Rights in the Indian Constitution

Written and reviewed by Subhra Gupta, Humanities faculty at UniDrill (M.A. Sociology, University of Delhi · 7 years teaching Humanities). Based on NCERT Political Science Class XI (Indian Constitution at Work), Chapter 2.

What happens when the state forgets a person?

In 1982, just before the Asian Games, migrant workers were building stadiums and flyovers in Delhi. Many were paid less than the minimum wage. A team of social scientists studied their condition and went to the Supreme Court. The Court held that paying less than the minimum wage amounts to begar, forced labour, which the Constitution forbids.

Now a second story. Machal Lalung, a tribal man from Assam, was arrested in 1951 at the age of 23. He was never tried. He stayed in custody as an undertrial for 54 years. His case shows what the denial of the right to life and personal liberty, including a fair and speedy trial, looks like in real life.

Both cases show why a country writes rights into its Constitution. A right is only useful if someone can enforce it. This chapter explains the rights India's citizens hold, how they are enforced and where they fit alongside duties and goals.

Why have a Bill of Rights?

A Bill of Rights is a list of rights that a constitution itself mentions and protects. India's demand for one is old. The Motilal Nehru Committee asked for a bill of rights as early as 1928. The Constitution put it in Part III as the Fundamental Rights.

Fundamental Rights differ from ordinary legal rights. They are guaranteed by the Constitution and can be changed only by a constitutional amendment, not by an ordinary law. They are the practical form of the values in the Preamble: liberty, equality and justice. They also set limits on government. South Africa's 1996 constitution shows how wide a bill of rights can be: it includes dignity, privacy, fair labour practices, a healthy environment, housing, health care, food, water and information.

The six Fundamental Rights at a glance

Right to Equality

Article 16(4) in plain words. The State may make provisions for the reservation of posts for any backward class of citizens that, in the State's opinion, is not adequately represented in the services. The chapter treats this not as a break from equality but as a way of fulfilling equality of opportunity. Where groups start from unequal positions, treating everyone identically can keep the gap in place.

Two views. For the exam: reservation under Article 16(4) is a means to achieve equality of opportunity, not an exception to it. Another reading: scholars distinguish between formal equality, where everyone is treated exactly alike, and substantive equality, where the law takes account of unequal starting points. Supporters of formal equality worry that group-based provisions can conflict with individual equal treatment, while supporters of substantive equality argue that equal treatment of unequals reproduces inequality. The Constitution's text and the chapter's reading follow the second view.

Right to Freedom

Article 19 guarantees six freedoms: speech and expression; peaceful assembly; forming associations and unions; moving freely throughout India; residing and settling in any part of India; and practising any profession or carrying on any occupation, trade or business. These freedoms are not absolute and can be limited by law on reasonable grounds.

Beyond the textbook. For the exam: Article 19 gives six freedoms. In reality: the Constitution originally gave seven. The freedom to acquire, hold and dispose of property was in Article 19 until the 44th Amendment (1978) removed it along with the Fundamental Right to property. Why it matters: it explains why you will see "six" in the chapter, though older sources say "seven".

Articles 20, 21 and 22: personal liberty.

How Article 21 has grown. The text is short, but the Supreme Court has read it to include the right to live with dignity, free from exploitation, and the right to shelter and livelihood. The Olga Tellis case on pavement dwellers is a famous example, and the Machal Lalung case shows what happens when the right to a fair and speedy trial is not respected.

Preventive detention. Normal arrest follows an offence. Preventive detention is arrest on the apprehension that a person may do something unlawful that harms public order. The detention can last three months, after which an advisory board must review it. It is controversial because it limits liberty before any offence has been proved. The 24-hour rule applies to ordinary arrests and not to preventive detention.

Pause and predict: a person is arrested on Monday morning. When must she be produced before a magistrate, and does the answer change if she is held under preventive detention?

Check your answer: within 24 hours, excluding travel time, for an ordinary arrest. Preventive detention is different: the 24-hour rule does not apply, but there are other safeguards such as the three-month limit and the advisory board.

Right against Exploitation

Article 23 prohibits traffic in human beings, begar and other forced labour, meaning work without payment. Article 24 prohibits employing children below 14 in factories, mines and other hazardous work. The Asian Games case is the classic example: paying less than the minimum wage was held to be begar.

Right to Freedom of Religion

The State has no official religion and must treat all religions equally, which is the principle of secularism. Freedom of religion is subject to public order, morality and health, and the State can act against evils such as sati, bigamy and human sacrifice. The Constitution allows the propagation of religion but not forcible conversion.

Cultural and Educational Rights

Article 29 protects the interests of minorities by letting them conserve their language, script and culture. Article 30 gives religious and linguistic minorities the right to establish and run their own educational institutions, and the government cannot discriminate in giving aid to such institutions. The textbook covers both religious and linguistic minorities, not religious ones alone.

Right to Constitutional Remedies

B.R. Ambedkar called Article 32 the "heart and soul" of the Constitution. A right without a remedy would be a promise only on paper. Article 32 lets a citizen go straight to the Supreme Court if a Fundamental Right is violated. Article 226 gives High Courts a similar power. Article 32 is itself a Fundamental Right, while Article 226 is not.

The courts issue orders called writs.

Beyond the textbook. For the exam: certiorari is about transferring a case from a lower to a higher court, and prohibition is about stopping a lower court. In reality: in legal practice, certiorari is mainly used to set aside or quash an order that a lower court or authority has already passed, while prohibition is used to prevent it from proceeding before it decides. Why it matters: use the textbook version in the exam, and use the working version to remember why the two are different.

Other protectors of rights. Courts are not the only guardians. Statutory and constitutional bodies such as the National Commission for Minorities, the National Commission for Women, the National Commission for Scheduled Castes and the National Human Rights Commission (NHRC) also work to defend rights. The NHRC was set up in 1993. It is made up of retired judges of the higher judiciary and members with human-rights expertise. It can inquire and recommend but cannot prosecute.

Directive Principles and Fundamental Duties

Directive Principles of State Policy are in Part IV. They are guidelines for the State and cannot be enforced in court, which is why they are called non-justiciable, but they are still morally binding on government. The chapter groups them in three sets.

Many have been put into practice, such as the abolition of zamindari, bank nationalisation, factory laws, minimum wages, reservation for SCs and STs, the right to education, panchayati raj, employment guarantee schemes and the mid-day meal scheme.

Fundamental Duties were added in Part IVA (Article 51A) by the 42nd Amendment in 1976, after the Emergency. Ten were listed at first. The 86th Amendment later added an eleventh, the duty of parents and guardians to provide opportunities for education to a child aged 6 to 14. The enjoyment of rights is not made conditional on performing duties. Duties are moral obligations that the State expects citizens to meet.

The story of the right to property

Two views. For the exam: the right to property was removed from Fundamental Rights so that land reform and other social policies could go ahead. It is now a legal right in Article 300A. Another reading: some argue that taking property out of the Fundamental Rights weakened protection for individuals against the State, because the remedy under Article 32 is no longer available. Others reply that Article 300A still requires authority of law before anyone is deprived of property, and that the change served social justice. Both sides use the same facts.

A link to reform. Jotirao Phuley (1827 to 1890) was one of the earliest Indian thinkers to connect rights with both freedom and equality, which ties the Constitution's rights to the earlier social reform tradition.

Exam traps

60-second revision

Where this chapter connects

• Previous: Constitution: Why and How? explains the limits on government and the identity of a people that rights express.
• Related: Rights discusses the idea of rights in theory, and Freedom explains the liberty behind Article 19.
• Also see: Judiciary shows how the courts enforce Fundamental Rights, and Secularism explains the principle behind Articles 25 to 30.