens as well as any foreigner aliens:

  1. Article 14: Equality before the law and equal protection of laws 
  2. Article 20: Protection in respect of conviction for offences 
  3. Article 21: Protection of life and personal liberty 
  4. Article 22: Protection against arrest and detention in certain cases 
  5. Article 23: Prohibition of traffic in human beings and forced labour
  6. Article 24: Prohibition of employment of children in factories etc.
  7. Article 25: Freedom of conscience and free profession, practice and propagation of religion 
  8. Article 26: Freedom to manage religious affairs
  9. Article 27: Freedom from payment of taxes for promotion of any religion
  10. Article 28: Freedom from attending religious instruction or worship in certain educational institutions