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Concept and Classification of Fundamental Rights

Nature and Importance of Fundamental Rights

Fundamental Rights are the basic human rights enshrined in Part III (Articles 12 to 35) of the Constitution of India. They guarantee civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These rights are considered fundamental because they are essential for the moral, intellectual, and spiritual development of the individual.

Magna Carta of India: Historical context and evolution.

Part III of the Indian Constitution containing Fundamental Rights is aptly described as the 'Magna Carta' of India. The Magna Carta, signed in 1215 in England, was the first written document to limit the powers of the King and guarantee basic rights to the barons. Similarly, the Fundamental Rights in India act as limitations on the powers of the State and guarantee fundamental liberties to the citizens.

The demand for constitutional rights goes back to the Indian national movement. Leaders wanted a set of rights that could not be violated by the colonial government. The Nehru Report of 1928 included a bill of rights. Eventually, the framers of the Constitution, inspired by the Bill of Rights in the USA, incorporated a comprehensive list of Fundamental Rights in Part III.

Limitations on State Power: Negative obligations on the State to refrain from infringing fundamental rights.

Fundamental Rights are primarily designed to restrict the arbitrary actions of the 'State' (as defined in Article 12). They impose negative obligations on the State, meaning they prohibit the State from doing certain things that would infringe upon these rights. For example, Article 14 prohibits the State from denying equality, and Article 15 prohibits discrimination by the State.

However, some Fundamental Rights are positive in nature, requiring the State to take certain actions (e.g., Article 21A mandates the State to provide education).

Judicial Enforcement: Role of Supreme Court (Art. 32) and High Courts (Art. 226) in protecting fundamental rights.

One of the most significant features of Fundamental Rights is that they are justiciable. This means that if any of these rights are violated by the State or any entity falling under the definition of 'State', the aggrieved person can directly approach the Supreme Court or the High Courts for their enforcement.

The Supreme Court is designated as the 'guarantor' and 'defender' of the Fundamental Rights.

Horizontal Effect of Fundamental Rights: Application against private individuals and entities in certain contexts.

While Fundamental Rights are primarily enforceable against the State, some rights are also enforceable against private individuals or entities. This is known as the horizontal effect of Fundamental Rights.

Examples:

However, most Fundamental Rights, particularly those under Article 19 (Freedoms), are primarily limitations on State action.

Invocation of Fundamental Rights: Locus standi, 'victim' requirement, PIL as an exception.

Generally, to invoke the writ jurisdiction of the Supreme Court (Article 32) or a High Court (Article 226) for the violation of a Fundamental Right, the petitioner must have locus standi, meaning they must be the person whose right has been infringed (the 'victim' requirement).

However, the Indian judiciary has developed the concept of Public Interest Litigation (PIL) as an exception to this rule. Under PIL, any public-spirited citizen or organisation can move the court on behalf of a person or group of persons whose Fundamental Rights are violated but who are unable to approach the court themselves due to poverty, disability, or other reasons.

PIL allows courts to take cognisance of matters affecting the public interest and ensures wider access to justice, particularly for the marginalised sections of society. It has been instrumental in enforcing rights like the right to a clean environment, right to food, right to speedy trial, etc., which have been interpreted as part of the broader Right to Life and Personal Liberty (Article 21).


Classification of Fundamental Rights

The Constitution groups the Fundamental Rights into six categories. These reflect different dimensions of liberty, equality, and protection deemed essential for a democratic society.

Right to Equality (Articles 14-18): Principle of equality, non-discrimination, equal opportunity.

This category enshrines the principle of equality, which is a cornerstone of democracy.

Right to Freedom (Articles 19-22): Freedoms of speech and expression, assembly, association, movement, residence, profession, right to life and personal liberty, protection against arbitrary arrest and detention.

This is a crucial set of rights guaranteeing various aspects of individual liberty.

Right against Exploitation (Articles 23-24): Prohibition of traffic in human beings, forced labour, and child labour in hazardous occupations.

These articles aim to prevent the exploitation of vulnerable sections of society.

Right to Freedom of Religion (Articles 25-28): Freedom of conscience, practice, profession, and propagation of religion, management of religious affairs, freedom from religious taxation, freedom in educational institutions.

These articles establish the secular character of the Indian state.

Cultural and Educational Rights (Articles 29-30): Protection of minorities' interests (language, script, culture), right of minorities to establish and administer educational institutions.

These rights are specifically designed to protect the rights of minority groups.

Right to Constitutional Remedies (Article 32): Enforcement of Fundamental Rights through writs.

This is considered the most important Fundamental Right as it makes other rights effective. It provides the mechanism for the enforcement of Fundamental Rights.

Dr. B. R. Ambedkar called Article 32 the "heart and soul of the Constitution".


Historical perspective on Fundamental Rights: Drafting, debates, and influence of international covenants.

The inclusion of Fundamental Rights in the Indian Constitution was not an overnight decision but a culmination of a long struggle and debate during the freedom movement and within the Constituent Assembly.

Historical Demand:

The demand for a bill of rights limiting state power emerged as early as the late 19th century. The Indian National Congress consistently demanded constitutional guarantees for rights. The Nehru Report (1928) explicitly contained a list of fundamental rights.

Drafting in the Constituent Assembly:

The Constituent Assembly set up an Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas with Sardar Vallabhbhai Patel as its Chairman. This committee had sub-committees, including a Sub-Committee on Fundamental Rights chaired by J. B. Kripalani. These committees prepared initial drafts.

There were extensive debates in the Assembly regarding the nature, scope, and enforceability of these rights. Questions were raised about justiciable vs. non-justiciable rights (leading to the separation into Fundamental Rights and Directive Principles) and the need for reasonable restrictions on certain freedoms.

Influences:

The framers aimed to create a balance between protecting individual liberties and ensuring social order and progress, leading to the inclusion of restrictions and the distinction between fundamental rights and directive principles.


Impact of Fundamental Rights on Directive Principles and Fundamental Duties: Interrelationship and harmonization.

Fundamental Rights (Part III), Directive Principles of State Policy (Part IV), and Fundamental Duties (Part IVA) together form a vital triad in the Indian Constitution. While distinct, they are interrelated and influence each other.

Relationship between Fundamental Rights and Directive Principles:

Relationship between Fundamental Rights and Fundamental Duties:

The judiciary plays a crucial role in harmonising the relationship between these three parts, ensuring that the pursuit of social and economic justice (DPSPs) does not unduly infringe upon basic liberties (FRs), and citizens are aware of their responsibilities (FDs).


Suspension of Fundamental Rights during Emergency: Articles 358 and 359, scope and limitations of suspension.

While Fundamental Rights are guaranteed, the Constitution provides for their suspension during a National Emergency (declared under Article 352). This is done to maintain the unity, integrity, and security of the country in extraordinary circumstances.

Suspension of Fundamental Rights:

Scope and Limitations of Suspension:

The suspension of Fundamental Rights during emergencies represents a potential for infringing upon individual liberties, a concern highlighted during the 1975 Emergency. The 44th Amendment was a direct response to these concerns, significantly limiting the scope of suspension.


Non-justiciable Fundamental Rights: Rights that are enforceable only through interpretation or by implication.

While Fundamental Rights are generally justiciable, the phrase "Non-justiciable Fundamental Rights" can be interpreted in a few ways within the Indian constitutional context:

Rights with Limitations:

Many Fundamental Rights are not absolute and are subject to 'reasonable restrictions'. The justiciability often lies in challenging the reasonableness of the restriction imposed by the State, rather than claiming an absolute right. If the court finds the restriction unreasonable or exceeding the scope permitted by the Constitution, the State's action/law is struck down.

Rights Derived from Interpretation:

The Supreme Court, through its expansive interpretation, particularly of Article 21 (Right to Life and Personal Liberty), has read many unarticulated rights into the Fundamental Rights chapter. Examples include the right to privacy, right to shelter, right to health, etc. While these are now considered Fundamental Rights, they are not explicitly listed as separate articles and their enforcement often depends on the specific context and judicial pronouncements. In this sense, their "justiciability" might sometimes be less straightforward or require interpretation compared to explicitly listed rights like the right against discrimination (Article 15).

Rights vs. Directive Principles:

It's crucial to distinguish between Fundamental Rights (justiciable) and Directive Principles of State Policy (non-justiciable). The term "non-justiciable Fundamental Rights" is technically a misnomer for rights listed in Part III, as their enforceability by courts is their defining characteristic. The non-justiciable principles are the DPSPs in Part IV.

Perhaps the phrase refers to rights which are guaranteed but whose full realisation depends heavily on State action guided by Directive Principles or laws, making their effective enforcement by courts challenging without corresponding legislation.

However, the core constitutional position is that any right explicitly or implicitly recognised as a Fundamental Right under Part III is justiciable, and a remedy under Article 32 or 226 is available for its violation by the State.

Articles 12 and 13: Scope and Interpretation

Article 12: Definition of 'State'

Article 12 of the Constitution defines the term 'State' for the purpose of Part III (Fundamental Rights). This definition is crucial because Fundamental Rights are primarily guarantees against the actions of the 'State'.

Constitutional framework: Government and Parliament of India, Government and Legislature of States.

Article 12 explicitly includes the following within the definition of 'State':

This means that actions by the Union Executive (President, Council of Ministers) and Union Legislature (Lok Sabha, Rajya Sabha), as well as actions by State Executive (Governor, Council of Ministers) and State Legislature, are subject to the limitations imposed by Fundamental Rights.

Definition of 'State' for the purpose of Fundamental Rights: Includes Executive and Legislature of Union and States, Parliament and State Legislatures, local authorities and other authorities.

Article 12 further includes:

Thus, the definition is comprehensive and covers various entities that exercise governmental or public power.

Meaning of 'Local Authorities': Municipalities, Panchayats, District Boards, etc.

'Local authorities' include bodies such as:

Actions by these local self-governing bodies can therefore be challenged if they violate Fundamental Rights.

Meaning of 'Other Authorities': Interpretation by Supreme Court, bodies owned, controlled or financed by the government, statutory corporations, even non-statutory bodies if performing public functions.

The term 'Other authorities' is not defined in the Constitution, and its scope has been subject to extensive judicial interpretation by the Supreme Court. The courts have adopted a broad and evolving interpretation to include various entities within the ambit of 'State' to ensure that Fundamental Rights are protected against actions of bodies functioning as instruments of the State.

Judicial Tests for 'Other Authorities':

Over time, the Supreme Court has laid down various tests and criteria to determine whether a body falls under 'Other authorities'. Some key indicators include:

Landmark cases: University of Madras v. Sundara Ramiyya, Ujjain Municipality v. State Bank of India, Sukhdev Singh v. Bhagatram, R.D. Shetty v. Airport Authority of India, Pradeep Kumar Biswas v. Indian Institute of Chemical Biology.

Judicial interpretation of 'Other authorities' has evolved through several landmark judgments:

The definition of 'State' has thus expanded significantly through judicial interpretation, bringing a wide range of public sector undertakings, statutory bodies, universities, and even some private bodies performing public functions under the discipline of Fundamental Rights.


Article 13: Laws Inconsistent with or in Derogation of the Fundamental Rights

Article 13 is a cornerstone of Fundamental Rights as it provides for the judicial review of laws. It makes all laws that are inconsistent with or in derogation of any of the Fundamental Rights void.

Laws inconsistent with Fundamental Rights declared void: Scope of Article 13(1) and 13(2).

Article 13 consists of several clauses:

The effect of Article 13 is that if the State makes a law that violates a Fundamental Right, the law (or the offending part of it) is rendered invalid and unenforceable.

Definition of 'Law': Pre-constitutional laws (Art. 13(1)), Post-constitutional laws (Art. 13(2)).

Article 13 covers both laws that existed before the Constitution came into force (pre-constitutional) and laws made after its commencement (post-constitutional).

Meaning of 'Law': Includes ordinances, orders, bye-laws, rules, regulations, notification, customs or usages having in the territory of India the force of law.

Article 13(3)(a) provides an inclusive definition of the term 'Law' for the purpose of this article. It states that "Law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law".

This expansive definition ensures that actions by the executive or other bodies that have the force of law are also subject to the test of consistency with Fundamental Rights. It's not just legislative enactments by Parliament or State Legislatures that can be challenged, but also delegated legislation and even long-standing customs that have the force of law.

Doctrine of Judicial Review: Power of the judiciary to declare laws void if they contravene Fundamental Rights.

Article 13 is the very basis of the Doctrine of Judicial Review in India. It explicitly confers the power and obligation on the judiciary (Supreme Court under Article 32 and High Courts under Article 226) to review laws and executive actions to determine their validity vis-à-vis Fundamental Rights. If a law or action is found to violate a Fundamental Right, the courts can declare it unconstitutional and void.

This power makes the judiciary the guardian of Fundamental Rights and the Constitution.

Doctrine of Eclipse: Pre-existing laws inconsistent with FRs become void and unenforceable, but not dead.

The Doctrine of Eclipse is primarily associated with Article 13(1) and pre-constitutional laws. It states that a pre-constitutional law inconsistent with a Fundamental Right is not totally wiped out or repealed. It becomes unenforceable or remains dormant (eclipsed) as long as the Fundamental Right is operational.

However, if the Fundamental Right is amended in the future such that the old law is no longer inconsistent, or if the protection of the Fundamental Right is waived (though Fundamental Rights cannot generally be waived), the old law can become operative again. It's like the law is covered by an 'eclipse' which lifts when the covering object (the Fundamental Right) is removed or altered.

This doctrine applies mainly to pre-constitutional laws and typically not to post-constitutional laws which are born void if they violate Fundamental Rights.

Landmark Case:

Bhikaji Narain Dhakras v. State of Madhya Pradesh (1955): The Supreme Court applied the Doctrine of Eclipse to a pre-constitutional law (Central Provinces and Berar Motor Vehicles (Amendment) Act, 1947) which became inconsistent with the Fundamental Right to practice any profession or carry on any business (Article 19(1)(g)) upon the commencement of the Constitution. The Court held that the law became inoperative but not dead and could be revived if Article 19 was amended, which happened later with the First Amendment.

Doctrine of Severability: If a part of a law is unconstitutional, the rest can be upheld if it can stand independently.

The Doctrine of Severability (also known as the Doctrine of Separability) is related to both Article 13(1) and 13(2). It states that if a provision of a law is found to be unconstitutional, only that particular provision will be declared void, provided the remaining part of the law can function independently. If the unconstitutional part is so essential to the entire law that without it, the remaining law is meaningless or cannot be given effect to, then the entire law will be struck down.

The purpose of this doctrine is to save the valid parts of a law while invalidating only the offending portions that violate Fundamental Rights, thus preventing legislative overreach without destroying beneficial legislation entirely.

Landmark Case:

A.K. Gopalan v. State of Madras (1950): Although the main challenge to the Preventive Detention Act failed on different grounds, the Court did apply the doctrine of severability to strike down a specific section (Section 14) of the Act as unconstitutional while upholding the rest of the Act. Section 14 prohibited the disclosure of grounds of detention communicated to the detenu in court, which was held to violate Article 22(5).


Art. 13(3)(a): Definition of 'Law' and Art. 13(3)(b): Definition of 'Law being made'.

As mentioned earlier, Article 13(3) provides definitions for the terms used in Article 13.

Art. 13(3)(a): Definition of 'Law'

Article 13(3)(a) defines 'Law' as discussed above: "Law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law." This inclusive definition ensures that various forms of state action that have legal effect are covered under Article 13 and are subject to judicial review based on Fundamental Rights.

Art. 13(3)(b): Definition of 'Laws in force'

Article 13(3)(b) defines 'laws in force' as used in Article 13(1): "'laws in force' includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas." This clarifies that 'laws in force' include all pre-constitutional laws that were legally operative at the time, even if they were not currently being applied in specific areas.

Together, Articles 13(3)(a) and 13(3)(b) provide the necessary definitions for the effective application of the principles laid down in Article 13(1) and 13(2).


Relationship between Article 13 and Article 368: Amendment power of Parliament vs. power to declare laws void.

The relationship between Article 13 (which declares laws violating Fundamental Rights as void) and Article 368 (which provides Parliament with the power to amend the Constitution) has been a subject of intense judicial debate and several landmark judgments.

The Conflict:

The core question was whether a law made by Parliament in exercise of its constituent power to amend the Constitution under Article 368 would be considered 'law' under Article 13, and thus subject to being declared void if it violated Fundamental Rights.

Judicial Evolution:

To nullify the Golaknath verdict, Parliament passed the 24th Constitutional Amendment Act, 1971. This Act amended Article 13 by adding Article 13(4) stating that "Nothing in this article shall apply to any amendment of this Constitution made under article 368". It also amended Article 368 to explicitly state that Parliament has the power to amend any provision of the Constitution and that such an amendment shall not be questionable in any court.

This judgment struck a balance: Parliament can amend Fundamental Rights, but not to the extent of destroying the basic structure which includes the essence of these rights. Article 13 applies to ordinary laws, and Article 368 deals with constitutional amendments, but amendments are subject to judicial review based on the basic structure doctrine.

In conclusion, Article 13 applies to ordinary laws and provides for their judicial review based on inconsistency with Fundamental Rights. Article 368 deals with constitutional amendments, which are not ordinary laws in the context of Article 13. However, constitutional amendments are subject to judicial review under the 'basic structure' doctrine, which prevents Parliament from amending the Constitution in a way that destroys its fundamental framework, including the essential nature of Fundamental Rights.

Right to Equality (Articles 14-18)

Article 14: Equality Before Law and Equal Protection of Laws

Article 14 is the foundation of the Right to Equality. It applies to all persons (citizens and non-citizens) and prohibits discrimination by the State.

Meaning and Scope

Article 14 uses two phrases:

The Supreme Court has held that the two phrases together establish the rule of law in India. While 'Equality Before Law' is a negative concept (absence of privilege), 'Equal Protection of Laws' is a positive concept (positive action by the state to ensure equality in similar circumstances).

Reasonable Classification and the Doctrine of Equality

Article 14 does not mean that all laws must be general in character or that the same laws should apply to all persons, regardless of their differing circumstances. It is not an absolute equality of all persons in all circumstances.

The principle of 'Equal Protection of Laws' allows the State to make reasonable classification of persons or things for legislative purposes. However, this classification must satisfy certain conditions:

  1. The classification must be founded on an intelligible differential. There must be a real difference between the group of persons or things classified together and those left out.

  2. The differentia must have a rational relation to the object sought to be achieved by the law. The purpose of the law must be logically connected to the basis of classification.

The Supreme Court has also introduced the new doctrine of equality under Article 14, which strikes against arbitrariness. In the E.P. Royappa v. State of Tamil Nadu (1974) case, the Court held that Article 14 strikes at arbitrariness in State action and ensures fairness and equality in treatment. Equality is opposed to arbitrariness. This has expanded the scope of Article 14 beyond mere classification to include a general prohibition on arbitrary state action.


Article 15: Prohibition of Discrimination

Article 15 deals with the prohibition of discrimination by the State on certain grounds. It applies only to citizens.

Grounds for Discrimination

Article 15(1) states that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, or place of birth or any of them.

The word 'only' is important; it means discrimination on other grounds is not prohibited. Discrimination on a combination of these grounds and other grounds might be permissible if it is not based solely on these prohibited factors and is justified by other constitutional principles (like reasonable classification under Article 14 or affirmative action under subsequent clauses of Article 15).

Article 15(2) prohibits discrimination on these grounds regarding access to shops, public restaurants, hotels, places of public entertainment, or the use of wells, tanks, bathing ghats, roads, and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. This prohibition applies to both the State and private individuals.

Special Provisions for Women, Children, and Socially and Educationally Backward Classes

Article 15 includes several clauses that provide for exceptions to the rule of non-discrimination, allowing for affirmative action or protective discrimination:

These clauses balance the principle of non-discrimination with the need for social justice and equality by allowing the State to take positive steps to uplift disadvantaged groups.


Article 16: Equality of Opportunity in Public Employment

Article 16 guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

Scope:

Article 16(1) ensures equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

Article 16(2) prohibits discrimination in respect of any employment or office under the State on grounds only of religion, race, caste, sex, descent, place of birth, residence, or any of them.

Exceptions to the Rule

Similar to Article 15, Article 16 also provides for exceptions to allow for positive discrimination to address historical inequalities and underrepresentation.

Reservations and Affirmative Action

Articles 16(4), 16(4A), 16(4B), and 16(6) embody the principle of affirmative action (or protective discrimination) to address historical injustices and ensure representation of disadvantaged groups (Backward Classes, SCs, STs, EWS) in public employment. The legality and extent of these reservations have been a subject of numerous legal challenges and judicial pronouncements, notably the Mandal Commission case (Indra Sawhney v. Union of India, 1992), which, among other things, upheld the 27% reservation for OBCs but laid down the 50% ceiling limit on total reservations (with exceptions for backlog vacancies) and the exclusion of the 'creamy layer' from OBC reservations.


Article 17: Abolition of Untouchability

Article 17 is a crucial provision aimed at eradicating social discrimination and promoting social equality. It states: "'Untouchability' is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of 'Untouchability' shall be an offence punishable in accordance with law."

Meaning of 'Untouchability':

The term 'Untouchability' is not defined in the Constitution. However, the Supreme Court has held that the term is not to be understood in its literal or grammatical sense but in the sense of the practice as it has developed historically in the country. It refers to the social disabilities imposed on certain classes of persons by reason of their birth in certain castes.

Article 17 applies against both the State and private individuals. Its violation by any person constitutes a crime.

Untouchability (Offences) Act, 1955 (now Protection of Civil Rights Act, 1955)

Article 35 of the Constitution empowers Parliament to make laws prescribing punishment for those acts that are declared to be offences under Part III. Pursuant to this power, Parliament enacted the Untouchability (Offences) Act, 1955. This Act prescribed punishments for the practice of untouchability.

In 1976, the Act was amended and renamed as the Protection of Civil Rights Act, 1955. The Act makes certain acts punishable offenses, such as:

The Act also provides for enhanced penalties for subsequent offences. The objective of Article 17 and the Protection of Civil Rights Act is to abolish the social stigma of untouchability in all its forms and to provide a legal framework for punishing those who perpetuate this practice.


Article 18: Abolition of Titles

Article 18 aims to prevent the creation of artificial inequalities among the citizens by prohibiting the State from conferring titles and restricting citizens from accepting foreign titles.

Provisions of Article 18:

Exception: Military and Academic Titles

The prohibition in Article 18(1) does not apply to military and academic distinctions. Titles like 'General', 'Colonel', 'Doctor', 'Professor', etc., can be conferred.

The controversy surrounding the national awards like Bharat Ratna, Padma Vibhushan, Padma Bhushan, and Padma Shri led to a Supreme Court judgment in Balaji Raghavan v. Union of India (1996). The Court held that these awards do not fall within the meaning of 'titles' prohibited by Article 18. They are merely recognitions of work and not titles. However, the Court advised that these awards should not be used as suffixes or prefixes to the names of the awardees, as that would violate the spirit of Article 18.

Right to Freedom (Articles 19-22)

Article 19: Protection of Certain Rights regarding Freedom of Speech, etc.

Article 19 is a pivotal article under the Right to Freedom, guaranteeing several fundamental freedoms essential for a democratic society. These freedoms are available only to citizens.

Six Freedoms (Speech and Expression, Assembly, Association, Movement, Residence, Profession)

Article 19(1) guarantees the following six freedoms:

  1. Freedom of speech and expression: The right to express one's views, opinions, beliefs, and convictions freely, by word of mouth, writing, printing, picturing, or in any other manner. This includes freedom of the press, freedom of commercial advertisements, right against tapping of telephonic conversation, right to telecast, right to know, right to silence, etc., as interpreted by the judiciary.

  2. Freedom to assemble peacefully and without arms: The right to gather peacefully without weapons. This includes the right to hold public meetings and demonstrations.

  3. Freedom to form associations or unions or co-operative societies: The right to form associations, clubs, societies, trade unions, or any other body. This includes the right to form political parties.

  4. Freedom to move freely throughout the territory of India: The right to move from one place to another within the boundaries of India.

  5. Freedom to reside and settle in any part of the territory of India: The right to reside permanently or temporarily in any part of India. This freedom is related to the abolition of internal barriers within the country.

  6. Freedom to practice any profession or to carry on any occupation, trade, or business: The right to choose and pursue any lawful profession, occupation, trade, or business.

Note: The freedom to acquire, hold, and dispose of property was originally Article 19(1)(f) but was deleted by the 44th Amendment Act, 1978.

Reasonable Restrictions on Freedom of Speech and Expression (Defamation, Contempt of Court, Public Order, etc.)

None of the six freedoms guaranteed by Article 19(1) are absolute. Article 19(2) to 19(6) permit the State to impose reasonable restrictions on the exercise of these freedoms on specific grounds. The grounds for restricting each freedom vary.

For the Freedom of Speech and Expression (Article 19(1)(a)), reasonable restrictions can be imposed on the following grounds (Article 19(2)):

The restrictions must be 'reasonable', meaning they must not be arbitrary or excessive and must have a proper relation to the object sought to be achieved. The reasonableness is subject to judicial review.

Similar grounds for reasonable restrictions are provided for other freedoms under Article 19:


Article 20: Protection in Respect of Conviction for Offences

Article 20 provides safeguards to persons accused of crimes, ensuring protection against arbitrary and excessive punishment. These protections are available to citizens and non-citizens.

Article 20 grants three types of protection:

Ex Post Facto Laws (Article 20(1))

This provision states that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

Double Jeopardy (Article 20(2))

This provision states that no person shall be prosecuted and punished for the same offence more than once.

Protection against Self-incrimination (Article 20(3))

This provision states that no person accused of any offence shall be compelled to be a witness against himself.

These protections under Article 20 are considered fundamental aspects of fair trial and personal liberty and cannot be suspended even during a National Emergency (as per the 44th Amendment Act, 1978).


Article 21: Protection of Life and Personal Liberty

Article 21 is one of the most important Fundamental Rights, guaranteeing the right to life and personal liberty. It states: "No person shall be deprived of his life or personal liberty except according to procedure established by law." This right is available to both citizens and non-citizens.

Meaning and Scope (Procedure Established by Law)

The phrase "procedure established by law" means that a person's life or personal liberty can be deprived only if there is a law that authorises such deprivation, and that law must be enacted by the competent legislature following the prescribed legislative procedure.

Initially, in the A.K. Gopalan v. State of Madras (1950) case, the Supreme Court adopted a narrow interpretation. It held that 'procedure established by law' meant the procedure laid down by statute law (law enacted by the legislature). The Court refused to import the American concept of 'due process of law', which implies that the procedure must not only be legally enacted but also just, fair, and reasonable.

Expansive Interpretation of Article 21 (Right to dignity, privacy, health, education, etc.)

Over time, the Supreme Court significantly broadened the scope of Article 21, moving towards the 'due process' principle. The landmark judgment in Maneka Gandhi v. Union of India (1978) marked a paradigm shift. The Court held that the 'procedure established by law' under Article 21 must be just, fair, and reasonable, and not arbitrary, fanciful, or oppressive. If the procedure is not fair, the law is invalid.

This expansive interpretation led to the inclusion of a multitude of rights within the fold of Article 21. The Supreme Court has declared various rights as part of the 'Right to Life and Personal Liberty', including (but not limited to):

This judicial activism has made Article 21 a dynamic and ever-expanding source of fundamental rights, crucial for protecting civil liberties and promoting human dignity in India.


Article 21A: Right to Education

Article 21A is a relatively recent addition to the list of Fundamental Rights. It elevates the right to education for a specific age group to a primary right.

Provision:

Article 21A states: "The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine."

Introduction:

This article was inserted into the Constitution by the 86th Constitutional Amendment Act, 2002. This amendment was a significant step towards making education a justiciable right, fulfilling a long-standing aspiration reflected in the Directive Principles (originally Article 45).

Before this amendment, the Supreme Court had read the Right to Education as implicit in the Right to Life under Article 21 (e.g., in the Unni Krishnan J.P. v. State of Andhra Pradesh, 1993 case). However, Article 21A made it an explicit and primary Fundamental Right.

Implementation:

To give effect to Article 21A, Parliament enacted the Right of Children to Free and Compulsory Education (RTE) Act, 2009. This Act provides detailed provisions for the operationalisation of this right, including the duties of governments, local authorities, parents, and schools.

Article 21A guarantees education only for children between 6 and 14 years of age. Education for children below 6 years is covered under Article 45 (DPSP), and education beyond 14 years is covered under Article 41 (DPSP).


Article 22: Protection against Arrest and Detention

Article 22 provides protection to persons against arbitrary arrest and detention. It applies to both citizens and non-citizens, but excludes enemy aliens and persons detained under a preventive detention law in certain cases.

Article 22 has two parts:

Part 1 deals with cases of punitive detention (detention as a punishment for an offence after trial and conviction).

Part 2 deals with cases of preventive detention (detention without trial on suspicion that a person is likely to commit an offence).

Safeguards for Arrested Persons (Punitive Detention)

Article 22(1) and 22(2) provide safeguards for a person arrested under an ordinary law:

These safeguards do not apply to an enemy alien or a person arrested or detained under any law providing for preventive detention.

Preventive Detention (Article 22(4) to 22(7))

Preventive detention laws allow the State to detain a person without trial to prevent them from committing an anticipated crime. This is an extraordinary power and the Constitution provides certain safeguards to prevent its misuse:

The safeguards for preventive detention are weaker than those for punitive detention. The power of preventive detention has been a subject of much debate and criticism for potentially violating personal liberty.

Right Against Exploitation (Articles 23-24) and Right to Freedom of Religion (Articles 25-28)

Article 23: Prohibition of Traffic in Human Beings and Forced Labour

Article 23 is a Fundamental Right that protects individuals from exploitation by prohibiting certain exploitative practices. It applies to both citizens and non-citizens and protects them not only against the State but also against private individuals.

Article 23(1) explicitly prohibits:

Any contravention of these provisions is an offence punishable in accordance with law. Parliament has enacted laws like the Immoral Traffic (Prevention) Act, 1956, and the Bonded Labour System (Abolition) Act, 1976, to give effect to Article 23.

Scope and Exceptions

The scope of Article 23 is broad, covering various forms of forced labour and human trafficking.

Exception (Article 23(2)): Article 23(2) allows the State to impose compulsory service for public purposes. For example, the State can require citizens to undertake military service or social service. However, while imposing such service, the State cannot make any discrimination on grounds only of religion, race, caste, or class.

This exception ensures that the State can mandate services essential for national defence or public welfare without violating the prohibition on forced labour.


Article 24: Prohibition of Employment of Children in Factories, etc.

Article 24 is a specific provision aimed at protecting children from hazardous labour. It states: "No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment."

Scope:

Enforcement:

Parliament has enacted several laws to implement Article 24, including:

The Child Labour (Prohibition and Regulation) Amendment Act, 2016, prohibits the employment of children below 14 years in all occupations and processes. It also prohibits the employment of adolescents (14 to 18 years) in certain hazardous occupations and processes. The 2017 amendment aligned the Act with the Right to Education Act, 2009.

Article 24 is an absolute prohibition and has no exceptions, reflecting the strong constitutional commitment to protecting children from exploitation in dangerous work environments.


Article 25: Freedom of Conscience and Free Profession, Practice and Propagation of Religion

Article 25 is a fundamental aspect of the Right to Freedom of Religion. It guarantees freedom of religion to all persons (citizens and non-citizens).

Article 25(1) guarantees all persons the right to:

Subject to Public Order, Morality and Health

The freedoms guaranteed under Article 25 are not absolute. They are subject to:

Article 25(2) allows the State to enact laws:

This balance allows the State to intervene in religious practices when they conflict with social welfare, reform, or other public interests, while preserving the essential freedom of conscience and practice.


Article 26: Freedom to Manage Religious Affairs

Article 26 guarantees certain rights to every religious denomination or any section thereof, subject to public order, morality, and health.

Rights of Religious Denominations:

A religious denomination must be a collection of individuals having a common faith, a common organisation, and a designation by a distinctive name.

Subject to public order, morality, and health, every religious denomination has the right:

While Article 25 deals with the rights of individuals, Article 26 deals with the rights of organized religious groups. The right to manage property is subject to regulation by law, but the right to manage its own affairs in matters of religion is a relatively broader autonomy.


Article 27: Freedom as to Payment of Taxes for Promotion of any Particular Religion

Article 27 prohibits the State from levying taxes for the promotion or maintenance of any particular religion. It reinforces the principle of secularism.

Provision:

Article 27 states: "No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination."

This means that the State cannot use public funds collected through taxes to favour or promote one particular religion over others. This prevents the establishment of a state church or religion and ensures neutrality.

However, Article 27 does not prohibit the State from levying fees. Fees are charged for rendering a specific service (e.g., fees for the regulation of religious institutions, pilgrim tax). The income from fees can be used for regulating religious institutions or providing facilities to pilgrims, etc., even if these services benefit a particular religious group, because fees are a payment for service, not a tax for promotion.


Article 28: Freedom as to Attendance at Religious Instruction or Religious Worship in Certain Educational Institutions

Article 28 prohibits religious instruction in certain educational institutions and deals with attendance at religious worship in such institutions. This further underscores the secular character of the State in the field of education.

Article 28 classifies educational institutions into four types from the perspective of religious instruction:

  1. Institutions wholly maintained by the State: Religious instruction is completely prohibited in such institutions (Article 28(1)).

  2. Institutions administered by the State but established under any endowment or trust requiring religious instruction: Religious instruction is permitted in such institutions (Article 28(2)). This is an exception for institutions where the trust deed or endowment mandates such instruction, even if administered by the State.

  3. Institutions recognised by the State: Religious instruction is permitted. However, no person attending such institution shall be compelled to take part in any religious instruction or attend any religious worship that may be conducted in such institution or any premises attached thereto unless that person or, if a minor, his guardian has given his consent thereto (Article 28(3)).

  4. Institutions receiving aid out of State funds: Same as institutions recognised by the State. Religious instruction is permitted, but attendance requires the consent of the person or their guardian if they are a minor (Article 28(3)).

This article aims to prevent the State from imposing religious education and ensures that participation in religious activities in State-funded or recognised institutions is voluntary.

Cultural and Educational Rights (Articles 29-30)

Article 29: Protection of Interests of Minorities

Article 29 provides protection to minority groups in India. It applies to any section of citizens residing in India having a distinct language, script, or culture.

Definition of Minority

The term 'minority' is not explicitly defined in the Constitution. However, it is understood to refer to communities that are numerically less than 50% of the population in a particular region. Generally, minorities are recognised on the basis of religion and language.

Protection of Language, Script, and Culture

Article 29(1) states that any section of the citizens residing in the territory of India or any part thereof having a distinct language, script, or culture of its own shall have the right to conserve the same.

Article 29(2) provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, or language.

Article 29 thus aims to preserve the distinct cultural identity of minority groups while also ensuring that no citizen is denied admission to educational institutions on specified grounds.


Article 30: Right of Minorities to Establish and Administer Educational Institutions

Article 30 grants specific rights to religious and linguistic minorities regarding educational institutions. It is a crucial right that enables minorities to maintain their distinct identity.

Scope and Limitations

Article 30(1) states that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

Limitations: While minorities have considerable autonomy, the right to administer is not absolute. The State can regulate these institutions to ensure academic standards, discipline, hygienic conditions, and proper management. However, such regulation should not be excessive or amount to nationalisation or virtual deprivation of the right to administer.

Article 30(1A), added by the 44th Amendment Act, 1978, states that in making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under clause (1). This provides a safeguard against state acquisition that would undermine the minority's right.

State Aid and Regulation

Article 30(2) states that the State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

Minority educational institutions have been categorised by courts into three types based on state affiliation: (a) seeking recognition and aid from the State; (b) seeking only recognition but not aid; and (c) neither seeking recognition nor aid. The degree of state regulation varies depending on the category.

Article 30 is a crucial safeguard for minority rights in India's diverse society, enabling them to preserve their cultural and religious identity through educational institutions.

Suspension of Fundamental Rights and Writs

Article 33: Power to Modify Fundamental Rights in their application to Forces

Article 33 grants Parliament the power to modify the application of Fundamental Rights to certain groups to ensure the proper discharge of their duties and the maintenance of discipline.

Scope:

Article 33 empowers Parliament to make laws determining to what extent any of the rights conferred by Part III shall, in their application to:

shall be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

Note that this power is vested only in Parliament, not State Legislatures, to ensure uniformity across the country for these sensitive forces.

Laws made under Article 33 cannot be challenged in court on the ground of contravention of any of the Fundamental Rights.


Article 34: Restriction on Rights Conferred by this Part when Martial Law is in force

Article 34 deals with the effects of Martial Law on Fundamental Rights. Martial Law is imposed in extraordinary situations like war, invasion, insurrection, or rebellion, where the civil administration is unable to function.

Provision:

Article 34 states that notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

This means that Parliament can pass an Indemnity Act to protect government servants or others for acts done during the period when martial law was in force, even if such acts may have violated Fundamental Rights. It also allows Parliament to validate actions taken under martial law.

Unlike the suspension of rights during a National Emergency, Martial Law has no specific mention in the Constitution other than Article 34. It is an extraordinary power that suspends ordinary law and government and establishes military rule. Article 34 essentially allows Parliament to provide legal cover for actions taken during such rule.


Article 35: Legislation to give effect to the Provisions of this Part

Article 35 concludes Part III by empowering Parliament to make laws to give effect to certain provisions of the Fundamental Rights chapter.

Scope:

Article 35 states that, notwithstanding anything in this Constitution, Parliament shall have, and the Legislature of a State shall not have, power to make laws:

Furthermore, Article 35 provides that any law in force immediately before the commencement of the Constitution in the territory of India with respect to any of the matters specified in this article shall continue in force until altered or repealed or amended by Parliament.

This article ensures that certain powers related to Fundamental Rights legislation are vested exclusively in Parliament, promoting uniformity across the country on these important matters.


Article 32: Remedies for Enforcement of Rights Conferred by this Part (Writ Jurisdiction of Supreme Court)

Article 32 is the heart and soul of Fundamental Rights enforcement in India. It is a Fundamental Right itself, guaranteeing the right to move the Supreme Court for the enforcement of other Fundamental Rights.

The Right to Constitutional Remedies:

Article 32(1) guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III.

Article 32(2) empowers the Supreme Court to issue directions or orders or writs, including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III.

Article 32(3) states that Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (No such law has been made).

Article 32(4) states that the right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution (i.e., during a National Emergency under Article 359, but with the exclusion of Articles 20 and 21).

Habeas Corpus

Literal meaning: 'To have the body of'.

Issued by the court to a person who has detained another person to produce the body of the latter before the court. The court then examines the cause and legality of the detention. If the detention is found to be illegal, the court orders the release of the person.

It is a bulwark of individual liberty against arbitrary detention. It can be issued against both public authorities and private individuals.

Mandamus

Literal meaning: 'We Command'.

Issued by the court to a public official, public body, corporation, inferior court, or government directing them to perform a specific public duty that they are legally bound to perform but have failed or refused to do.

Cannot be issued against a private individual or body (unless performing a public function), the President or Governors, or against a High Court acting in its judicial capacity.

Used to compel the performance of mandatory public duties, thus ensuring the functioning of public authorities according to law.

Prohibition

Literal meaning: 'To forbid'.

Issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.

It is a preventive writ, issued when the lower court is in the process of exceeding its jurisdiction but has not yet delivered the decision.

Certiorari

Literal meaning: 'To be certified' or 'To be informed'.

Issued by a higher court to a lower court or tribunal or quasi-judicial authority to either transfer a case pending with the latter to itself or to quash the order already passed by the latter.

It is a corrective writ, used to correct errors of jurisdiction or errors of law apparent on the face of the record.

Originally available only against judicial and quasi-judicial bodies, the Supreme Court expanded its scope to include administrative authorities affecting the rights of individuals.

Quo Warranto

Literal meaning: 'By what authority or warrant'.

Issued by the court to inquire into the legality of the claim of a person to a public office. It is used to prevent illegal usurpation of a public office by a person.

Can be sought by any interested person and is not limited to the person whose right has been infringed, provided the office is a public office of a substantive character, created by a statute or the Constitution.

Ensures that public offices are held by persons legally entitled to them.

The writ jurisdiction under Article 32 is an original jurisdiction of the Supreme Court, meaning one can approach the Supreme Court directly. The Supreme Court cannot refuse to exercise its writ jurisdiction for the enforcement of Fundamental Rights.


Article 226: Power of High Courts to Issue Writs

Article 226 grants the High Courts the power to issue writs, which is similar to but broader than the power of the Supreme Court under Article 32.

Power to Issue Writs:

Article 226(1) empowers every High Court to issue to any person or authority, including in appropriate cases, any Government, within its territorial jurisdiction, directions, orders, or writs, including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari, or any of them.

Territorial Jurisdiction

The power of a High Court to issue writs is confined to its territorial jurisdiction. The High Court can issue writs against a person or authority residing or located within its territorial limits or against a government if its seat is within those limits. However, the 15th Amendment Act, 1963, provided that the High Court can also exercise jurisdiction in relation to a government, authority, or person located outside its territorial jurisdiction if the cause of action wholly or partly arises within its territorial jurisdiction.

Difference between Article 32 and Article 226

While both articles provide writ jurisdiction, there are key differences:

Feature Article 32 (Supreme Court) Article 226 (High Court)
Scope Only for the enforcement of Fundamental Rights. For the enforcement of Fundamental Rights and for 'any other purpose' (i.e., for enforcing any other legal right).
Nature of Right It is a Fundamental Right itself. The Supreme Court cannot refuse to exercise this power. It is a constitutional right but not a Fundamental Right. The High Court may refuse to exercise this power (e.g., if an alternative remedy is available).
Jurisdiction Original and exclusive for Fundamental Rights. Original but not exclusive (Supreme Court also has this power).
Territorial Reach Covers the entire territory of India. Limited to the territorial jurisdiction of the High Court (subject to the cause of action arising within its territory).

The power of the High Court under Article 226 is, in effect, wider than that of the Supreme Court under Article 32 because it extends to the enforcement of all legal rights, not just Fundamental Rights.

Limitations on Fundamental Rights and Judicial Review

Reasonable Restrictions: Doctrine of Proportionality

As discussed earlier, most Fundamental Rights are not absolute and are subject to 'reasonable restrictions' imposed by the State on specified grounds. The concept of 'reasonableness' is crucial for ensuring that the restrictions are not arbitrary or excessive.

Reasonable Restrictions:

The term 'reasonable' implies that the restriction must be justified. It must have a proper relationship to the object sought to be achieved and should not be excessive or disproportionate to the situation it aims to address.

Whether a restriction is reasonable is ultimately decided by the courts through judicial review. The courts consider various factors, such as the nature of the right infringed, the purpose of the restriction, the extent and urgency of the evil sought to be remedied, the duration of the restriction, and the circumstances under which it is imposed.

Doctrine of Proportionality:

The Doctrine of Proportionality is a key judicial test used to determine the reasonableness of a restriction. It requires that the restriction imposed by the State should be proportionate to the aim sought to be achieved. This means:

The Indian Supreme Court has increasingly applied the doctrine of proportionality, particularly in cases involving Fundamental Rights under Article 14, 19, and 21, to ensure that state action infringing upon rights is not only backed by law but also necessary and proportionate to a legitimate public interest.


Judicial Review of Restrictions

The judiciary, particularly the Supreme Court and High Courts, plays a vital role in reviewing laws and executive actions that impose restrictions on Fundamental Rights. This power of judicial review ensures that the State does not exceed its authority and that restrictions are valid and reasonable.

Role of Judicial Review:

Tests for Reasonableness

The courts apply various tests to determine the reasonableness of a restriction, evolving through judicial pronouncements:

The courts examine the facts and circumstances of each case to determine the reasonableness of a restriction. The burden of proving that a restriction is reasonable generally lies on the State.


The Concept of "Basic Structure" of the Constitution

The Doctrine of Basic Structure is a judicial innovation that limits the power of Parliament to amend the Constitution. It is a cornerstone of modern Indian constitutional law, safeguarding the fundamental principles of the Constitution.

Kesavananda Bharati Case (1973)

This landmark case arose from a challenge to the 24th and 25th Constitutional Amendment Acts, which aimed to neutralise the Golaknath judgment and give Parliament absolute power to amend the Constitution, including Fundamental Rights.

The Supreme Court, by a majority of 7:6, held that Parliament's power to amend the Constitution under Article 368 is not unlimited. Parliament can amend any part of the Constitution, including Fundamental Rights, but it cannot alter or destroy the "basic structure" or "basic features" of the Constitution.

The Court did not provide an exhaustive list of what constitutes the basic structure. Different judges listed different features. Some of the features identified by the majority judges included:

The basic structure doctrine means that Parliament cannot use its amending power to change the Constitution in a way that abrogates these fundamental principles. The Preamble, Fundamental Rights, and Directive Principles are seen as embodying many of these basic features.

Subsequent Judgments (Minerva Mills, I.R. Coelho)

The Basic Structure doctrine has been reaffirmed and developed in several subsequent judgments:

The Basic Structure doctrine serves as a vital limitation on Parliament's amending power, ensuring that the core identity and fundamental principles of the Indian Constitution remain protected from majoritarian political power. It highlights the judiciary's role as the ultimate interpreter and guardian of the Constitution.