- What a Bill of Rights is, and why the Indian Constitution has one
- The six Fundamental Rights in Part III of the Constitution, and what each actually guarantees
- How the judiciary protects rights, and the five special orders (writs) it can issue
- What the Directive Principles of State Policy are, and how they differ from Fundamental Rights
- Why the Right to Property is no longer a Fundamental Right
1 Why Rights Matter
A constitution does more than describe how government is organised. It also sets limits on what government can do, so that every person can enjoy certain rights. Part III of the Constitution of India lists these rights and calls them Fundamental Rights. Two real cases from the chapter show why simply writing rights down is not enough.
Before the 1982 Asian Games, the government hired contractors to build flyovers and stadiums. The contractors employed thousands of very poor construction workers and paid them less than the government’s own minimum wage. A team of social scientists studied their condition and petitioned the Supreme Court, arguing that paying less than the minimum wage amounted to begar (forced labour without payment), which violates the Fundamental Right against exploitation. The Court agreed and ordered the government to ensure the workers got their rightful wages.
Machal Lalung was arrested at age 23 in Chuburi village, Morigaon district, Assam, accused of causing grievous injury. He was found mentally unfit to stand trial and sent to a hospital in Tejpur. Doctors certified him fit to stand trial twice, in 1967 and 1996, but nobody acted on it. He remained in”judicial custody” for 54 years and was finally released in July 2005 at age 77, only after a National Human Rights Commission team inspected undertrials (people held in jail while their trial is still going on, and who have not yet been convicted of anything) in the state. His case never once came up for hearing.
The Constitution gives every citizen the right to a fair and speedy trial as part of the right to life. Machal Lalung’s case shows what happens when a right that exists on paper is not available in practice. The workers’ case shows the opposite: because their right could be challenged in court, it was actually enforced. That difference, between a right that only sounds good and a right that can be defended, is the whole reason this chapter matters.
2 The Bill of Rights
A Bill of Rights is a list of the rights of citizens that a constitution itself mentions and protects. It stops the government from acting against these rights, and it guarantees a remedy if they are violated.
Most democratic countries list the rights of their citizens inside the constitution itself, for a simple reason: a right that isn’t written down anywhere is a right the government can quietly ignore. The rights of a person can be threatened by another person or a private organisation, in which case the government must step in to protect them. But the organs of government, such as the legislature, the executive, the bureaucracy or even the judiciary, can also violate a person’s rights while carrying out their own work. A constitution’s Bill of Rights protects citizens from both directions.
Think of a Bill of Rights as a warranty card that comes with a TV or a fan: it lists exactly what you are entitled to, and it is the proof you use if that promise is broken.
South Africa’s Constitution was inaugurated in December 1996, at a time when the country still faced the threat of civil war after the end of apartheid (the system under which South Africa’s white minority government had legally separated and discriminated against non-white citizens). It calls its own Bill of Rights”a cornerstone of democracy in South Africa” and bans discrimination on a very long list of grounds, everything from race and gender to age, disability and language. It is enforced by a special constitutional court, and it grants perhaps the widest range of rights of any constitution in the world: not just the familiar rights but also things like the right to a healthy environment, adequate housing, and even to health care, food and water.
- List the rights common to both the Indian Constitution’s Fundamental Rights and South Africa’s Bill of Rights
- List rights available in South Africa but not explicitly in India
- List rights that South Africa states clearly but India only implies
3 What Makes a Right”Fundamental”
During the freedom struggle, India’s leaders demanded that the British respect the rights of the people. As far back as 1928, the Motilal Nehru Committee had already demanded a bill of rights. So when the Constitution was being written after Independence, there was no real disagreement about including rights, only about which ones to make special.
The Constitution lists certain rights and gives them extra protection, calling them Fundamental Rights. The word”fundamental” itself is the clue: these rights matter so much that the Constitution separately lists them and makes sure the government cannot violate them.
3.1 How Fundamental Rights differ from ordinary legal rights
Ordinary legal rights
- Protected and enforced by ordinary law
- Can be changed by the legislature through the normal law-making process
Fundamental Rights
- Protected and guaranteed by the Constitution itself
- Can only be changed by amending the Constitution
- No organ of government may act against them; the judiciary can strike down any action that does
Students often write that Fundamental Rights are”unlimited”. They are not. The government can place reasonable restrictions on how any Fundamental Right is exercised. What makes them special is not that they are absolute, but that they cannot be taken away except by amending the Constitution itself.
4 The Six Fundamental Rights
Part III of the Constitution groups Fundamental Rights under six heads. Each of the six is its own separate right, worth remembering on its own, not a sub-point of the one before it.
4.1 Right to Equality
Think about two situations, both imaginary but the kind of thing that really does happen. A shopkeeper serves a customer tea in a nice mug, but serves the customer’s friend tea in an earthen cup, because the friend is a Dalit. A TV channel takes four women newsreaders off screen for being over 45, but leaves two male newsreaders of the same age on air. Both are clear discrimination, one by caste, one by gender, and the Right to Equality exists precisely to stop this.
- Equality before law and equal protection of laws
- No discrimination on grounds of religion, race, caste, sex or place of birth, including equal access to shops, hotels, wells, tanks, bathing ghats and roads
- Equality of opportunity in public employment
- Abolition of untouchability, one of the crudest forms of inequality practised in Indian society
- Abolition of titles (special hereditary titles like those the British had given to loyal nobles), except honours the state itself gives for excellence in the military or academic field
Nothing in this article stops the State from reserving appointments or posts for any backward class of citizens that, in the State’s opinion, is not adequately represented in government service. In plain words: reservation looks like it treats people unequally, but the Constitution itself says it is required to achieve real equality of opportunity for groups who have historically been left out, so it is not a violation of the Right to Equality.
Hadibandhu, a member of the Dalit community in Puri district, Odisha, writes that the men of his community refused to keep following a custom that required them to wash the feet of upper-caste wedding guests. In revenge, four women from the community were beaten, and one was paraded naked. Does this involve a violation of Fundamental Rights? What should the government be ordered to do?
4.2 Right to Freedom
Equality and freedom are the two rights every democracy needs most, and neither makes sense without the other. Freedom does not mean doing whatever you like: it is defined so that everyone can enjoy it without threatening anyone else’s freedom or the law and order of the country.
- Freedom of speech and expression
- Freedom to assemble peacefully and without arms
- Freedom to form associations or unions
- Freedom to move freely throughout India, and to reside and settle in any part of it
- Freedom to practise any profession, or carry on any occupation, trade or business
- Protection from unfair punishment: a person cannot be punished under a law that did not exist when they acted, or punished twice for the same offence (explained fully as the”rights of the accused” below)
- Right to life and personal liberty
- Right to education
- Protection against arbitrary arrest and detention, so that the government cannot simply lock someone up without following a set procedure
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
The right to life and personal liberty is the foremost of these. No citizen can be denied life except through the procedure the law lays down, and nobody can be arrested without being told the grounds for it. If arrested, a person has the right to a lawyer of their choice, and the police must produce them before the nearest magistrate within 24 hours. The magistrate, who is not part of the police, decides whether the arrest was justified. Supreme Court judgments have widened this right well beyond a bare guarantee against being killed: it now also includes the right to live with human dignity, free from exploitation, and the right to shelter and livelihood, because no one can truly live without a means of living.
Preventive detention means arresting and holding a person, without a trial, simply because the government suspects they are likely to commit an unlawful act. It can last a maximum of three months, after which the case must go before an advisory board (a small panel that reviews whether the detention should continue) for review.
Preventive detention looks like a useful tool against genuine anti-social elements or people plotting against the state, but governments have often misused it against ordinary critics instead. So there is a real tension here worth remembering: the right to personal liberty on one side, and the government’s power of preventive detention on the other.
None of the other freedoms above are absolute either. Free speech can be restricted to protect public order, peace and morality. The freedom to assemble must be exercised peacefully, without arms, and the government can declare a gathering of five or more people in an area unlawful. Such powers can be misused: an administration might refuse permission for a genuine protest against its own policies. Even inside the Constituent Assembly, some members were unhappy about how many restrictions were placed on rights.
“I feel that many of these fundamental rights have been framed from the point of view of a police constable… Almost every article is followed by a proviso which takes away the right almost completely.”
Somnath Lahiri, Constituent Assembly Debates, Vol. III, p. 404, 29 April 1947 (a proviso is a condition attached to a rule that limits when it applies)
4.3 Rights of the accused
We tend to assume anyone charged with a crime is guilty, but the Constitution assumes the opposite until a court says otherwise, and it guarantees three specific protections for a fair trial:
- No person can be punished for the same offence more than once
- No law can declare something illegal after the fact: an act cannot be punished under a law that was passed only after the act was already done
- No person can be forced to give evidence against themselves
4.4 Right against Exploitation
Millions of underprivileged people in India have historically faced two related forms of exploitation: begar or forced labour without payment, and buying and selling human beings, effectively as slaves. Both are banned by the Constitution. Landlords and moneylenders once forced bonded labour on the poor, and some bonded labour still continues today, particularly in brick-kiln work, but it is now a punishable crime.
No forced labour
Prohibits begar and any form of forced or bonded labour, and the buying and selling of human beings.
No hazardous child labour
Children below 14 years cannot be employed in factories, mines or other dangerous work.
This right became more meaningful once child labour was made illegal and the right to education became a Fundamental Right for children.
4.5 Right to Freedom of Religion
Historically, many rulers forced their subjects to follow the ruler’s own religion or persecuted those who didn’t. A democracy, by contrast, treats freedom of religion as a basic principle. The Indian Constitution gives everyone the right to follow, and to choose not to follow, any religion.
Freedom of conscience
To profess (openly declare and practise), follow and propagate (spread and try to persuade others to join) any religion, or to choose none at all.
Freedom to manage religious affairs
Religious groups can run their own affairs, subject to public order, morality and health.
No forced religious tax
Nobody can be compelled to pay a tax meant to promote a particular religion.
Freedom in religious education
Freedom to attend, or not attend, religious instruction or worship in certain institutions.
This freedom is not unlimited: the government can restrict it in the interest of public order, morality and health, which is why practices like sati, bigamy (marrying a second time while already legally married to someone else) and human sacrifice have been banned by law without that counting as interference in religion. The right to propagate a religion includes persuading others to convert, but the Constitution does not allow forcible conversion. It only allows spreading information about one’s religion.
India has no official religion. Nobody needs to belong to a particular religion to become Prime Minister, President, a judge or hold any other public office. State-run institutions do not preach any religion, give religious education, or favour any religion’s followers. These provisions together are what sustain the principle of secularism in India.
4.6 Cultural and Educational Rights
Indian society is made up of enormous diversity, and the Constitution treats that diversity as a strength rather than a problem to be solved by making minorities adopt the majority’s culture. A group is a minority, whether religious or linguistic, if it shares a common language or religion and is numerically smaller than other groups in a particular region or in the country as a whole.
- Right to conserve and develop one’s own language, script and culture
- Right of religious or linguistic minorities to set up their own educational institutions
- Government will not discriminate in giving aid to an educational institution merely because it is run by a minority community
“A heavy responsibility would be cast on the majority to see that in fact the minorities feel secure… the only safety for the minorities lies in a secular State”
Sardar Hukam Singh, Constituent Assembly Debates, Vol. VIII, p. 322, 26 May 1949
5 Right to Constitutional Remedies
A list of rights is worth nothing unless there is a way to enforce it. Dr. B.R. Ambedkar called the Right to Constitutional Remedies the “heart and soul of the Constitution”, because it is the right that gives every other right its teeth: a citizen can go directly to a High Court or the Supreme Court to have any violated Fundamental Right restored. These courts can issue five special orders, called writs.
| Writ | What it does |
|---|---|
| Habeas Corpus | Orders that an arrested person be produced before the court; if the arrest is unlawful, the court can order that person’s release |
| Mandamus | Issued when a public office holder is failing to do their legal duty and this is harming someone’s rights |
| Prohibition | Issued by a higher court to stop a lower court from hearing a case that goes beyond its jurisdiction (the area or type of case it is legally allowed to decide) |
| Quo Warranto | Stops a person from acting in a public office they are not legally entitled to hold |
| Certiorari | Transfers a pending case from a lower court or authority up to a higher one |
H-M-P-Q-C
Habeas corpus Holds a person up before the court. Mandamus Makes an officer do their duty. Prohibition Prevents a lower court going too far. Quo warranto Questions someone’s right to a post. Certiorari Carries a case upward.
Beyond the judiciary, other bodies were created later to protect rights, including the National Commission on Minorities, the National Commission on Women, and the National Commission on Scheduled Castes.
Set up in 1993, after independent watchdogs like the People’s Union for Civil Liberties (PUCL) and People’s Union for Democratic Rights (PUDR) had already been raising alarms about rights violations. The NHRC is made up of a former Chief Justice of the Supreme Court, a former Supreme Court judge, a former Chief Justice of a High Court, and two other members with knowledge or experience in human rights.
It inquires into complaints of human rights violations, either on its own initiative or on a victim’s petition, visits jails to check on prisoners’ conditions, and promotes research on human rights. It receives thousands of complaints every year, mostly about custodial deaths, custodial rape, disappearances, police excesses and indignity to women, and it has been especially significant in investigating the disappearance of youth in Punjab and the Gujarat riot cases.
Students often assume the NHRC can punish the guilty. It cannot. The Commission has no power of prosecution; it can only recommend action to the government or recommend that courts start proceedings.
6 Directive Principles of State Policy
The Directive Principles of State Policy (DPSP) are a set of guidelines for the government written into the Constitution, but they are non-justiciable: no citizen can go to court to force the government to implement them.
The makers of the Constitution knew independent India would face huge challenges, above all bringing about equality and well-being for every citizen. They wanted to give government some policy direction on this, but without legally binding future governments to particular decisions. So they wrote the DPSP into the Constitution as moral guidance, trusting that public pressure and a sense of duty would push governments to take them seriously, even without a court able to enforce them.
The Directive Principles contain three kinds of things:
6.1 What the Directive Principles contain
Goals and objectives
What society as a whole should aim for.
Rights beyond the Fundamental Rights
Individual entitlements the Constitution wants citizens to have.
Policies government should adopt
Directions for lawmaking and governance.
| Goals | Non-justiciable rights | Policies |
|---|---|---|
| Welfare of the people | Adequate livelihood for all | Uniform civil code (one common set of personal laws for all citizens) |
| Social, economic and political justice | Equal pay for equal work, for men and women | Prohibition of alcoholic drinks |
| Raising the standard of living | Right against economic exploitation | Promotion of cottage industries |
| Equitable distribution of resources | Right to work | Prevention of slaughter of useful cattle |
| Promotion of international peace | Early childhood care and education for children below age six | Promotion of village panchayats |
Governments have tried, over the years, to actually give effect to Directive Principles. A few examples: zamindari-abolition laws (ending the old system of big landlords collecting revenue from farmers), bank nationalisation, factory laws and minimum wages, promotion of cottage and small industries, reservation for Scheduled Castes and Scheduled Tribes, the right to education, panchayati raj across the country, a partial right to work under an employment guarantee programme, and the mid-day meal scheme.
The 42nd Amendment, 1976 added a list of ten Fundamental Duties to the Constitution, things like abiding by the Constitution, defending the country, promoting harmony among citizens, and protecting the environment. But the Constitution says nothing about how to enforce these duties, and importantly, it does not make the enjoyment of rights conditional on fulfilling them. Adding duties did not change the status of Fundamental Rights in any way.
7 When Rights and Directive Principles Clash
Fundamental Rights and Directive Principles can be seen as complementary: Fundamental Rights restrain the government from doing certain things, while Directive Principles encourage the government to do certain things. Fundamental Rights mainly protect individuals; Directive Principles look after the well-being of society as a whole. Most of the time these two pull in the same direction, but sometimes implementing a Directive Principle can clash with a citizen’s Fundamental Right, and the clearest example in Indian history is the Right to Property.
The government’s position was that Parliament could amend any part of the Constitution to implement Directive Principles, even at the cost of a Fundamental Right; the underlying assumption was that rights could get in the way of public welfare. The courts took the opposite view: that Fundamental Rights were too important and too sacred to be limited even for the sake of Directive Principles.
The basic structure doctrine is the Supreme Court’s ruling that certain core features of the Constitution are so fundamental that Parliament cannot change them, no matter how it amends the Constitution.
This long-running conflict over how far Parliament could amend the Constitution was finally settled by the Supreme Court’s decision in the Kesavananda Bharati case, which held that some”basic features” of the Constitution cannot be altered by Parliament at all. This chapter covers it only by name; Chapter 9,”Constitution as a Living Document”, covers it in full.
- Compare South Africa’s Bill of Rights with India’s Directive Principles: which points appear in both lists?
- Why did South Africa’s Constitution put these points inside its Bill of Rights instead of treating them as separate guidelines?
- If you were writing a constitution for a new country, would you make such guidelines enforceable by courts or not? Give a reason.
8 Conclusion
The idea that rights include both freedom and equality goes back at least to the writings of Jotirao Phule (1827-1890), a radical social reformer from Maharashtra. The national movement sharpened and expanded that idea into constitutional rights, and independent India’s Constitution carried this long tradition forward by listing the Fundamental Rights. Since 1950, the judiciary has been an important protector of these rights, and judicial interpretation has kept expanding their scope. Rights place real limits on how government and administration function, and that is exactly what keeps India’s governance democratic.
- A Bill of Rights lists and protects citizens’ rights inside the constitution itself
- India has six Fundamental Rights: Equality, Freedom, Against Exploitation, Freedom of Religion, Cultural and Educational Rights, and Constitutional Remedies
- Article 21 protects life and personal liberty; arrest requires production before a magistrate within 24 hours
- Preventive detention can last up to 3 months before an advisory board reviews it
- The Right to Constitutional Remedies is enforced through 5 writs: Habeas Corpus, Mandamus, Prohibition, Quo Warranto, Certiorari
- The NHRC (1993) can investigate and recommend, but it cannot prosecute anyone
- Directive Principles guide government policy but cannot be enforced by courts
- The 42nd Amendment (1976) added 10 Fundamental Duties, without making rights conditional on them
- The Right to Property stopped being a Fundamental Right in 1978 (44th Amendment) and became a legal right under Article 300A
- The Kesavananda Bharati case established that Parliament cannot alter the Constitution’s”basic structure”
- Can I name all six Fundamental Rights without looking?
- Can I explain the difference between a Fundamental Right and an ordinary legal right?
- Can I name all five writs and say what each one does?
- Can I explain why Directive Principles cannot be enforced by a court, but Fundamental Rights can?
- Can I trace the Right to Property from Fundamental Right to Article 300A, with the two key years?