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Fundamental Rights

The Fundamental Rights are defined as basic human freedoms that every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste or gender.There are six fundamental rights in India. They are Right to Equality, Right to Freedom, Right against Exploitation, Right to Freedom of Religion, Cultural and Educational Rights, and Right to Constitutional Remedies.

Article 12 to 35 contained in Part III of the Constitution deal with Fundamental Rights. These are:

Justifiability of fundamental rights

The Fundamental Rights are considered as one of the integral part of Indian Constitution.Although many rights are considered as human rights a specific legal test is used by courts to determine the limitations which can be imposed on them. These rights find their origin in many places such as England Bill of Rights, United States Bill of Rights and France Declaration of Bill of Rights of Man. The framing of Indian Constitution can be best known by browsing transcripts of Constituent Assembly debate. The Constituent Assembly was composed of members elected from various British Indian Provinces and nominated by the princely states.

The framers of Indian Constitution had three things in mind – ensuring unity, democracy and creating social revolution. The Constitution of India took nearly three years in its formation and finally came into force on 26th January 1950.

The biggest challenge before the Constituent Assembly was to evolve a document that would address the diversity amongst the population, create accountable governance and an independent republic. The development of fundamental human rights in India was due to exposure of students to the ideas of democracy, working of parliamentary democracy and British political parties and was also inspired by the:-

  • England Bill of Rights
  • US Bill of Rights
  • France Declaration of the Rights of Man and
  • Development of Irish Constitution.

The Nehru Committee observed that the first care should be to have Fundamental Rights guaranteed in such a manner which will not permit its withdrawal under any circumstances. The Indian Statutory Commission refused to enumerate and guarantee the demand of Fundamental Rights in the Constitution Act. Their refusal was based on Simons Commission argument that abstract definition of such rights is useless unless there existed the will and means to make them effective. The Indian National Congress at its Karachi session in 1931 again demanded for a written guarantee for Fundamental Rights in any future Constitutional setup in India. This demand was also emphasized at the round table conference at London. A memorandum circulated by the Mahatma Gandhi at the second session of round table conference demanded that the new constitution should include a guarantee to the communities concerned to the protection of their cultures, language, scripts, profession, education and practice of religion and religious endowments and protect personal laws and protection of other rights of minority communities. The Joint Select Committee of the British Parliament did not accept the demand for the constitutional guarantee of Fundamental Rights to British subjects in India. The Committee observed that:-

….there are also strong practical arguments against the proposal which may be put in the form of a dilemma: for either the declaration of rights is of so abstract a nature that it has no legal effect of any kind or its legal effect will be to impose an embarrassing restrictions on the powers of the legislatures and to create a grave risk that a large number of laws will be declared invalid or inconsistent with one or other of the rights so declared….There is this further objection that the state has made it abundantly clear that no declaration of fundamental rights is to apply to state territories and it would be anomalous if such a declaration had legal force in part only of the area of the federation.

The committee conceded that there were some legal principles which could approximately be incorporated in the new constitution. Accordingly sections 295, 297-300 of Government of India Act 1935 conferred certain rights and forms of protection on British subjects in India.

By the Objective Resolution adopted on January 22, 1947 the constituent assembly solemnly pledged itself to draw up for future governance a constitution wherein “shall be guaranteed and secure to all the people of India justice, social, economical and political, equality of status, of opportunity and before the law : freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality” and wherein adequate safeguards would be provided for minorities, backward and tribal areas and depressed and other classes. Two days after the adoption of the resolution the assembly elected Advisory Committee for reporting on minorities fundamental rights and on the tribal and excluded areas. The advisory committee in turn constituted on Feb 27, 1947 five sub-committees which would deal with fundamental rights.

The sub committee on Fundamental Rights at its first meeting on February 27, 1942 had before it proposal of B.N.Rau to divide Fundamental Rights into two classes i.e. justifiable and non justifiable.

An important question that faced the sub committee was that of distributing such rights between the Provincial, the Group and the Union Constitution. In the early stages of its deliberation the subcommittee proceeded on the assumption of this distribution and adopted certain rights as having reference only to union and certain rights as having reference both to the union and to the constitutional units. However later it was felt that if Fundamental Rights differed from group to group and from unit to unit or were for that reason not uniformly enforceable, it was felt the Fundamental Rights of citizens of the union had no value. This reorganization leads to the realization that certain Fundamental Rights must be guaranteed to every resident. The sub committee recommended that all the rights incorporated must be binding upon all the authorities whether of the union or of the units. This was thought to be achieved by providing definition in the first clause. The expression the state included the legislature, the government of the union and the units of all local or other authorities within the territories of the union that the law of union included any law made by the union legislature and any existing Indian law as in force within the union or any part thereof.

The subcommittee fully discussed various drafts submitted by its members and others before formulating the list of Fundamental Rights. Dr. Ambedkar pointed out that the rights incorporated in the draft were borrowed from constitution of various countries where the conditions are more or less analogous to those existing in India.

The draft submitted on April 3, 1947 was circulated to its members with the explanatory notes on various clauses. The clauses contained in the draft report were thereafter discussed in the subcommittee in the light of the comments offered by the members and the final report was submitted to the chairman of the advisory committee on April 16, 1947. Three days later the subcommittee on the minority examined the draft clauses prepared by the fundamental rights subcommittee and reported on the subject of such rights from the point of view of the minorities. The advisory committee deliberated on the recommendations made by the two subcommittee and accepted the recommendations for

  1. Classification of rights into justifiable or non justifiable.
  2. Certain rights being guaranteed to all persons and certain other only to citizens
  3. All such rights being made uniformly applicable to the union and the units.

The committee also accepted the drafts of clauses 1 and 2 – the former providing the definition of the state, the unit and the law of the union and latter for the laws or usages inconsistent with the fundamental rights being void in the form recommended by the sub committee also the word constitution was replaced by the word this part of the constitution. The advisory committee incorporated these recommendations in its interim report to the constituent assembly submitted on April 23, 1947. The interim report dealt only with justifiable rights i.e fundamental rights. Later on August 25, 1947 the advisory committee submitted a supplementary report mainly dealing with non-justifiable rights i.e. the Directive Principles of State Policy or the Fundamental Principles of Governance. A notable development took place on 10 December 1948 when the United Nations General Assembly adopted the Universal Declaration of Human Rights and called upon all member states to adopt these rights in their respective constitutions.

The various stages through which the various clauses on fundamental rights passed were similar to other parts of the constitution. Firstly- the constitutional adviser prepared a draft embodying a decision of the constituent assembly. This draft was considered exhaustively and in detail by the drafting committee, which prepared a revised draft and published it in February 1948. The revised draft was then widely circulated. The comments and suggestions received from all quarters were again considered by the drafting committee and in light of these the committee proposed certain amendments. Discussions in constituent assembly of the draft provisions took place in November and December 1948 and August, September and October 1949. During these meetings the committee considered the various suggestions for amendment made on behalf of Drafting Committee as well as those proposed by the individual members of the assembly. The provisions as passed by the assembly were again scrutinized by the Drafting Committee and incorporated by the drafting changes wherever necessary in the revised draft constitution. The revised draft was again placed before the assembly at its final session held in November 1949.

The fundamental rights were included in the First Draft Constitution (February 1948), the Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26 November 1949) prepared by the Drafting Committee.