Indian Polity — Fundamental Rights (Part-III: Article 12-35)

Figure 1: Fundamental Rights are the Magna Carta of the Indian Constitution and are frequently tested in UPSC examinations.

1. Article 22: Protection Against Arrest and Detention

Article 22: It grants protection to persons who are arrested or detained in certain cases. [UPSC 2023]
Preventive detention: Without trial and conviction by court.
Punitive detention: Punishment after trial and conviction.

Article 22(1): Rights of a Person Arrested or Detained Under Ordinary Law

Right to be informed of the grounds of arrest
Right to consult and be defended by a legal practitioner
Right to be produced before a magistrate within 24 hours (excluding the journey time)
Right to be released after 24 hours unless the magistrate authorises further detention
These safeguards are not available to an enemy alien or a person arrested or detained under a preventive detention law.

Article 22(2): Protection Under Preventive Detention Law

Available to both citizens as well as aliens.
The detention of a person cannot exceed three months unless the advisory board reports sufficient cause for extended detention. The board is to consist of judges of a High Court.
Article 22 also authorises the Parliament to prescribe:
- Circumstances and classes of cases in which a person can be detained for more than three months under a preventive detention law without obtaining the opinion of an advisory board
- Maximum period for which a person can be detained under a preventive detention law
- Procedure to be followed by an advisory board
Parliament has exclusive authority to make a law of preventive detention with respect to defence, foreign affairs and the security of India.
Both Parliament and state legislatures can concurrently make a law of preventive detention for security of state, maintenance of public order, supplies & services essential to the community.
No democratic country in the world has made preventive detention as an integral part of the Constitution as has been done in India.

Article 22(5): Preventive Detention Rights

Requires detainees to be informed of the grounds for detention
Opportunity for Representation: Guarantees the right to challenge detention legally

Prevention of Terrorism Act (POTA), 2002

Purpose: Strengthen anti-terrorism operations; repealed in 2004.
Confession Admissibility: Allowed confessions to police officers of a specified rank to be used in trials, raising concerns about coercion. [UPSC 2023]

📝 UPSC Previous Year Questions:

UPSC Prelims 2023: Article 22 grants protection to persons who are arrested or detained. Answer: True.
UPSC Prelims 2023: POTA allowed confessions to police officers to be used in trials. Answer: True.

2. Article 21A: Right to Education

Article 21A (inserted by the 86th CAA, 2002): State shall provide free and compulsory education to all children of the age of 6-14 years, in such manner as the State may, by law, determine.
This provision makes only elementary education a fundamental right, not higher or professional education.
In pursuance of Article 21A, the Parliament enacted the Right of Children to Free and Compulsory Education (RTE) Act, 2009.
In the Unni Krishnan case (1993), the Supreme Court recognized a fundamental right to primary education in the right to life under Article 21.
86th CAA (2002): Education for All is considered the "Dawn of the second revolution in the chapter of citizen's rights".

Other Changes Made by the 86th CAA, 2002

Article 45 in Part IV (DPSP): Provision for free education — changed to: The state shall endeavour to provide early childhood care and education to children until they complete the age of 6 years.
Article 51A (Fundamental Duties): Added duty of every citizen to provide opportunities for education to his child or ward between the age of 6 and 14 years.

KNOWLEDGE NUGGET — 86TH CAA, 2002

Article 21A: Free and compulsory education for 6-14 years
Article 45 (DPSP): Early childhood care for children below 6 years
Article 51A(k): Duty of parent/guardian to provide education to child aged 6-14
RTE Act, 2009: Enacted in pursuance of Article 21A

3. Right Against Exploitation (Article 23-24)

Article 23: Prohibition of Traffic in Human Beings and Forced Labour

Prohibition of traffic in human beings and forced labour.
This right is available to both citizens and non-citizens.
It is available against both the State and Private persons.
Exception: Article 23 permits the State to impose compulsory service for public purposes (e.g., Military service or social service), for which it is not bound to pay.
Expression "traffic in human beings" includes:
- Selling and buying of men, women and children like goods
- Immoral traffic in women and children
- Prostitution
- Devadasis
- Slavery
To punish these Acts, the Parliament has implemented the Immoral Traffic (Prevention) Act, 1956.

Article 24: Prohibition of Employment of Children

Prohibits the employment of children (below the age of 14 years) in any factory, mine or other hazardous activities like construction work or railway. [UPSC 2017]
It does not prohibit their employment in any harmless or innocent work.
Commissions for Protection of Child Rights Act, 2005: Enacted to provide for the establishment of National and State Commissions for Protection of Child Rights and Children's Courts for providing speedy trial of offences against children or of violation of child rights.
Supreme Court: Directed the establishment of the Child Labour Rehabilitation Welfare Fund.
In 2006, the government banned the employment of children as domestic servants or workers in business establishments like hotels, dhabas, restaurants, shops etc. Anyone employing children below the age of 14 years will be liable for prosecution and penal action.

📝 UPSC Previous Year Questions:

UPSC Prelims 2017: Article 24 prohibits employment of children below the age of 14 years in hazardous activities. Answer: True.

4. Right to Freedom of Religion (Article 25-28)

Article 25: Freedom of Conscience and Free Profession, Practice and Propagation of Religion

All persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion.
Freedom of conscience: Inner freedom of an individual to mould his relation with God or Creatures in whatever way he desires.
Right to profess: Declaration of one's religious beliefs and faith openly and freely.
Right to practice: Performance of religious worship, rituals, ceremonies and exhibition of beliefs and ideas.
Right to propagate: Transmission and dissemination of one's religious beliefs to others or exposition of the tenets of one's religion.
- Right to propagate does not include a right to convert another person to one's own religion. Forcible conversions impinge on the 'freedom of conscience' guaranteed to all persons alike.
Article 25 covers: Religious beliefs (doctrines) and religious practices (rituals).
Article 25 also contains two explanations:
- Wearing and carrying of kirpans is to be included in the profession of the Sikh religion
- Hindus include Sikhs, Jains and Buddhists
Available to all persons: Citizens as well as non-citizens.
Exceptions: Public order, morality, health and other provisions relating to fundamental rights.

Article 26: Freedom to Manage Religious Affairs

Every religious denomination or any of its sections shall have the following rights:
- Right to establish and maintain institutions for religious and charitable purposes
- Right to manage its own affairs in matters of religion
- Right to own and acquire movable and immovable property
- Right to administer such property in accordance with law
Article 25 guarantees the rights of individuals, while Article 26 guarantees the rights of religious denominations or their sections, thus protecting the collective freedom of religion.
Restrictions: Article 26 is subject to public order, morality and health but not subject to other provisions relating to the fundamental rights.

Supreme Court on Religious Denominations

SC held that religious denominations must satisfy three conditions:
- It should be a collection of beliefs (doctrines) which they regard as conducive to their spiritual well-being
- It should have a common organisation
- It should be designated by a distinctive name
SC held that Ramkrishna Mission and Ananda Marga are religious denominations within the Hindu religion, while Aurobindo Society is not a religious denomination.

Article 27: Freedom from Taxation for Promotion of a Religion

No person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination.
Provision prohibits the state from favouring, patronising and supporting one religion over the other.
Taxes can be used for the promotion or maintenance of all religions and not any particular religion.
Provision prohibits only the levy of a tax and not a fee — Fee can be levied on religious endowments for meeting the regulation expenditure.

Article 28: Freedom from Attending Religious Instruction

No religious instruction shall be provided in any educational institution wholly maintained out of state funds.
Not applicable to educational institutions administered by the state but established under any endowment or trust, requiring imparting of religious instruction in such institutions.
No person attending any educational institution recognised by the state or receiving aid out of state funds shall be required to attend any religious instruction or worship in that institution without his/her consent.

Article 28 Distinguishes Four Types of Educational Institutions

Institution wholly maintained by the state — completely prohibited
Institution administered by the state but established under any endowment or trust — religious instruction is permitted
Institution recognised by state — permitted on a voluntary basis
Institution receiving aid from the state — permitted on a voluntary basis

5. Cultural and Educational Rights (Article 29-30)

Article 29: Protection of Interests of Minorities

Rights of a group: It provides that 'any section of the citizens' residing in any part of India having a distinct language, script or culture of its own, shall have the right to conserve the same.
Right of a citizen as an individual: No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, or language.
Article 29 grants protection to both religious minorities as well as linguistic minorities.
The Supreme Court held that:
- The term 'section of the citizens' includes minorities as well as the majority.
- The right to conserve the language includes the right to agitate for the protection of the language.

Article 30: Right of Minorities to Establish and Administer Educational Institutions

All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
The compensation amount fixed by the State for the compulsory acquisition of any property of a minority educational institution shall not restrict or abrogate the right guaranteed to them.
In granting aid, the State shall not discriminate against any educational institution managed by a minority.
The protection under Article 30 is confined only to minorities (religious or linguistic) and does not extend to any section of citizens.
The term minority has not been defined anywhere in the Constitution.
The right under Article 30 also includes the right of a minority to impart education to its children in its own language.

Types of Minority Educational Institutions

(a) Seeking recognition as well as aid from the State — Subject to the regulatory power of the state.
(b) Seeking only recognition from the State and not aid — Subject to the regulatory power of the state.
(c) Neither seeking recognition nor aid from the State — Free to administer their affairs but subject to the operation of general laws like contract law, labour law etc.

KEY POINTS ON ARTICLE 30

The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-à-vis the majority. There is no reverse discrimination in favour of minorities.
The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladministration.
In India, if a religious sect/community is given the status of a national minority, it is entitled to establish and administer exclusive educational institutions and can derive benefits from the Prime Minister's 15-Point Programme. [UPSC 2011]

6. Right to Constitutional Remedies (Article 32)

Article 32: These contain remedies for the enforcement of the fundamental rights of an aggrieved citizen. The right to get the Fundamental Rights protected is in itself a fundamental right.

Four Provisions in Article 32

Right to move to the Supreme Court
The Supreme Court has the power to issue writs
Parliament can empower any other court to issue directions, orders and writs of all kinds
Right to move the Supreme Court shall not be suspended except as otherwise provided by the Constitution

DR. B.R. AMBEDKAR ON ARTICLE 32

"It is an article without which this constitution would be a nullity". It's the very soul of the Constitution and the very heart of it."

The Supreme Court ruled that its power under Article 32 is a Basic feature of the Constitution.
Violation of Fundamental Rights is the sine qua non for the exercise of the rights conferred by Article 32.
Constitutionally, the President can suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency (Article 359).
Enforcement of Fundamental Rights: The jurisdiction of the SC is original but not exclusive. It is concurrent with the jurisdiction of the High Court under Article 226.
SC ruled that where relief through the High Court is available under Article 226, the aggrieved party should first move the High Court.
Article 32 cannot be invoked to determine the constitutionality of an executive order or legislation unless it directly infringes any of the Fundamental Rights.

Writs: Types and Scope

Borrowed from English prerogative writs — fountain of justice.
Parliament, under Article 32, can empower any other court to issue these writs.
The Supreme Court (Article 32) and High Court (Article 226) can issue writs.

Types of Writs

Writ	Meaning	Use and Scope
Habeas Corpus	"To have the body of"	Used to release a person who has been unlawfully detained or imprisoned. Court orders the detaining authority to bring the detained person before the court to determine the legality of detention. Not issued when detention is lawful, contempt of court or legislature, by a competent court, or outside court jurisdiction.
Mandamus	"We command"	Commands a public authority to perform a public or statutory duty. Issued when a lower court, government officer, corporation, or public authority has failed or refused to fulfil its duty. Not issued against private individuals, for non-statutory departmental instructions, discretionary duties, contractual obligations, the President, State Governors, or Chief Justice acting judicially. [UPSC 2022]
Prohibition	"To forbid"	Issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction it does not possess. Only issued against judicial and quasi-judicial authorities. Not available against administrative authorities, legislative bodies, private individuals, or bodies. [UPSC 2024]
Certiorari	"To be certified" or "To be informed"	Used by a higher court to review the decision of a lower court or tribunal. Can be issued to quash a decision that has been made without jurisdiction or in violation of the rules of natural justice. Initially against judicial and quasi-judicial authorities, it was extended to administrative authorities in 1991. Not available against legislative bodies, private individuals, or bodies.
Quo Warranto	"By what warrant?"	Used to challenge the legality of a person's claim to a public office. Restrains the person from acting in an office to which he/she is not entitled. Applicable to substantive public offices of a permanent character created by statute or the Constitution. Can be sought by any interested person, not necessarily the aggrieved person. [UPSC 2022]

Comparison Between Writ Jurisdiction of Supreme Court vs High Court

Supreme Court (Article 32)	High Court (Article 226)
Narrower jurisdiction: can issue writs only for the enforcement of Fundamental Rights.	Wider jurisdiction: can issue writs not only for the enforcement of Fundamental Rights but also for "any other purpose" (Ordinary legal rights).
SC can issue writs against a person or government throughout the territory of India.	HC can issue writs against a person residing or against a govt or authority located within its territorial jurisdiction only or outside only if the cause of action arises within its territorial jurisdiction.
Mandatory: Remedy under Article 32 is in itself a Fundamental Right; SC may not refuse to exercise its writ jurisdiction.	Discretionary: Remedy under Article 226 is discretionary; HC may refuse to exercise its writ jurisdiction.

7. Armed Forces and Fundamental Rights (Article 33-35)

Article 33: Power to Restrict or Abrogate FRs in Application to Armed Forces

Parliament can restrict or abrogate, by law, Fundamental Rights in the application to:
- Members of Armed forces
- Paramilitary Forces
- Police forces
- Intelligence agencies
- Analogous forces
- Forces charged with the maintenance of public order
Parliamentary law enacted under Article 33 can also exclude the Court Martials (tribunals established under the Military law) from the writ jurisdiction of SC and HC, so far as enforcement of FR is concerned.
Power to make laws under Article 33 is conferred only on Parliament and not on state legislatures.
Any such law cannot be challenged in any court on the ground of contravention of any of the FR.
The expression 'members of the armed forces' also covers such employees of the armed forces as barbers, carpenters, mechanics, cooks, chowkidars, bootmakers, and tailors who are non-combatants.

Article 34: Restriction on FRs During Martial Law

When Martial Law is in force in any area within the territory of India, the FRs can be restricted. Borrowed from the English common law.
Martial law literally means 'military rule'. It refers to a situation where civil administration is run by the military authorities according to their own rules and regulations framed outside the ordinary law. It thus implies the suspension of ordinary law and the government by military tribunals. It is different from the military law that is applicable to the armed forces.
Supreme Court: Declaration of martial law does not ipso facto result in the suspension of writ of habeas corpus.
It empowers the Parliament to indemnify any government servant or any other person for any act done by him. The Act of Indemnity made by the Parliament cannot be challenged in any court on the ground of contravention of any of the FR.
The expression 'martial law' has not been defined anywhere in the Constitution.
No specific or express provision in the Constitution that authorises the executive to declare martial law; it is implicit in Article 34.

Difference Between Martial Law and National Emergency

Martial Law	National Emergency (Article 352)
Affects only Fundamental Rights.	Affects not only Fundamental Rights but also the Centre-state relations, distribution of revenues and legislative powers between centre and states and may extend the tenure of the Parliament.
It suspends the government and ordinary law courts.	It continues the government and ordinary law courts.
Imposed to restore the breakdown of law and order due to any reason.	Imposed only on three grounds — war, external aggression or armed rebellion.
Imposed in some specific areas of the country.	Imposed either in the whole country or in any part of it.
No specific provision in the Constitution. It is implicit.	Specific and detailed provisions in the Constitution. It is explicit.

Article 35: Legislation to Give Effect to Certain FRs

It lays down that the power to make laws, and to give effect to certain specified fundamental rights, shall vest only in the Parliament and not in the state legislatures. Ensures there is uniformity throughout India with regard to the nature of those FRs and punishment.

Parliament Shall Have (and Legislature of a State Shall Not Have) Power to Make Laws with Respect To

Article 16: Prescribing residence as a condition for certain employment or appointments
Article 32: Empowering courts other than SC and HC to issue directions, orders and writs
Article 33: Restricting or abrogating the application of FR to members of armed forces, police forces, etc.
Article 34: Indemnifying any government servant or other person for any act done in martial law

Parliament Shall Have Powers to Make Laws for Prescribing Punishment

Article 17: Untouchability
Article 23: Traffic in human beings and forced labour

KEY POINT

Article 35 extends the competence of the Parliament to make a law on the matters specified above, although some of those matters may fall within the sphere of the state legislatures (State List).

8. Exceptions to Fundamental Rights

The scope of operation of Fundamental Rights is limited by:

Article 31A: Saving of Laws

Saves five categories of laws from being challenged for contravention of the fundamental rights conferred by Article 14 and Article 19:
- Acquisition of estates and related rights by the State
- Taking over the management of properties by the State
- Amalgamation of corporations
- Extinguishment or modification of rights of directors or shareholders of corporations
- Extinguishment or modification of mining leases

Article 31B: Validation of Certain Acts and Regulations

Saves the acts and regulations included in the Ninth Schedule (added by First Amendment in 1951) from being challenged for contravention of any of the fundamental rights.
SC in I.R. Coelho case (2007):
- No blanket immunity from judicial review of laws included in the Ninth Schedule.
- Judicial review is a "basic feature" of the constitution.
- Such laws placed after April 24, 1973 (the date of Kesavananda Bharati judgment), are open to challenge in court if they violated fundamental rights.

Article 31C: Saving of Laws Giving Effect to Certain Directive Principles

No law that seeks to implement the socialist DPSP specified in Article 39(b) or (c) shall be void on the ground of contravention of the FR conferred by Article 14 or Article 19.

📝 UPSC Previous Year Questions:

UPSC Prelims 2022: Mandamus is not issued against the President, State Governors, or Chief Justice acting judicially. Answer: True.
UPSC Prelims 2022: Quo Warranto can be sought by any interested person, not necessarily the aggrieved person. Answer: True.
UPSC Prelims 2024: Prohibition is not available against administrative authorities, legislative bodies, private individuals, or bodies. Answer: True.

9. Rights Outside Part III

Article 265/Part XII: No tax shall be levied or collected except by authority of law.
Article 300-A/Part XII: No person shall be deprived of his property save by authority of law.
Article 301/Part XIII: Trade, commerce and intercourse throughout the territory of India shall be free.
Article 326/Part XV: Adult Suffrage (Right to Vote): Constitutional right.
Constitutional Amendment 1989: Lowered the voting age of elections to the Lok Sabha and to the Legislative Assemblies of States from 21 to 18 years.

Universal Declaration of Human Rights (UDHR)

The General Assembly of the United Nations, on 10 December 1948, announced the 30 rights and freedoms that belong to everyone, under the Universal Declaration of Human Rights (UDHR).
Article 26 of UDHR: Right to free elementary education.
Article 27 of UDHR: Right to cultural participation and protection of intellectual work.
It promises to all the economic, social, political, cultural and civic rights for a life free from want and fear.
Reflected in the principles of Fundamental Rights, DPSPs, fundamental duties and the Preamble.
The Preamble's Justice, Equality, and Liberty reflect Article 3 of UDHR: right to life, liberty, and security.
DPSPs align with Article 22 of UDHR, ensuring social security and justice.
Fundamental Duties (Article 51A) are civic obligations, including ensuring education for children aged 6-14.

Key Takeaways for UPSC

Article 22: Protection against arrest and detention — Preventive detention can extend beyond 3 months with advisory board's approval
Article 21A: Free and compulsory education for 6-14 years (86th CAA, 2002)
Article 23: Prohibits traffic in human beings and forced labour
Article 24: Prohibits child labour below 14 years in hazardous activities
Article 25: Freedom of conscience and propagation of religion (conversion not included)
Article 26: Freedom to manage religious affairs (collective freedom)
Article 27: No taxation for promotion of any particular religion
Article 28: No religious instruction in state-maintained institutions
Article 29: Protection of minority interests (language, script, culture)
Article 30: Right of minorities to establish and administer educational institutions
Article 32: Right to Constitutional Remedies — Soul of the Constitution (Ambedkar)
Writs: Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo Warranto
Article 33: Parliament can restrict FRs for armed forces
Article 34: Restriction on FRs during Martial Law
Article 35: Parliament's exclusive power to legislate on certain FR matters
UDHR: Adopted on 10 December 1948

High-Yield Interactive UPSC Quiz (Fundamental Rights - Part 2)

Q1. Preventive detention in India cannot exceed three months unless approved by:

Correct Answer: C. Under Article 22, detention cannot exceed three months unless the advisory board, consisting of High Court judges, reports sufficient cause for extended detention.

Q2. Which constitutional amendment inserted Article 21A providing free and compulsory education?

Correct Answer: C. The 86th Constitutional Amendment Act, 2002 inserted Article 21A providing free and compulsory education to children aged 6-14 years.

Q3. Article 24 prohibits employment of children below which age in hazardous activities?

Correct Answer: B. Article 24 prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous activities. [UPSC 2017]

Q4. The right to propagate religion under Article 25 does NOT include:

Correct Answer: C. Right to propagate does not include the right to convert another person to one's own religion. Forcible conversions impinge on the 'freedom of conscience'.

Q5. Which Article guarantees the right of minorities to establish and administer educational institutions?

Correct Answer: B. Article 30 guarantees the right of minorities, whether based on religion or language, to establish and administer educational institutions of their choice.

Q6. Which writ is issued to release a person who has been unlawfully detained?

Correct Answer: B. Habeas Corpus (meaning "to have the body of") is used to release a person who has been unlawfully detained or imprisoned.

Q7. Which writ is NOT available against administrative authorities?

Correct Answer: C. The writ of Prohibition is only issued against judicial and quasi-judicial authorities and is not available against administrative authorities. [UPSC 2024]

Q8. Dr. B.R. Ambedkar described which Article as the "soul of the Constitution"?

Correct Answer: D. Dr. B.R. Ambedkar described Article 32 (Right to Constitutional Remedies) as the "soul of the Constitution and the very heart of it."

Q9. According to the I.R. Coelho case (2007), laws placed in the Ninth Schedule after which date are open to judicial review?

Correct Answer: C. In the I.R. Coelho case (2007), the SC held that laws placed in the Ninth Schedule after April 24, 1973 (the date of Kesavananda Bharati judgment), are open to challenge in court if they violate fundamental rights.

Q10. The Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly on:

Correct Answer: B. The Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly on 10 December 1948.

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