This article is written by Deepanshi Sharma.

What are Fundamental rights?

Fundamental rights are the basic human rights that are guaranteed to the citizens of India (to all people in case of article 14) by the Indian Constitution. They act as a limitation to the power of the State. These rights are highly revered and any law that is found to be in contravention of them can be challenged in the Supreme Court by the virtue of article 32 of the Constitution, and subsequently struck down to the extent of the inconsistency. The Supreme court can also pass any appropriate order, direction, or writ for the enforcement of these rights. Similar powers are present with the High Courts under article 226 as well.

In case of violation of the fundamental rights, the Courts can be approached not only by the aggrieved person but by any public-spirited person or social action group, acting in good faith, for the socially and economically disadvantaged people who otherwise cannot approach the Court (Subhash Kumar v state of Bihar). This can be done through a simple letter as well (State Of Himachal Pradesh vs A Parent Of A Student Of Medical College). Therefore these rights can be enforced relatively easily. Moreover, a fundamental right cannot be given up by individuals through their own consent. In Behram Singh v State of Bombay, it was held that they are provided not only for benefit of the citizens but on the grounds of public policy as well.

However, can fundamental rights be amended/changed by the legislature?

The Basic Structure Doctrine

A thirteen-judge bench in Keshwananada Bharti v State of Kerala, overturning the landmark judgment of Golak Nath, I.C. v State of Punjab, held that any part of the constitution can be amended, abrogated or abridged without changing the basic foundational values and structure of the constitution. However, a definitive list of what constituted the basic structure was not declared.

The Court in Indira Nehru Gandhi, Smt. v Rajnarain noted that whether any particular part of the constitution forms a part of the basic structure, or not, has to be judged individually as it comes before the court. Post this, several features have been declared as a part of it in different cases. For instance, the Minerva Mills Case declared a constitutional amendment which removed the limitation imposed on the power of the legislature as unconstitutional. It held that limited amending power is part of the basic structure of the constitution and thus, cannot be altered.

Fundamental Rights as Basic Structure

A nine-judge bench in I R Coelho v Union of India recalled the importance given to the articles 14, 19 and 21 in various precedents, including by Justice Chandrachud in Minerva Mills Case. It noted that these three articles have been considered as the part of the basic structure in the Indian Constitutional History. Since the inclusion of a law in the 9th schedule resulted in the abrogation of article 32 of the constitution, it effectively removed such a law from being tested against article 14, 19 and 21 and thus were held to be in contravention of the basic structure doctrine.

Along with enlarging the idea of the basic structure doctrine to include these three Fundamental right, the Court held that any law has to satisfy the direct impact and effect test which judges the effects of such law on the basic structure of the Constitution.

Therefore, the essence of these Fundamental Rights cannot amended, abrogated or abridged. However, are these rights themselves absolute?

Fundamental rights are not absolute

Right to Equality

It is incorrect to say that all laws have to be made applicable to everyone uniformly owing to the right to equality. The concept of equality envisioned in the Constitution necessitates giving consideration to the social and economic inequalities present in the society (para 100, St. Stephen College v University of Delhi). To elevate these, the State, through legislation, are entitled to make reasonable classification to treat differently placed people differently (State of Bombay v Balsara).

Doctrine of Reasonable Classification

While article 14 prohibits class legislation, it does not prohibit classification for the purpose of ensuring equality to those who, by virtue of nature, attainment or circumstances, are differently positioned. For this purpose, differential law based on reasonable classification is permitted. A classification to be considered reasonable has to satisfy two tests-

• Intelligible Differentia: The classification must be made on an intelligible differentiating factor which distinguishes persons or things that are included in a group from those who are left out.
• Reasonable nexus with the object: The classification must have a reasonable nexus with the object that such a statute aims to achieve. Such an aim, needless to mention, should be lawful in nature (Das J. in State of W.B. v Anwar Ali Sarkar)

Ps. Article 14 is a general provision and therefore, has to be read with all other provisions in Part III of the Constitution.

Special Law for Women and Children

Article 15(3) provides an exception to the rule against discrimination in article 15(1) and 15(2) (Dattaraya Mootiram v State of Bombay). This sub-section carves a place for special laws to be made for the benefit of women and children. For instance, an act mandating provision of maternity leave to women, or one for reservations for women in public employment [Government of A.P. v P.B. Vijaykumar; even beyond 50% (Taguru Sudhakar Reddy v govt of A. P.] would not be a contravention of the prohibition against discrimination.

Special Law made for Social and Economically Backward Classes, Scheduled Castes, and Scheduled Tribes

Aiming to correct the historic discrimination that some classes/groups of people have had experienced or still experience, the Constitution allows positive discrimination for their benefit in Article 15(4).

Added in the First Amendment, this subsection is another exception to the rule against discrimination. It provides the State with the power to make special laws for the Backward classes, Scheduled Castes and Scheduled Tribes. It is also an exception to Article 29(2) that prohibits denial of admission into any public educational institution based on religion, race, caste or language (M. R. Balaji and Ors. v State of Mysore). However, it must be ensured that policies undertaken under this section, if compensatory and protective discriminatory in nature, are reasonable and consistent with the public interest (Preeti Shrivastava Dr. v State of M.P.).

Furthermore, article 16 (4), (4A), and (4B) make it possible for the state to make reservations in appointments in the public sector for those “backward classes” [emphasis] which are not adequately represented in such services.

While the case of Indra Sawhney mentioned that reservations cannot be made in respect of promotions, it held that short of reservations, special provisions could be made to facilitate promotions of members of such backward classes.

Right to Freedom

Article 19 grants the right to speech and expression, to assemble peacefully without arms, to form unions and association, to move freely throughout India, to reside and settle in anyplace such, and to practice any profession, occupation, trade or business. However, these rights given under Article 19(1) can be restricted by law made by the state under respective conditions mentioned in the clause 2 of the same article.

Reasonable Restrictions

Owing to the addition of word “reasonable” by the first amendment, such restrictions have to be within reasonable limits. These restrictions should be reasonable in substance as well as in the procedure laid in such a law. For instance, the procedure for carrying out such law should be in consonance with principles of natural justice. Moreover, the reasonability of the restriction should be judged from the aspect of the general public’s interest (Mohd. Hanif Quershi v State of Bihar)

Grounds for restriction in article 19(2)

Reasonable restrictions on freedom can be placed for the following purposes:

• Sovereignty and Integrity of India (added in the sixteenth amendment): To guard against attack on the territorial sovereignty and integrity of India (not the constituent states, as per Romesh Thapar v State of Madras)
• Security of the State: To guard against the use of freedom to overthrow, wage, or rebel against the government. This includes restriction of indirect actions towards these aims, for instance, incitement.
• Friendly relations with foreign nations (first amendment): To restrict the speech of individuals that can hamper friendly relations of India with a foreign state.
• Public order (first amendment): To preserve public order or “public peace, safety and tranquility” (Central Prison v Ram Manohar Lohia). Restriction on indirect acts, which have a tendency to lead to disorder is also within the scope of this restriction as long as there is a reasonable and direct nexus of the restricted act with the objective of maintaining public peace.
• Decency and morality: To protect and promote public decency and morality.
• Contempt of Court: To prevent contempt of court as defined in section 2 of the Contempt of Court Act. Such contempt of court has to be manifest, malicious, and substantial in nature (E.M.S. Namboodiripad v T.N. Nambiar).
• Defamation: To prevent defamation as it results in hatred or ridicule of another citizen.
• Incitement of an offence: To prevent speech that results in incitement to commit a crime and violate another person’s rights.
• Sedition: To prevent all those actions that lead to disturbance to the tranquillity of the state. However, criticism of the existing system and expression of a desire for a different system of state does not amount to sedition. The expression has to be judged based on the intention and likelihood of inciting disorder. (Nihrindu v.Empror the; Kedar Nath v State of Bihar)

Right to Life

Limited by the “procedure established by law”

Article 21 ensures right to life and personal liberty. However, it is immediately followed by the words “except according to procedure established by law”. This creates the possibility of limitations on various rights that come under the right to life and liberty. For example, punitive detention is a limitation that can be placed on the right to liberty. However, this right cannot be limited in any way except by following the procedure that is laid down by the act that prescribes such detention.

The limitation can only be placed by a law that has been enacted by any competent legislature and such procedure has to be “just, fair, and reasonable”. Also, the validity of the procedure established has to be judged against Article 14 (therefore, reasonability is requisite) as well as Article 19 as these rights are not exclusive of each other (Golden triangle rule) (Maneka Gandhi v. Union of India).

It is also important to note that while the right to life includes several other rights, it does not include the right to die (Aruna Ramchandra Shanbaug v Union Of India).

Religious Freedom

On the grounds of Public order, Morality, and Health

While Article 25 provides for equal right to profess, practice, and propagate any religion, such freedom cannot be used to do acts which are harmful to public order, health, and morality (Ramjilal Modi v. State of UP). For instance, creation of hatred among groups while practising religion, which can have possible ramifications over public order as well as health, was held to be outside the scope of freedom of religion (Subhash Desai v Sharad J. Rao)

While converting is permissible and within the scope of this freedom, conversion for the purpose of taking the benefit of polygamy that was allowed in another religion, while a marriage in the previous one subsisted, was not held to be valid in the case of Lily Thomas v Union of India.

Similar conditions restrict the freedom to manage religious affairs under Article 26 as well.

Limited by other Fundamental Rights

Presence of this phrase in Article 25 (only) results in positioning the Freedom to Religion on a lower niche than other Fundamental Rights. To exemplify, playing of loud preachings was considered to promote noise pollutions and conflict with other people’s liberty to not hear such preachings (Church of God v. KKR Magestic Colony Welfare Ass.).

Conclusion

While the Fundamental Rights are an integral part of the Constitution, it would be incorrect to term them as unconditional. These rights, by the Constitution itself, are restricted by conditions which aim to balance the individual freedom and rights to the necessity of public good and welfare.