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Fundamental Rights - II
Fundamental Rights - II
Article (23-35)
Article Related Subject-Matter
23 Prohibition of traffic in human beings and forced labor
24 Prohibition of employment of children in factories and hazardous
employment
25 Freedom of conscience and free profession, practice, and propagation of
religion
26 Freedom to manage religious affairs
27 Freedom from payment of taxes for the promotion of any religion
28 Freedom from attending religious instruction or worship in certain
educational institutions
29 Protection of interests of minorities
30 Right of minorities to establish and administer educational institutions
31 [Omitted by 44th Amendment]
32 Right to Constitutional Remedies
33 Power of Parliament to modify the rights conferred by this Part in their
application to Forces, etc.
34 Restriction on rights while martial law is in force in any area
35 Legislation to give effect to certain provisions of this Part
Right Against Exploitation
● Article 23: Prohibition of Trafficking in Human Beings and Forced Labour
○ Protection extends to private actions as well.
○ Economic compulsion is also considered a form of exploitation.
○ Exception: Compulsory military service is allowed under certain circumstances.
● Article 24: Prohibition of Employment of Children in Factories
○ Employment of children in harmless activities is not prohibited.
○ The Commission for Protection of Child Rights Act, 2005 was passed to
establish national and state commissions for child rights.
Right to Freedom of Religion
● Article 25: Freedom of Conscience and Free Profession, Practice, and
Propagation of Religion
○ Forced conversions are prohibited.
○ Both citizens and non-citizens are entitled to this freedom.
○ It includes both religious rituals and personal practices.
○ This provision guarantees individual rights in religious matters.
○ The state can regulate religious institutions to ensure welfare.
○ The state can also undertake social reforms related to religion.
● Article 26: Freedom to Manage Religious Affairs
○ Religious organizations are allowed to establish institutions and manage their
affairs.
○ Religious bodies have the right to own property and administer it.
○ Religious denominations are not subject to other provisions of the fundamental
rights.
○ Religious denomination refers to a group of individuals sharing common religious
beliefs, with an established organization and a distinct name.
● Article 27: Freedom from Taxation for Promotion of Religion
○ Prohibits the imposition of taxes for promoting any particular religion.
● Article 28: Freedom from Religious Instruction
○ Institutions fully funded by the state are prohibited from imparting religious
education.
○ Institutions administered by the state but established by a private trust are
allowed.
○ Voluntary institutions recognized by the state are also permitted.
○ Religious instruction in institutions receiving voluntary state aid is allowed.
Cultural and Educational Rights
● Article 29: Right to Preserve Distinct Language, Script, or Culture
○ Discrimination based on language in educational institutions is prohibited.
○ This right protects both religious and linguistic minorities.
○ It applies not only to minorities but to all individuals.
● Article 30: Right to Establish and Administer Educational Institutions
○ Both religious and linguistic minorities have the right to establish and manage
educational institutions.
○ This provision specifically safeguards the rights of minority groups.
● Article 32: Right to Constitutional Remedies
○ It is the most crucial provision for safeguarding fundamental rights.
○ Parliament can empower other courts to issue directions, orders, and writs of all
types.
○ The President can suspend the enforcement of fundamental rights during a
national emergency under Article 359.
○ Article 32 can only be invoked in cases where there is a violation of fundamental
rights.
Writs
○ Before 1950: Only the High Courts of Bombay, Madras, and Calcutta had the
authority to issue writs.
○ The writ jurisdiction of the Supreme Court is narrower compared to High Courts
but covers a larger territorial area.
○ The Supreme Court is the primary defender and guarantor of fundamental rights.
○ Habeas Corpus:
■ A writ used to protect individual liberty against arbitrary detention.
■ Can be issued against public and private individuals.
■ Cannot be issued in cases where detention is lawful, for contempt of
court, or by a competent court.
○ Mandamus:
■ A writ demanding public officials to perform their legal duties.
■ Can be issued against inferior courts but not private individuals or bodies.
■ Not applicable for enforcing discretionary duties, contractual obligations,
or actions of the President, Governor, or Chief Justice of High Courts.
○ Prohibition:
■ Issued by a higher court to a lower court to prevent exceeding
jurisdiction.
■ Only applicable against judicial and quasi-judicial bodies.
■ Not available against administrative bodies, legislative bodies, or private
individuals.
○ Certiorari:
■ Similar to prohibition, but it is also curative in nature.
■ Can be issued against administrative authorities as well.
○ Quo-Warranto:
■ Used to assess the legality of an individual’s claim to a public office.
■ Can be issued against substantive public offices but not against
ministerial or private offices.
■ Any interested person may apply for this writ.
Article 33:
● Empowers Parliament to restrict or remove fundamental rights for members of armed
forces, police forces, paramilitary forces, intelligence agencies, and similar organizations
to ensure the proper discharge of their duties and maintain discipline.
Article 34:
● Provides restrictions on fundamental rights during martial law.
● Grants Parliament the authority to indemnify government servants for actions taken to
restore law and order under martial law, even if those actions violate fundamental rights.
● The term “martial law” is not defined in the Constitution.
● During martial law, military authorities are vested with extraordinary powers to take
necessary actions.
Difference between Martial law and National Emergency
Martial law National Emergency
It affects only FR It affects FR, center-state relations etc
It suspends the government and ordinary law Continues their existence
courts
Imposed to restore law and order War, external aggression or armed
rebellion
Imposed in some specific areas of the country Some or the whole of the country
No specific provision in the constitution Specific and detailed provision
Article 35: Effecting Certain Fundamental Rights
● The Parliament has the authority to legislate on specific matters, while state legislatures
are excluded from making laws in the following areas:
○ Establishing residency as a prerequisite for certain employment or positions
within a union territory, local authority, or any other governing body.
○ Empowering courts other than the Supreme Court and High Courts to issue
various types of orders, directions, and writs.
○ Modifying or removing the application of fundamental rights for members of
armed forces, police, and similar forces.
○ Granting indemnity to government officials or others for actions taken during the
enforcement of martial law in any region.
○ Penalizing actions related to untouchability.
○ Prohibiting human trafficking and forced labor.
Exceptions to Fundamental Rights
● Article 31A: Saving of Laws Providing for the Acquisition of Estates, etc.
○ Five specific types of laws are protected from being challenged under Article 14
(Right to Equality) and Article 19 (Freedom of Speech and Expression):
■ Laws related to the acquisition of estates or related rights by the state.
■ Laws enabling the government to take over the management of
properties.
■ Legislation concerning the amalgamation of corporations.
■ Laws that extinguish or modify the rights of directors or shareholders of
companies.
■ Laws that extinguish or alter mining leases.
● Article 31B: Validation of Certain Acts and Regulations
○ This article shields the acts and regulations included in the Ninth Schedule from
being invalidated for violating fundamental rights.
○ However, the Supreme Court has ruled that laws enacted after the
Keshavananda Bharati case can still be challenged if they infringe upon the
fundamental rights guaranteed by Articles 14, 15, 19, and 21.
● Article 31C: Saving of Laws Giving Effect to Certain Directive Principles
○ This provision has two key aspects:
■ A law shall not be considered void if it seeks to implement Article 39(b) or
Article 39(c), even if it conflicts with Articles 14 or 19.
■ Courts are prohibited from questioning such laws, ensuring they enforce
the policy reflected in these provisions. (This provision was later declared
unconstitutional by the court in the Keshavananda Bharati case.)
Significance of Fundamental Rights
● Fundamental rights serve as the foundation of political democracy.
● These rights provide both material and moral protection to individuals.
● They act as a safeguard for individual liberty.
● They facilitate the establishment and maintenance of the rule of law in the country.
● Fundamental rights protect the interests of minorities and vulnerable groups in society.
● They reinforce the secular nature of the Indian state.
● They function as a limitation on the unchecked powers of the government.
Criticisms of Fundamental Rights
● Excessive Limitations: Fundamental rights are criticized for being overly restricted in
certain areas.
● Absence of Socio-Economic Rights: There is a lack of provisions for certain
socio-economic rights, which are crucial for welfare.
● Lack of Clarity: The scope and interpretation of some fundamental rights remain
unclear and debatable.
● No Permanency: The possibility of suspension of fundamental rights during emergencies
creates concerns over their permanence.
● Suspension During Emergencies: The power to suspend these rights in an emergency
situation undermines their protection.
● Expensive Remedy: The process of seeking redress for violations of fundamental rights
through legal means can be expensive.
● Preventive Detention: The use of preventive detention is controversial as it allows
individuals to be detained without trial, infringing on their rights.
● No Consistent Philosophy: There is a perceived lack of a consistent or cohesive
philosophical approach to fundamental rights across the legal system.
