India at 75 | Fundamental rights and their expansion since Independence

A look at the fundamental rights and how the courts have interpreted them over seven decades

August 16, 2022 08:35 pm | Updated August 23, 2022 11:53 am IST

File photo of the Indian Supreme Court

File photo of the Indian Supreme Court

As former PM Dr. Manmohan Singh writes in The Hindu, ‘India must protect its hard-won freedoms.’

Indian citizens, under the Constitution, were guaranteed six fundamental rights - the right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies. However, since then, the Supreme Court has read the right to Information, the right to education, and the right to privacy into various fundamental rights, and given a broad interpretation to the right to life under Article 21. Moreover, the right to property has been made a constitutional right.

What are the basic fundamental rights?

Under Articles 14-32 of the Constitution, Indian citizens were granted the six fundamental rights, upheld time and again by the Supreme Court.

Right to equality: Under Articles 14-18, citizens are guaranteed equality before the law, protections against discrimination on the grounds of religion, race, caste, sex, place of birth, and equal opportunity in public employment. Under these articles, untouchability is abolished and its enforcement is deemed a punishable offence, citizens are prohibited from accepting any titles (except military or academic) and people holding office are prohibited from accepting emoluments from any foreign state unless consented to by the President.

Right to freedom: Articles 19-22 grant citizens the right to freedom of speech and expression, to assemble peacefully without arms, form associations or unions, move freely throughout India, reside and settle in any part of India, practice any occupation, trade or business. Under this right, no citizen can be convicted of any offence not covered by a law in force, be forced to stand witness against himself, or be deprived of personal liberty.  

Right against exploitation: Under Articles 23 and 24, Indians are protected from forced labour and children below the age of fourteen are prohibited from working in any factory or mine and from other hazardous work.

Right to freedom of religion: Articles 25-28 allow all Indians to profess, practise and propagate any religion freely. Communities can establish and maintain institutions for religious and charitable purposes, manage their own affairs, acquire property and are not compelled to pay taxes for practising their religion.

Cultural and educational rights: Under articles 29 and 30, all sections of Indian society have a right to a distinct language, script or culture of their own and cannot be denied admission into any government educational institution. All minorities have the right to establish and administer educational institutions and cannot be discriminated against by the State.

Representational Image

Representational Image | Photo Credit: Daria Golubeva

Right to constitutional remedies: Under Article 32, Indians have the right to move the Supreme Court for the enforcement of their rights. The apex Court is empowered to issue directions or orders for enforcing the same, except for pleas challenging the constitutional validity of state laws (as reinforced by the forty-third constitutional amendment, 1977).

The right to property which was listed as Article 31 was omitted by the Forty-fourth constitutional Amendment, 1978. However, the right to property is still a constitutional right – prohibiting state governments from compulsorily acquiring citizens’ property unless it is for a public purpose or a legal authority provides for compensation.

How have the Fundamental Rights been expanded since Independence?

Successive Supreme Court judgments and amendments have both upheld and expanded the scope of the protection afforded to Indian citizens under Part III of the Indian Constitution.

A key piece in the defence of fundamental rights is the Supreme Court’s landmark judgement in 1973 in the Kesavananda Bharati case – outlining the basic structure doctrine of the Constitution. In a 7:6 majority, the 13-judge SC bench held that although Parliament had the power to amend any part of the Constitution of India, it could not use this power to alter or destroy the “basic structure” of the Constitution – protecting citizens’ fundamental rights from alteration.

Right to food

The right to food as a basic amenity has been interpreted as part of the right to life under Article 21 by the Supreme Court in multiple judgements.

The Centre has taken steps to incorporate this in their programmes. In 2013, the Manmohan Singh government passed the National Food Security Act to ensure that 75 per cent of the rural population and up to 50 per cent of the urban population receives subsidized foodgrains under Targeted Public Distribution System (TPDS).

The Act allows eligible persons to receive 5 Kgs of foodgrains per person per month at subsidised prices of Rs. 3/2/1 per Kg for rice/wheat/coarse grains. Pregnant women and lactating mothers are entitled to maternity benefit of not less than Rs. 6,000 during pregnancy and six months after child birth while children under the age of fourteen are entitled to nutritious meals as per the prescribed nutritional standards.

Right to water, shelter and electricity

Right to water, shelter and electricity have also been declared as part of Article 21. . Right to clean drinking water, which has been suggested implicitly by the drafters of the Constitution of India as a fundamental resource, also finds several other mentions in the articles of the Constitution. Article 39 (b) and Article 47 task the State to make policies to distribute material resources among the people, raise nutrition levels and the standard of living of citizens and Article 262 empowers Parliament to make laws to solve inter-state river disputes. Article 51(A) tasks citizens with the fundamental duty of preserving the environment.

Similarly, the right to shelter has been declared a part of Articles 21 This right has been reinforced by several national laws - Recognition of Forest Rights Act (2006), Right to Fair Compensation and Transparency in Land Acquisition Act (2013), Protection of Human Rights Act (1993), Slum Areas Act (1956), Street Vendors Act (2014) – and Supreme Court judgements.

On March 16, 2021, the Kerala High Court ruled that electricity connection was an integral part of the fundamental right to life (Article 21). The Court noted that this right has been reinforced by the Electricity Act, 2005 which mandates that a distribution licensee must provide an electric connection to any applicant within one month

Right to education

Free and compulsory education of children in the 6 to 14 age group became a fundamental right when Article 21-A was inserted in the 86th Amendment to the Constitution in 2002.

While Indians have been granted educational rights under Articles 29 and 30, the Congress-led government in 2009 passed the Right to Education Act granting free and compulsory education to all children of the age of six to fourteen years, devoid of any kind of fee or charges or expenses. Under the Act, no school is allowed to hold back or expel any student from the school till he completes elementary education. Physical punishment and mental harassment of children is also prohibited.

File photo: At least 25% seats are set aside for the disadvantaged sections under Rule 9 of the Andhra Pradesh Right of Children to Free and Compulsory Education Rules, 2010.

File photo: At least 25% seats are set aside for the disadvantaged sections under Rule 9 of the Andhra Pradesh Right of Children to Free and Compulsory Education Rules, 2010. | Photo Credit: V RAJU

The Centre is also tasked with developing a framework for a national curriculum, enforcing standards for the training of teachers and providing support to state governments. Both the Centre and State must ensure admission, attendance and completion of elementary education by every child between six and fourteen, availability of school, and no discrimination against children of weaker section or those having disabilities. It should also provide infrastructure and staff in schools, training facilities and a proper curriculum.

Right to Information

The right to information has now been enshrined under Article 19, which guarantees the freedom of speech.

The United Progress Alliance (UPA) government passed the Right to Information (RTI) Act in 2005, empowering citizens to access government information and mandating a timely response to citizen requests for such data.

The Ministry of Personnel’s Department of Personnel and Training (DoPT) is tasked with providing an RTI Portal Gateway to search for information about first Appellate Authorities and Public Information Officers (PIOs), besides access to RTI-related informationpublished on the web by various public authorities under both the Centre and State governments.

Information which will affect national security, endanger another person or invade their privacy, or which may be contempt of court or breach of Parliamentary privileges are exempted under the RTI Act. Further, trade secrets, intellectual property, cabinet papers, or data received from foreign governments in confidence, are exempted from disclosure under the Act.

Right to privacy

Holding that the right to privacy was “intrinsic” to the fundamental right to life under Article 21, a nine-judge Supreme Court bench in 2017 paved the way for protecting Indian citizens’ privacy. The Supreme Court was hearing pleas challenging Aadhaar as a breach of privacy, informational self-determination and bodily integrity. While the Supreme Court has held that the Aadhaar card cannot be mandated as a personal form of identification by the government, several Central programmes collect citizens’ data via Aadhaar for various uses.   

To define privacy and to protect citizens’ personal data, the Modi government introduced the Personal Data Protection Bill, 2019 in Parliament. After referring it to a Joint Committee of Parliament (JCP), the Centre rolled back the Bill in August, promising to come up with a fresh bill that fits into the comprehensive legal framework suggested by the JCP.

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