A well said quote by Shri Nani Pankhivala

“The survival of our democracy and the unity and integrity of the nation depend upon the realisation that constitutional morality is no less essential than constitutional legality. Dharma lives in the hearts of public men; when it dies there, no Constitution, no law, no amendment, can save it”

Here are a few differences which will make it easier for us to understand the Fundamental Rights and Constitutional Rights.

  •  The fundamental rights are basic and inalienable rights which are granted to each citizen of India through Part III of the constitution, and in some rare/exceptional cases to non-citizens too.
  • These rights are enshrined in Part III of the Constitution of India.
  • There are 6 Fundamental Rights namely:-

a) Right to Equality

b) Right to Freedom

c) Right against Exploitation

d) Right to Freedom of Religion

e) Cultural and Educational Rights

f) Right to Constitutional Remedies

  •  These fundamental rights are applicable to every citizen of India irrespective of their caste, creed, gender, religion, sex or place of birth.
  • These rights, if infringed are enforceable and justiciable in the High Courts under Article 226 of the Constitution of India and in the Supreme Court under Article 32 of the Constitution of India. Article 32 is also a fundamental right.
  • The enforcement of these rights can be done via writs namely – Habeas corpus, Mandamus, Quo Warranto, Certiorari, and Prohibition. These rights have reasonable restrictions and are not absolute by nature. They are enforceable only against India and not against the private individuals, except for Article 17 which by itself abolishes untouchability. Article 17 is enforceable against the private individuals too.
  • These laws are so ‘FUNDAMENTAL’ and so powerful that even the Parliament of India can’t take these Rights away from us.
  •  All rights that have been conferred to the citizens and enshrined in the Constitution of India but are not under the domain of Part III of the Constitution are said to be Constitutional Rights.
  • A constitutional right is a supreme right guaranteed by our Constitution. In case of any contradiction with Constitutional Rights, that law will be declared null and void.
  • These rights aren’t applicable to everyone unlike Fundamental Right.

A paramount example of such Right is the Right to Vote guaranteed by Article 326.However, this Right is applicable only after achieving majority, i.e 18 years.

  • Constitutional rights can be created and can be interpreted by law from case to case basis. These rights can be duty, it can also be a restraint of some power which is well recognized and established by a Sovereign State or a Union of States like India.

A prominent example is Right to property which is covered under Article 300A of the Constitution of India and can be taken away from the citizens by the “authority of law”. This simply means that when the legislators sign an act which takes away the right to property of a citizen, the act will be held legally valid. This was not possible earlier because Right to Property was a Fundamental Right earlier.



An Impactful Evaluation 

If any of the Rights are violated by the State or any limitations are imposed, these give rise to corresponding right to challenge them in the court of law. Moreover, Article 265 says “no tax shall be levied or collected except with the authority of law.” This guarantees that an individual will not be arbitrary taxed by any Executive and in case of any taxation without proper legislature in that regard, the aggrieved individual may seek remedy from court of law. Also, Tax collected illegally will have to be refunded as its retention is also an offence under Article 265.

Similarly, Article 301 says that “subject to the provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free.” In case there are any restrictions imposed by the Legislature or Executive which is not justified by other provisions of Part XIII of the Constitution, the aggrieved individual may challenge the action in the court of law.

Actual difference

Though both the rights are equally justiciable, the constitutional remedy by way of an application on to the Supreme Court under Article 32, which is itself included partially III, as a fundamental right, is out there only within the case of fundamental rights. In case, the right follows from another provisions of the Constitution, like Article 265 or Article 301, the aggrieved person may have his relief by a standard suit or, by an application under Article 226 to the state Supreme Court, however, an application under Article 32 can’t be made unless there’s violation of any fundamental right.

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I am a CA student and fond of writing articles on Income Tax Matters.I can be reached at [email protected], Mob No 9999808908. View Full Profile

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June 2021