FUNDAMENTAL RIGHTS

FUNDAMENTAL RIGHTS (PART III: ARTICLES 12-35)

INTRODUCTION

The Fundamental Rights are enshrined in Part III of the Indian Constitution (Articles 12-35). They constitute the Magna Carta of India and are designed to establish a democratic system, protect individual liberties against state invasion, and promote political democracy.

Key Points:

• Derived inspiration from the US Constitution (Bill of Rights)

• More elaborate and comprehensive than any other country, including the USA

• Guaranteed to all persons without discrimination, upholding equality, dignity, and national unity

• Prevent establishment of authoritarian and despotic rule

ORIGINAL AND CURRENT FUNDAMENTAL RIGHTS

Originally (1950): Seven Fundamental Rights

1. Right to Equality (Articles 14–18)

2. Right to Freedom (Articles 19–22)

3. Right Against Exploitation (Articles 23–24)

4. Right to Freedom of Religion (Articles 25–28)

5. Cultural and Educational Rights (Articles 29–30)

6. Right to Property (Article 31)

7. Right to Constitutional Remedies (Article 32)

Current Position: Six Fundamental Rights

44th Amendment Act, 1978 deleted the Right to Property from Fundamental Rights. It was converted to a legal right under Article 300-A (Part XII) instead of a fundamental right.

FEATURES OF FUNDAMENTAL RIGHTS

1. Classification by Applicability

• Some available only to citizens (Articles 15, 16, 19, 29, 30)

• Others available to all persons (citizens, foreigners, and legal persons like companies) – Articles 14, 20, 21, 21A, 22, 23, 24, 25, 26, 27, 28

2. Nature of Restrictions

• Not absolute but qualified – State can impose reasonable restrictions

• Courts decide reasonableness

• Balance between individual rights and societal interests

3. Scope of Application

• Available against arbitrary state action (with exceptions)

• Limited protection against private individual actions

• No constitutional remedies for violation by private individuals (only ordinary legal remedies)

4. Character

• Negative rights: Impose limitations on state authority (e.g., freedom of speech)

• Positive rights: Confer privileges (e.g., right to education)

5. Justiciability

• Justiciable rights – Enforceable through courts

• Direct recourse to Supreme Court under Article 32

6. Enforcement

• Defended and guaranteed by the Supreme Court

• Aggrieved persons can directly approach the Supreme Court without going through High Courts

7. Amendability

• Not permanent or sacrosanct

• Can be amended only through constitutional amendment, not ordinary legislation

• Cannot violate the ‘basic structure’ of Constitution (Kesavananda Bharati doctrine)

8. Suspension During National Emergency

• Can be suspended during National Emergency (except Articles 20 and 21)

• Article 19 rights can be suspended only in external emergency (war/foreign aggression), not in internal emergency (armed rebellion)

9. Scope Limitations

Limited by:

• Article 31A: Saving of laws for acquisition of estates

• Article 31B: Validation of acts in Ninth Schedule

• Article 31C: Saving of laws implementing certain Directive Principles

10. Armed Forces and Services

• Application can be restricted or abrogated by Parliament for armed forces, para-military forces, police, intelligence agencies (Article 33)

11. Martial Law

• Restrictions during martial law in any area (Article 34)

12. Direct Enforceability

• Most are directly enforceable (self-executory)

• Some require supporting legislation through parliamentary laws (Article 35)

DEFINITION OF ‘STATE’ (ARTICLE 12)

Article 12. Definition.—In this Part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

For the purposes of Fundamental Rights, the term ‘State’ includes:

1. Government and Parliament of India (Union’s executive and legislative organs)

2. State Governments and Legislatures (state’s executive and legislative organs)

3. Local Authorities (municipalities, panchayats, district boards, improvement trusts)

4. All Other Authorities (statutory/non-statutory bodies like LIC, ONGC, SAIL)

5. Private bodies acting as instruments of the State

LAWS INCONSISTENT WITH FUNDAMENTAL RIGHTS (ARTICLE 13)

Article 13. Laws inconsistent with or in derogation of the fundamental rights.—(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b) “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.
(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.

Key Provision:

Laws inconsistent with or in derogation of Fundamental Rights are void and unenforceable.

Doctrine of Judicial Review:

• Supreme Court (Article 32) and High Courts (Article 226) have power to declare laws unconstitutional

• Grounds: Contravention of Fundamental Rights

Scope of “Law”:

1. Permanent laws (enacted by Parliament or state legislatures)

2. Temporary laws (ordinances by President or Governors)

3. Statutory instruments (delegated/executive legislation – orders, rules, notifications, bye-laws)

4. Non-legislative sources (customs or usages having force of law)

Exception – Constitutional Amendments:

• Constitutional amendments are not “laws” under Article 13

• However (Kesavananda Bharati, 1973): Constitutional amendments can be challenged if they violate fundamental rights forming part of the ‘basic structure’ of Constitution

1. RIGHT TO EQUALITY (ARTICLES 14-18)

A. EQUALITY BEFORE LAW AND EQUAL PROTECTION (ARTICLE 14)

14. Equality before law.—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Applicability: All persons (citizens and non-citizens)

Two Key Concepts:

• Equality Before Law (British origin)

  • Absence of special privileges

  • Equal subjection to ordinary law

  • No person is above law (rich/poor, high/low, official/non-official)

• Equal Protection of Laws (American origin)

  • Equality of treatment under equal circumstances

  • Similar application to similarly situated persons

  • Like should be treated alike without discrimination

Reasonable Classification:

• Article 14 permits reasonable classification but forbids class legislation

• Classification must be:

  • Based on intelligible differential

  • Have substantial distinction

  • Not arbitrary, artificial, or evasive

Rule of Law:

• Enshrined in Article 14

• A ‘basic feature’ of Constitution (cannot be destroyed by amendment)

• Contains A.V. Dicey’s three elements:

  1. Absence of arbitrary power

  2. Equality before law

  3. Primacy of individual rights (modified in Indian context – Constitution is source of rights)

Exceptions to Equality:

1. Presidential/Gubernatorial Immunities (Article 361):

   • Not answerable to courts for official acts

   • No criminal proceedings during term

   • No arrest during term

   • No civil proceedings for personal acts during term (2 months after notice)

2. Parliamentary Privilege (Articles 105, 361-A):

   • Members immune for statements or votes in Parliament

   • Press reports of parliamentary proceedings protected

3. State Legislative Privilege (Article 194):

   • State legislators immune for statements in legislatures

4. Article 31-C Exception:

   • Laws implementing Directive Principles (Articles 39(b) and (c)) exempt from Article 14 challenge

5. Diplomatic Immunity:

   • Foreign sovereigns, ambassadors, diplomats

   • UNO and its agencies

B. PROHIBITION OF DISCRIMINATION (ARTICLE 15)

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—(1) The State shall not discriminate against any citizenon grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) 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.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.
(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,—
(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and
(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category. Explanation.—For the purposes of this article and article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.

Applicability: Citizens only (not foreigners)

Primary Provision:
State shall not discriminate against citizens on grounds only of religion, race, caste, sex, or place of birth.

Two Parts:

1. General prohibition on state discrimination

2. Specific prohibition on discrimination in:

   • Access to shops, restaurants, hotels, public entertainment places

   • Use of wells, tanks, bathing ghats, roads, public resorts maintained by state or dedicated for public use

   • Applies to both state and private individuals

Key Word: “Only”

• Discrimination on other grounds is permissible

• Examples: merit-based distinctions, professional qualifications

Exceptions (Special Provisions for Advancement):

1. Special provisions for women and children (Article 15(3)):

   • Reservation of seats in local bodies

   • Free education for children

2. Special provisions for backward classes/SC/ST (Article 15(4)):

   • Reserved seats in educational institutions

   • Fee concessions

3. OBC Reservation in Private Institutions (93rd Amendment, 2005) (Article 15(5)):

   • Reservation in private educational institutions (aided/unaided)

   • Exception: Minority educational institutions excluded

   • Central Educational Institutions (Reservation in Admission) Act, 2006: 27% quota for OBCs in central higher institutions (IITs, IIMs)

   • Supreme Court 2008: Upheld validity; directed exclusion of ‘creamy layer’

CREAMY LAYER CONCEPT

Children of following categories excluded from OBC quota benefits:

1. Constitutional post holders (President, VP, SC/HC Judges, UPSC members, CEC, CAG)

2. Group A/Class I and Group B/Class II officers in All-India/Central/State services

3. Officers equivalent rank in PSUs, Banks, Insurance, Universities

4. Military officers of rank Colonel and above (equivalent in Navy, Air Force, Paramilitary)

5. Professionals (doctors, lawyers, engineers, artists, authors, consultants)

6. Persons engaged in trade, business, industry

7. Agriculturalists with holdings above certain limit

8. Persons with gross annual income above ₹4.5 lakhs or wealth exceeding exemption limit

Evolution of Creamy Layer Ceiling:

• 1993: ₹1 lakh (introduced)

• 2004: ₹2.5 lakhs (revised)

• 2008: ₹4.5 lakhs (revised)

• 2013: Proposal to raise to ₹6 lakhs (under consideration)

C. EQUALITY OF OPPORTUNITY IN PUBLIC EMPLOYMENT (ARTICLE 16)

16. Equality of opportunity in matters of public employment.—

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an  office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
(4A) Nothing in this article shall prevent the State from making any provision for reservation 3[in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the
ceiling of fifty per cent. reservation on total number of vacancies of that year.

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.

Applicability: Citizens only

Main Provision:
No citizen can be discriminated against or be ineligible for employment/office under the State on grounds of religion, race, caste, sex, descent, place of birth, or residence.

Exceptions:

1. Residence requirement (Article 16(3)):

   • Parliament can prescribe residence as employment condition

   • Public Employment (Requirement as to Residence) Act, 1957 expired in 1974

   • Only Andhra Pradesh has such provisions now

2. Reservation for backward classes (Article 16(4)):

   • State can reserve appointments for under-represented backward classes in state services

3. Religious institutions (Article 16(5)):

   • Office holders in religious/denominational institutions must belong to that religion

MANDAL COMMISSION AND AMENDMENTS

Mandal Commission (1980):

• Appointed 1979 under B.P. Mandal

• Identified 3,743 castes as socially/educationally backward (52% of population, excluding SC/ST)

• Recommended 27% reservation for OBCs (total 50% with SC/ST)

Implementation:

• 1990 (V.P. Singh Govt): Declared 27% reservation for OBCs

• 1991 (Narasimha Rao Govt): Added 10% for economically backward higher castes

Landmark: Mandal Case (1992)
Supreme Court upheld 27% OBC reservation with conditions:

1. Exclude ‘creamy layer’

2. No reservation in promotions (confined to initial appointments only)

3. Total reserved quota not exceed 50% (applied yearly)

4. ‘Carry forward rule’ valid for unfilled vacancies

5. Establish permanent statutory body for OBC inclusion/exclusion

Constitutional Amendments:

1. 77th Amendment (1995):

   • Added Article 16(4A): Enabled reservation in promotions for SC/ST in state services

2. 85th Amendment (2001):

   • Provided ‘consequential seniority’ for promotion under reservation

   • Retrospective effect from June 1995

3. 81st Amendment (2000):

   • Added Article 16(4B): Ended 50% ceiling for backlog/unfilled vacancies

   • Unfilled reserved vacancies treated separately

4. 76th Amendment (1994):

   • Tamil Nadu Reservations Act placed in Ninth Schedule (69% reservation protected)

D. ABOLITION OF UNTOUCHABILITY (ARTICLE 17)

17. Abolition of Untouchability.—“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.

Provision:

• Abolishes ‘untouchability’ in any form

• Enforcement of disabilities from untouchability is an offense punishable by law

Protection of Civil Rights Act, 1955:

• Amended in 1976 (renamed from Untouchability (Offences) Act, 1955)

• Defines civil right: Right accruing from abolition of untouchability

Nature of Untouchability:

• Not literal social boycott but historically developed social disabilities

• Imposed on certain castes by reason of birth

• Supreme Court ruled: Applies to social disabilities of caste-based discrimination, not religious exclusion

Offenses Under Act (Punishment: 6 months imprisonment and/or ₹500 fine):

1. Preventing access to places of worship

2. Justifying untouchability on traditional/religious grounds

3. Denying access to shops, hotels, entertainment

4. Insulting SC person on untouchability grounds

5. Refusing hospital/educational institution/hostel admission

6. Preaching untouchability

7. Refusing to sell goods or render services

Additional Consequence:

• Convicted person disqualified from election to Parliament/state legislature

Supreme Court Holding:

• Right under Article 17 available against private individuals

• State has constitutional obligation to ensure this right is protected

E. ABOLITION OF TITLES (ARTICLE 18)

18. Abolition of titles.—(1) No title, not being a military or academic distinction, shall be conferred by the State.
(2) No citizen of India shall accept any title from any foreign State.

(3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.
(4) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.

Four Key Provisions:

1. Prohibition on state conferring titles (except military/academic distinction) on citizens or foreigners

2. Prohibition on Indian citizens accepting titles from foreign states

3. Foreign officers cannot accept foreign titles without President’s consent

4. All state office holders cannot accept presents, emoluments, or offices from foreign states without President’s consent

Effect:

• Hereditary titles of nobility banned (Maharaja, Raj Bahadur, Rai Bahadur, Dewan Bahadur, etc.)

• Against principle of equal status

National Awards (1996 Supreme Court Ruling):

• Bharat Ratna, Padma Vibhushan, Padma Bhushan, Padma Sri upheld as valid

• Do NOT constitute ‘titles’ (only hereditary nobility banned)

• Must NOT be used as suffixes/prefixes to names (forfeiture consequence)

• Merit recognition consistent with equality principle

History:

• Instituted in 1954

• Discontinued by Janata Party (1977)

• Revived by Indira Gandhi Government (1980)

2. RIGHT TO FREEDOM (ARTICLES 19-22)

A. SIX FREEDOM RIGHTS (ARTICLE 19)

19. Protection of certain rights regarding freedom of speech, etc.—
(1) All citizens shall have the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions 2[or co-operative societies];
(d) to move freely throughout the territory of India; 

(e) to reside and settle in any part of the territory of India; [and]
(f)* * * * *]
(g) to practise any profession, or to carry on any occupation, trade or business.
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of
any existing law, or prevent the State from making any law, in so far as such
law imposes reasonable restrictions on the exercise of the right conferred by the
said sub-clause in the interests of 4[the sovereignty and integrity of India], the
security of the State, friendly relations with foreign States, public order,
decency or morality, or in relation to contempt of court, defamation or incitement to an offence.]
(3) Nothing in sub-clause (b) of the said clause shall affect the operation
of any existing law in so far as it imposes, or prevent the State from making
any law imposing, in the interests of [the sovereignty and integrity of India or]
public order, reasonable restrictions on the exercise of the right conferred by
the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation
of any existing law in so far as it imposes, or prevent the State from making
any law imposing, in the interests of [the sovereignty and integrity of India or]
public order or morality, reasonable restrictions on the exercise of the right
conferred by the said sub-clause.
(5) Nothing in [sub-clauses (d) and (e)] of the said clause shall affect
the operation of any existing law in so far as it imposes, or prevent the State
from making any law imposing, reasonable restrictions on the exercise of any
of the rights conferred by the said sub-clauses either in the interests of the
general public or for the protection of the interests of any Scheduled Tribe. 

(6) Nothing in sub-clause (g) of the said clause shall affect the operation
of any existing law in so far as it imposes, or prevent the State from making
any law imposing, in the interests of the general public, reasonable restrictions
on the exercise of the right conferred by the said sub-clause, and, in particular,
[nothing in the said sub-clause shall affect the operation of any existing law in
so far as it relates to, or prevent the State from making any law relating to,—
(i) the professional or technical qualifications necessary for practising
any profession or carrying on any occupation, trade or business; or
(ii) the carrying on by the State, or by a corporation owned or
controlled by the State, of any trade, business, industry or service,
whether to the exclusion, complete or partial, of citizens or otherwise.]

Applicability: Citizens only (not foreigners or legal entities except shareholders)

Available against: State action only (not private individuals)

Six Rights:

(i) FREEDOM OF SPEECH AND EXPRESSION

Definition:
Right to express views, opinions, beliefs, convictions freely by word, writing, printing, pictures, or any other manner.

Included Rights (Supreme Court expanded interpretation):

• Right to propagate own and others’ views

• Freedom of press

• Freedom of commercial advertisements

• Right against telephone tapping

• Right to telecast (no state monopoly on electronic media)

• Right against political bundles

• Right to know about government activities (Right to Information)

• Freedom of silence

• Right against pre-censorship on newspapers

• Right to demonstration/picketing (but not strike)

Reasonable Restrictions Allowed On:

• Sovereignty and integrity of India

• Security of state

• Friendly relations with foreign states

• Public order

• Decency or morality

• Contempt of court

• Defamation

• Incitement to offense

(ii) FREEDOM OF ASSEMBLY

Definition:
Right to assemble peaceably and without arms

Includes:

• Public meetings

• Demonstrations

• Processions

Conditions:

• On public land only

• Must be peaceful and unarmed

• Does NOT protect violent, disorderly, riotous assemblies or those causing breach of public peace

Not included: Right to strike

Reasonable Restrictions:

• Sovereignty and integrity of India

• Public order and traffic maintenance (Section 144 CrPC)

Section 141 IPC:
Assembly of 5+ persons becomes unlawful if object is:

• Resist law/legal process execution

• Forcibly occupy someone’s property

• Commit mischief or criminal trespass

• Force person to illegal act

• Threaten government officials

(iii) FREEDOM OF ASSOCIATION

Definition:
Right to form associations, unions, co-operative societies

Includes:

• Political parties, companies, partnerships

• Societies, clubs, organizations

• Trade unions

• Any body of persons

• Right to continue membership

• Negative aspect: Right NOT to form or join association

Excludes:

• Right to recognition is NOT a fundamental right

Reasonable Restrictions:

• Sovereignty and integrity of India

• Public order

• Morality

Trade Unions:

• No guaranteed right to:

  • Effective bargaining

  • Strike

  • Declare lock-out

• Right to strike can be controlled by industrial law

(iv) FREEDOM OF MOVEMENT

Definition:
Right to move freely throughout India’s territory

Scope:

• Move between states

• Move within states

• Promotes national feeling (not parochialism)

Dimensions:

• Internal (within country) – Protected by Article 19

• External (out of country/return) – Protected by Article 21

Reasonable Restrictions:

• General public interests

• Protection of scheduled tribe interests

Tribal Area Protection:

• Restrict outsiders to preserve:

  • Distinctive culture, language, customs

  • Traditional vocations

  • Properties against exploitation

Supreme Court Rulings:

• Movement of prostitutes can be restricted (public health/morals)

• Movement of AIDS-affected persons can be restricted

(v) FREEDOM OF RESIDENCE AND SETTLEMENT

Definition:
Two parts:

• Right to reside (temporary stay)

• Right to settle (permanent domicile/home)

Purpose:

• Remove internal barriers

• Promote nationalism

• Avoid narrow mindedness

Reasonable Restrictions:

• General public interests

• Scheduled tribe interests (tribal area protection)

Protection of Tribal Interests:

• Regulate property rights per customary laws

• Restrict outsider settlement/residence

Supreme Court Ruling:

• Certain areas can ban certain persons (prostitutes, habitual offenders)

Relationship with Article 19(iv):

• Overlapping and complementary

(vi) FREEDOM OF PROFESSION, OCCUPATION, TRADE, BUSINESS

Definition:
Right to practice any profession or carry on any occupation, trade, or business

Scope: Covers all means of earning livelihood

Reasonable Restrictions:

• General public interests

State Powers:

1. Prescribe professional/technical qualifications

2. Carry on trades/businesses itself (monopoly or partial)

Exclusions:

• Immoral trades (trafficking women/children)

• Dangerous activities (harmful drugs, explosives)

• State can absolutely prohibit or regulate via licensing

Original Article 19:

• Originally contained 7 rights (included right to acquire/hold/dispose property)

• 44th Amendment (1978) deleted property right

REASONABLE RESTRICTIONS ON ARTICLE 19 RIGHTS

General Principle:
State can impose restrictions only on grounds specified in Article 19, not on any other grounds.

Procedure:

• Courts determine reasonableness

• Not left to state discretion

B. PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES (ARTICLE 20)

20. Protection in respect of conviction for offences.—(1) 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.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.

Applicability: Citizens and non-citizens (including legal persons)

Protects against: Arbitrary and excessive punishment

Three Key Protections:

1. NO EX-POST-FACTO LAW

Definition:
No person shall be convicted of offense except for violation of law in force at time of act commission, nor subjected to penalty greater than prescribed at that time.

Scope:

• Applies only to criminal laws (not civil or tax laws)

• Prohibits only conviction/sentence (trial permitted)

• Cannot be claimed for:

  • Preventive detention

  • Security demands

Definition: Ex-post-facto law

• Imposes penalties retrospectively on past acts

• Increases penalties for such acts

2. NO DOUBLE JEOPARDY

Definition:
No person shall be prosecuted and punished for same offense more than once

Availability:

• Only in court/judicial tribunal proceedings

• NOT available in departmental/administrative proceedings (not judicial)

3. NO SELF-INCRIMINATION

Definition:
No accused person shall be compelled to witness against self

Extends To:

• Oral evidence

• Documentary evidence

Does NOT extend to:

1. Compulsory production of material objects

2. Thumb impressions, specimen signatures

3. Blood specimens

4. Compulsory body exhibition

Scope:

• Criminal proceedings only

• NOT civil or non-criminal proceedings

C. PROTECTION OF LIFE AND PERSONAL LIBERTY (ARTICLE 21)

21. Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law.

Applicability: ALL persons (citizens and non-citizens)

Core Provision:
No person shall be deprived of life or personal liberty except according to procedure established by law

JUDICIAL INTERPRETATION EVOLUTION

Gopalan Case (1950) – NARROW Interpretation:

• Protection against arbitrary executive action only (not legislative)

• ‘Personal liberty’ = liberty relating to person/body only

• Law validity cannot be questioned for unreasonableness

Menaka Case (1978) – WIDER Interpretation (OVERRULED Gopalan):

• Protection extended to arbitrary executive AND legislative action

• Introduced ‘due process of law’ standard (American approach)

• Law must be reasonable, fair, just

• ‘Right to life’ = live with human dignity

• ‘Personal liberty’ = widest amplitude of rights

• All aspects making life meaningful, complete, worth living included

RIGHTS RECOGNIZED UNDER ARTICLE 21

Supreme Court has declared these as part of Article 21:

1. Right to live with human dignity

2. Right to decent environment (pollution-free water/air, protection from hazardous industries)

3. Right to livelihood

4. Right to privacy

5. Right to shelter

6. Right to health

7. Right to free education (up to 14 years)

8. Right to free legal aid

9. Right against solitary confinement

10. Right to speedy trial

11. Right against handcuffing

12. Right against inhuman treatment

13. Right against delayed execution

14. Right to travel abroad

15. Right against bonded labour

16. Right against custodial harassment

17. Right to emergency medical aid

18. Right to timely medical treatment in government hospitals

19. Right not to be driven out of state

20. Right to fair trial

21. Right of prisoner to necessities of life

22. Right of women to be treated with decency/dignity

23. Right against public hanging

24. Right to hearing

25. Right to information

26. Right to reputation

D. RIGHT TO ELEMENTARY EDUCATION (ARTICLE 21-A)

21A. Right to education.—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.

RECENT ADDITION: 86th Constitutional Amendment Act, 2002

Provision:
State shall provide free and compulsory education to all children aged 6-14 years in manner determined by state.

Scope:

• Elementary education only (not higher/professional education)

• Free education obligation

• Compulsory education obligation

Historical Background:

1. 1993 Supreme Court (Unnikrishnan case):

   • Recognized fundamental right to primary education under Article 21

   • Entitlement to free education until age 14

   • Beyond 14: subject to state’s economic capacity and development

2. 2002 Amendment Changes:

   • Article 21-A (Part III): Made education a fundamental right (ages 6-14)

   • Article 45 (Part IV/Directive Principles) revised: Shifted to early childhood care/education (ages 3-6)

   • Article 51-A (Part IX/Fundamental Duties): Duty of parents/guardians to provide education (ages 6-14)

RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION (RTE) ACT, 2009

Enacted to give effect to Article 21-A

Effective Date: 1 April 2010

Key Provisions:

1. Free Education:

   • No fees, charges, or expenses preventing elementary completion

   • Applies to government-supported schools

2. Compulsory Education:

   • Government obligation to ensure:

     • Free admission

     • Attendance

     • Completion (ages 6-14)

   • Applies to local authorities

3. Age-Appropriate Admission:

   • Non-admitted children (above 6 years) admitted to appropriate class

   • Elementary education free until completion (even if above 14)

4. Pupil-Teacher Ratios (PTRs):

   • Specified norms to prevent urban-rural imbalance

   • Rational teacher deployment

5. Teacher Qualifications:

   • Must pass Teacher Eligibility Test (TET)

   • Minimum qualifications per NCTE standards

6. School Management Committees (SMCs):

   • Include officials, parents, guardians, teachers

   • Monitor government grants utilization

   • Prepare school development plans

7. Prohibitions:

   • Physical punishment and mental harassment

   • Screening/entrance procedures for admission

   • Capitation fees

   • Private tuition by teachers

   • Running schools without recognition

8. Teacher Deployment:

   • Cannot be deployed for non-educational work (except census, elections, disaster relief)

   • Ensures rural-urban teacher balance

9. Curriculum:

   • Developed per Constitutional values

   • All-round child development

   • Child-centric and child-friendly

   • Builds knowledge, potential, talent

   • Addresses trauma, fear, anxiety

RTE ACT AMENDMENTS

2017 Amendment:

• Extended deadline for unqualified teachers to acquire qualifications

• Emphasized distance learning for teacher training

2019 Amendment:

• Removed ‘no-detention policy’

• Allowed state governments to reinstate examinations in Classes 5 and 8

• Failed students: Provided remedial instruction and re-examination opportunity

• Could be detained upon re-exam failure

2024 Amendment (December 2024):

• Detention Policy (Classes 5 & 8) for Central Government schools/Union Territories without legislature

• Process if student fails annual examination:

  1. Additional instruction provided

  2. Re-examination opportunity within 2 months of results

  3. If still fails: Continued in same grade

  4. Class teacher engages with student/parents for targeted interventions

2014 Supreme Court Ruling:

• RTE Act provisions do NOT apply to minority educational institutions

• Minority institutions exempted

GOVERNMENT INITIATIVES

• World Bank Context: RTE Act first legislation placing government responsibility for enrolment, attendance, and completion (unlike USA where parents responsible)

• 14-Member National Advisory Council (NAC): Constituted to oversee RTE implementation

E. PROTECTION AGAINST ARREST AND DETENTION (ARTICLE 22)

22. Protection against arrest and detention in certain cases.—

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply—

(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless—
(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:  Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or
(b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

(7) Parliament may by law prescribe—
(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);
(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).

Applicability: Partially available to all; restrictions on aliens and preventive detention cases

Two Types of Detention:

1. Punitive Detention:

• Punishment for past offense

• After trial and conviction

2. Preventive Detention:

• Without trial/conviction

• Purpose: Prevent future offense

• Based on suspicion (precautionary measure)

PART 1: ORDINARY LAW PROTECTIONS

Applies to: Persons arrested/detained under ordinary criminal law

NOT for: Aliens, preventive detention cases

Rights Granted:

1. Right to be informed of grounds of arrest

2. Right to legal counsel (consult and be defended by legal practitioner)

3. Right to production before magistrate within 24 hours (excluding journey time)

4. Right to be released after 24 hours unless magistrate authorizes further detention

Exclusions from Article 22(1):

• Court-ordered arrests

• Civil arrests

• Tax payment failure arrests

• Alien deportations

• Must be criminal/quasi-criminal act or public interest prejudicial activity

PART 2: PREVENTIVE DETENTION PROTECTIONS

Applies to: Citizens and aliens

Available under: Preventive detention laws

Safeguards:

1. Duration Limit:

   • Cannot exceed 3 months without advisory board approval (High Court judges)

   • 44th Amendment (1978): Reduced to 2 months (NOT yet enforced)

2. Ground Communication:

   • Grounds must be communicated to detenu

   • Exception: Facts against public interest need not be disclosed

3. Representation Right:

   • Detenu afforded opportunity to make representation against detention

4. Advisory Board:

   • Consists of High Court judges

   • Reports on sufficient cause for extended detention

LEGISLATIVE AUTHORITY

Division of power on preventive detention:

1. Parliament (Exclusive): Defense, foreign affairs, India’s security

2. Parliament & States (Concurrent): State security, public order, supplies/services essential to community

PREVENTIVE DETENTION LAWS (HISTORICAL)

Past Central Laws:

1. Preventive Detention Act, 1950 – Expired 1969

2. Maintenance of Internal Security Act (MISA), 1971 – Repealed 1978

3. Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974 – Still active

4. National Security Act (NSA), 1980 – Still active

5. Prevention of Blackmarketing Act (PBMSECA), 1980

6. Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985 – Repealed 1995

7. Prevention of Illicit Narcotic Drugs Act (PITNDPSA), 1988

8. Prevention of Terrorism Act (POTA), 2002 – Repealed 2004

Unique Features:

• India: Preventive detention integrated in Constitution (unlike USA)

• Britain: Used only during World Wars

• India: Existed even under British rule (Bengal State Prisoners Regulation 1818, Defence of India Act 1939)

3. RIGHT AGAINST EXPLOITATION (ARTICLES 23-24)

A. PROHIBITION OF TRAFFIC IN HUMAN BEINGS AND FORCED LABOUR (ARTICLE 23)

23. Prohibition of traffic in human beings and forced labour.—

(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

(2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

Applicability: All persons (citizens and non-citizens)

Protects against: State action AND private individuals

Prohibitions:

1. Traffic in Human Beings:

   • Selling/buying men, women, children like goods

   • Immoral traffic (prostitution)

   • Devadasi system

   • Slavery

2. Forced Labour:

   • Begar: Compulsory work without remuneration (historical Indian system)

   • Other similar forms: Bonded labour

   • Definition of force: Physical, legal, or economic compulsion

   • Working below minimum wage = forced labour

Violation: Punishable offense under law

SUPPORTING LEGISLATION

1. Immoral Traffic (Prevention) Act, 1956

2. Bonded Labour System (Abolition) Act, 1976

3. Minimum Wages Act, 1948

4. Contract Labour Act, 1970

5. Equal Remuneration Act, 1976

EXCEPTION

State can impose compulsory service for public purposes without payment:

• Military service

• Social service

• Condition: No discrimination on religion, race, caste, class

B. PROHIBITION OF CHILD LABOUR (ARTICLE 24)

24. Prohibition of employment of children in factories, etc.—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.

Prohibition:
Employment of children below 14 years in factories, mines, hazardous activities (construction, railways)

Does NOT prohibit: Harmless/innocent work

CHILD LABOUR LEGISLATION

Key Act:

• Child Labour (Prohibition and Regulation) Act, 1986 – Most important

Supporting Acts:

• Employment of Children Act, 1938

• Factories Act, 1948

• Mines Act, 1952

• Merchant Shipping Act, 1958

• Plantation Labour Act, 1951

• Motor Transport Workers Act, 1951

• Apprentices Act, 1961

• Bidi and Cigar Workers Act, 1966

1996 SUPREME COURT DIRECTIVES

• Establishment of Child Labour Rehabilitation Welfare Fund

• Fine: ₹20,000 per child employed

• Directions for improvement in education, health, nutrition

COMMISSION FOR PROTECTION OF CHILD RIGHTS ACT, 2005

Purpose: Provide establishment and faster justice mechanisms

Composition:

• National Commission

• State Commissions

• Children’s Courts (speedy trials for child offenses/rights violations)

2006 & 2012 BAN INITIATIVES

2006 Government Ban:

• Prohibited child employment as domestic servants/workers in:

  • Hotels, dhabas, restaurants

  • Shops, factories, resorts, spas, tea-shops

• Warning: Prosecution and penal action for employing children below 14

2012 Total Ban Proposal (August):

• Union Cabinet approved complete ban on employment of children below 14 in ALL occupations/processes

• Act to be amended and renamed: Child and Adolescent Labour (Prohibition) Act

2012 AMENDMENT DETAILS

Changes in prohibition:

• Hazardous occupations age raised: 14 to 18 years (mining, etc.)

• Current status (before amendment):

  • Below 14: Prohibited in 18 occupations, 65 processes (hazardous only)

  • Non-hazardous: Merely regulated

Increased Penalties:

• Imprisonment: 1 year → 2 years

• Fine: ₹20,000 → ₹50,000

• Repeated offenses: 3 years imprisonment

• Offenses made cognizable

4. RIGHT TO FREEDOM OF RELIGION (ARTICLES 25-28)

A. FREEDOM OF CONSCIENCE AND RELIGION (ARTICLE 25)

25. Freedom of conscience and free profession, practice and propagation of religion.—

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

Applicability: All persons (citizens and non-citizens)

Four Components:

1. Freedom of Conscience:

   • Inner freedom to shape God/creature relationship as desired

2. Right to Profess:

   • Declaration of religious beliefs/faith openly, freely

3. Right to Practice:

   • Religious worship, rituals, ceremonies

   • Exhibition of beliefs/ideas

4. Right to Propagate:

   • Transmit/disseminate religious beliefs

   • Exposition of religion tenets

   • Does NOT include: Right to convert (forced conversions violate ‘freedom of conscience’)

COVERAGE

• Includes religious doctrines and religious practices/rituals

• Available to all persons

REASONABLE RESTRICTIONS

Restricted by:

• Public order

• Morality

• Health

• Other fundamental rights provisions

STATE POWERS

1. Regulate secular activities associated with religious practice (economic, financial, political, other secular activities)

2. Social welfare and reform: Throw open Hindu religious institutions of public character to all Hindu classes/sections

EXPLANATIONS IN ARTICLE 25

Explanation 1:

• Kirpans (Sikh religious symbols): Wearing/carrying included in Sikh religion profession

Explanation 2:

• In Article 25 context, Hindus include Sikhs, Jains, Buddhists

B. FREEDOM TO MANAGE RELIGIOUS AFFAIRS (ARTICLE 26)

26. Freedom to manage religious affairs.—Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law.

Applicability: Religious denominations or sections (collective freedom)

Rights:

1. Establish and maintain institutions for religious/charitable purposes

2. Manage own affairs in religion matters

3. Own and acquire movable/immovable property

4. Administer property per law

RELIGIOUS DENOMINATION CRITERIA (Supreme Court)

Must satisfy three conditions:

1. Collection of individuals with belief system for spiritual well-being

2. Common organization

3. Distinctive name

Examples:

• Denominations: Ramakrishna Mission, Ananda Marga (within Hinduism)

• Not denomination: Aurobindo Society

RESTRICTIONS

Subject to:

• Public order

• Morality

• Health

• NOT subject to other fundamental rights provisions

C. FREEDOM FROM TAX FOR RELIGIOUS PROMOTION (ARTICLE 27)

27. Freedom as to payment of taxes for promotion of any particular religion.—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.

Provision:
No person compelled to pay taxes for promotion/maintenance of particular religion/denomination

Implication:

• State cannot spend public money on one religion’s promotion

• State must remain religion-neutral (not favor one over others)

• Taxes can promote all religions equally

TAX VS. FEE DISTINCTION

Prohibited (Taxes):

• Compulsory payment for religious promotion

Permitted (Fees):

• For secular administration of religious institutions

• Pilgrim safety/special services

• Religious endowment regulation expenses

• Purpose: Control, not promote religion

D. FREEDOM FROM RELIGIOUS INSTRUCTION (ARTICLE 28)

28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions.—

(1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
(2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.
(3) No person attending any educational institution recognized by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.

Provision:
No religious instruction in institutions wholly maintained by state funds

Exception:

• Institutions administered by state BUT established under endowment/trust requiring religious instruction: Religious instruction permitted

VOLUNTARY ATTENDANCE PROVISION

Applies to:

• Recognized institutions

• State-aided institutions

Rule:

• No person required to attend religious instruction/worship without consent

• Minors: Guardian’s consent needed

FOUR INSTITUTIONAL TYPES

1. Wholly state-maintained: Religious instruction prohibited

2. State-administered but endowment/trust-based: Religious instruction permitted

3. State-recognized: Religious instruction voluntary basis

4. State-aided: Religious instruction voluntary basis

5. CULTURAL AND EDUCATIONAL RIGHTS (ARTICLES 29-30)

A. PROTECTION OF MINORITIES’ LANGUAGE, SCRIPT, CULTURE (ARTICLE 29)

29. Protection of interests of minorities.—(1) 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.
(2) 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, language or any of them.

Applicability: “Any section of citizens” (minorities AND majorities per Supreme Court)

Right:
Section with distinct language, script, or culture shall have right to conserve same

Education Access:

• No citizen denied admission to state-maintained or aided institutions

• Grounds prohibited: Religion, race, caste, language

SCOPE

Provides:

• Rights of groups (cultural protection)

• Individual rights (irrespective of community)

Extends to: Religious minorities AND linguistic minorities

Supreme Court Ruling:

• Not restricted to minorities only

• “Section of citizens” includes minority and majority

Political Speeches Protection:

• Right to agitate for language protection does NOT constitute corrupt practice under Representation of People Act, 1951

B. MINORITIES’ RIGHT TO ESTABLISH EDUCATIONAL INSTITUTIONS (ARTICLE 30)

30. Right of minorities to establish and administer educational institutions.—

(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. (1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), 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 that clause.
(2) 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.

Applicability: Religious or linguistic minorities ONLY

Rights:

1. Right to establish and administer educational institutions of their choice

2. Property protection:

   • Compensation for compulsory acquisition shall NOT restrict/abrogate this right

   • Added by 44th Amendment (1978) when right to property removed as fundamental

3. Non-discrimination in state aid:

   • State shall NOT discriminate against minority institutions in grant disbursement

SCOPE

• Confined to minorities only (not all “sections of citizens”)

• Term ‘minority’ not defined in Constitution

• Includes right to educate children in minority’s own language

MINORITY INSTITUTION TYPES

1. Aided institutions (seek recognition and aid):

   • Subject to state regulatory power (syllabus, standards, discipline, sanitation, staff)

2. Recognized only (seek recognition, not aid):

   • Subject to regulatory power

3. Unrecognized (neither recognition nor aid):

   • Free to administer affairs

   • Subject to general laws (contract, labour, industrial, tax, economic regulations)

6. RIGHT TO CONSTITUTIONAL REMEDIES (ARTICLE 32)

32. Remedies for enforcement of rights conferred by this Part.—

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power 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 this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), 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).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

Nature: Fundamental right to enforce other fundamental rights

Quote (Dr. Ambedkar):

“Without Article 32, Constitution would be nullity. It is the very soul and heart of the Constitution.”

Supreme Court Ruling:

• Article 32 is a ‘basic feature’ of Constitution

• Cannot be abridged/taken away even by amendment

FOUR KEY PROVISIONS

1. Right to Move Supreme Court:

• Guaranteed for enforcement of Fundamental Rights

• Can move by appropriate proceedings

2. Supreme Court Powers:

• Power to issue:

  • Directions

  • Orders

  • Writs: Habeas corpus, mandamus, prohibition, certiorari, quo-warranto

3. Parliament’s Authority:

• Can empower other courts to issue writs

• Without prejudice to Supreme Court powers

• Note: Does NOT include High Courts (already have power under Article 226)

4. Non-Suspension:

• Right cannot be suspended except as provided in Constitution

• Exception: President can suspend during National Emergency (Article 359)

SUPREMACY OF ARTICLE 32

• Original but non-exclusive jurisdiction

• Concurrent with High Court Article 226 jurisdiction

• Aggrieved party option: Move High Court OR Supreme Court directly

Supreme Court Practice:

• Aggrieved party should prefer High Court first if relief available under Article 226

• Alternate remedy availability NOT bar to Article 32 relief (since Article 32 itself is fundamental)

SCOPE LIMITATION

• Only fundamental rights enforceable under Article 32

• Cannot determine constitutionality unless directly involving fundamental rights

• Violation of fundamental right is prerequisite (sine qua non)

WRITS: TYPES AND SCOPE

Origin: English common law “prerogative writs”

Availability:

• Supreme Court (Article 32): Only fundamental rights

• High Courts (Article 226): Fundamental rights AND ordinary legal rights

JURISDICTIONAL DIFFERENCES

WRIT TYPES

1. HABEAS CORPUS

Literal meaning: “Have the body”

Function:

• Order to produce detained person before court

• Court examines detention cause/legality

• Releases if detention illegal

Availability:

• Against public authorities AND private individuals

NOT issued when:

• Detention is lawful

• Contempt of legislature/court proceeding

• Detention by competent court

• Detention outside court jurisdiction

Significance: Bulwark of individual liberty against arbitrary detention

2. MANDAMUS

Literal meaning: “We command”

Function:

• Command to public official to perform failed/refused duty

• Directs activity (as opposed to prohibition’s inactivity)

Available against:

• Public officials

• Public bodies

• Corporations

• Inferior courts

• Tribunals

• Governments

NOT issued against:

• Private individuals/bodies

• Non-statutory departmental instructions

• Discretionary duties (only mandatory)

• Contractual obligations

• President/state governors

• Chief Justice in judicial capacity

3. PROHIBITION

Literal meaning: “To forbid”

Function:

• Higher court prevents lower court/tribunal from exceeding jurisdiction

• Preventive in nature (unlike certiorari’s curative aspect)

Available against:

• Judicial authorities only

• Quasi-judicial authorities

NOT available against:

• Administrative authorities

• Legislative bodies

• Private individuals/bodies

4. CERTIORARI

Literal meaning: “To be certified” or “to be informed”

Function:

• Transfer case from lower court/tribunal to higher court

• Squash lower court/tribunal order

• Curative (retroactive correction) AND preventive

Grounds for issuance:

• Excess of jurisdiction

• Lack of jurisdiction

• Error of law

Evolution (1991 Supreme Court):

• Previously: Only against judicial/quasi-judicial authorities

• Now: Can be issued against administrative authorities affecting individual rights

NOT available against:

• Legislative bodies

• Private individuals/bodies

5. QUO-WARRANTO

Literal meaning: “By what authority or warrant”

Function:

• Enquire into legality of public office claim

• Prevent illegal public office usurpation

Applicability:

• Substantive public offices (permanent, statutory/constitutional creation)

• NOT ministerial offices

• NOT private offices

Unique Feature:

• Can be sought by any interested person (not just aggrieved party)

7. ARMED FORCES AND FUNDAMENTAL RIGHTS (ARTICLE 33)

33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.—Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,—
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of public order; or
(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or
(d) person employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

Parliamentary Power:
Parliament can restrict or abrogate fundamental rights of:

• Armed forces members

• Para-military forces members

• Police forces members

• Intelligence agencies members

• Analogous services

Objective: Ensure proper duty discharge and discipline maintenance

Authority: Parliament only (not state legislatures)

Challengeability: Laws under Article 33 cannot be challenged on fundamental rights grounds

RELEVANT LEGISLATION

• Army Act, 1950

• Navy Act, 1950

• Air Force Act, 1950

• Police Forces (Restriction of Rights) Act, 1966

• Border Security Force Act

RESTRICTIONS IMPOSED

Limitations on:

• Freedom of speech

• Association freedom

• Trade union membership/political association

• Press communication

• Public meeting attendance/demonstrations

COVERAGE

“Armed forces members” includes:

• Combat personnel

• Non-combatant employees (barbers, carpenters, mechanics, cooks, chowkidars, bootmakers, tailors)

COURT MARTIAL EXCLUSION

• Parliamentary laws under Article 33 can exclude court martials (military law tribunals) from Supreme Court/High Court writ jurisdiction for fundamental rights enforcement

8. MARTIAL LAW AND FUNDAMENTAL RIGHTS (ARTICLE 34)

34. Restriction on rights conferred by this Part while martial law is in force in any area.—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.

Definition: “Military rule” imposed in abnormal circumstances for order restoration

Differences from: Military law (applicable to armed forces)

PARLIAMENTARY POWERS

Parliament can indemnify for:

• Government servants

• Any other persons

• Acts in martial law area for order maintenance/restoration

Validation: Parliament can validate sentences, punishments, forfeitures, acts under martial law

Immunity from Challenge:

• Acts of indemnity cannot be challenged on fundamental rights grounds

DISTINGUISHING FEATURES

DECLARATION AND IMPOSITION

Constitutional Status:

• No express provision authorizing martial law declaration

• Implicit in Article 34

Declaration Authority:

• Executive (implied)

Circumstances:

• War, invasion, insurrection, rebellion, riot, violent law resistance

• Abnormal circumstances requiring order restoration

Military Powers:

• Abnormal powers granted to military

• Restriction/regulation of civilian rights

• Punishment of civilians (including death sentences)

MARTIAL LAW VS. NATIONAL EMERGENCY

SUPREME COURT RULING

Martial law declaration does NOT automatically suspend habeas corpus writ

9. EFFECTING CERTAIN FUNDAMENTAL RIGHTS (ARTICLE 35)

35. Legislation to give effect to the provisions of this Part.— Notwithstanding anything in this Constitution,—

(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws—
(i) with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and
(ii) for prescribing punishment for those acts which are declared to be offences under this Part, and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii);

(b) any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters referred to in sub-clause (i) of clause (a) or providing for punishment for any act referred to in sub-clause (ii) of that clause shall, subject to the terms thereof and to any adaptations and modifications that may be made therein under article 372, continue in force until altered or repealed or amended by Parliament.
Explanation.—In this article, the expression “law in force” has the same meaning as in article 372.

Principle:
Uniformity throughout India regarding specific fundamental rights and their violation punishment

Parliamentary Competence:
Power to make laws vests only in Parliament (not state legislatures)

MATTERS REQUIRING PARLIAMENTARY LEGISLATION

1. Residence conditions (Article 16):

• Prescription for employment/appointment conditions in states, union territories

2. Writ-issuing courts (Article 32):

• Empowerment of courts beyond Supreme Court/High Courts

3. Armed forces restrictions (Article 33):

• Fundamental rights restriction/abrogation for services

4. Martial law indemnity (Article 34):

• Indemnification and act validation under martial law

OFFENSES REQUIRING PARLIAMENTARY PUNISHMENT PRESCRIPTION

Parliament must make laws prescribing punishment for:

1. Untouchability offense (Article 17)

2. Human trafficking and forced labour (Article 23)

Mandatory obligation: Parliament obligated to enact such laws

EXISTING LAWS CONTINUATION

Laws in force at Constitution commencement continue until altered, repealed, or amended by Parliament

EXTENT OF PARLIAMENTARY POWER

• Article 35 extends Parliament’s competence to matters possibly in State List

• Ensures national uniformity

PRESENT POSITION OF RIGHT TO PROPERTY

HISTORICAL BACKGROUND

Originally (1950):

• Seventh fundamental right

• Article 19(1)(f): Right to acquire, hold, dispose property

• Article 31: Right against property deprivation

Controversy:

• Most controversial fundamental right

• Led to confrontations between Supreme Court and Parliament

• Resulted in multiple constitutional amendments (1st, 4th, 7th, 25th, 39th, 40th, 42nd)

• Core issue: State compensation obligation for property acquisition

44TH AMENDMENT ACT, 1978 – TRANSFORMATION

Deletion:

• Repealed Article 19(1)(f) and Article 31 from Part III

• Right to property NO LONGER a fundamental right

Replacement:

• Added new Article 300-A in Part XII

• Provides: “No person shall be deprived of property except by authority of law”

• Legal right (not fundamental)

IMPLICATIONS OF LEGAL RIGHT STATUS

1. Regulation: Can be curtailed, abridged, modified by ordinary law (no constitutional amendment needed)

2. Executive protection only: Protects against executive action (not legislative action)

3. Enforcement mechanism: Violation → move High Court (Article 226), not Supreme Court (Article 32)

4. Compensation guarantee: No guaranteed compensation for acquisition/requisition (unlike original Article 31)

EXCEPTIONS: GUARANTEED COMPENSATION CASES

Two cases retaining guaranteed compensation in Part III:

1. Minority Educational Institutions (Article 30):

• State acquisition of minority institution property

• Must provide compensation

2. Agricultural Land (Article 31-A):

• Land held under personal cultivation

• Within statutory ceiling limits

• Compensation at market value mandatory

SAVING ARTICLES (EXCEPTIONS TO FUNDAMENTAL RIGHTS)

EXCEPTIONS TO FUNDAMENTAL RIGHTS

A. ARTICLE 31-A: ACQUISITION OF ESTATES

Scope:
Saves laws from Article 14 (equality) and Article 19 (six freedoms) challenges

Five Law Categories Protected:

1. Estate acquisition by state

2. Property management takeover by state

3. Corporation amalgamation

4. Director/shareholder rights extinguishment/modification

5. Mining lease extinguishment/modification

Domains:

• Agricultural land reforms

• Industry and commerce

Compensation:

• Market value when state acquires personally-cultivated land within ceiling limits

Limitation:

• Law must be reserved for President’s consideration and receive Presidential assent to get Article 31-A immunity

B. ARTICLE 31-B: NINTH SCHEDULE VALIDATION

Scope:
Saves acts/regulations in Ninth Schedule from ANY fundamental rights challenge

Original (1951):

• 13 acts and regulations included

Current (2013):

• 282 acts and regulations

Composition:

• State legislature acts: Land reforms, zamindari abolition

• Parliamentary acts: Other matters

Immunity Scope:

• Wider than Article 31-A

• Protects from ALL fundamental rights (not just Articles 14, 19)

LANDMARK 2007 SUPREME COURT RULING

Significance: Limited Ninth Schedule immunity

Key Holding:

• No blanket immunity from judicial review

• Judicial review is ‘basic feature’ of Constitution

• Cannot be removed via Ninth Schedule placement

Application:

• Laws placed in Ninth Schedule after 24 April 1973 (Kesavananda Bharati date) are challengeable if they:

  • Violate Articles 14, 15, 19, 21 fundamental rights

  • Violate ‘basic structure’ of Constitution

Implication:

• Pre-April 24, 1973 laws: Full immunity

• Post-April 24, 1973 laws: Limited immunity

C. ARTICLE 31-C: DIRECTIVE PRINCIPLES IMPLEMENTATION

Original (25th Amendment, 1971):

1. First provision:

   • Laws implementing Article 39(b) or (c) cannot be void for Article 14/Article 19 contravention

   • Socialistic directive principles protected

2. Second provision:

   • Laws declared as policy-implementing cannot be questioned in court on implementation grounds

   • Declared unconstitutional (Kesavananda Bharati, 1973)

Reasoning: Judicial review is ‘basic feature’; cannot be taken away

42ND AMENDMENT EXTENSION (1976)

Extended Article 31-C:

• Protection extended to ANY directive principle implementation (not just Article 39(b), (c))

Supreme Court Ruling (Minerva Mills, 1980):

• Extension declared unconstitutional

• Violated basic structure principle

CRITICISM OF FUNDAMENTAL RIGHTS

1. Excessive Limitations

• Subject to innumerable exceptions, restrictions, qualifications

• “Constitution grants rights with one hand, takes with other” (Jaspat Roy Kapoor)

• Suggestion: Rename as “Limitations on Fundamental Rights”

2. Lack of Social/Economic Rights

• Primarily political rights focus

• Missing: Right to social security, work, employment, rest, leisure

• Advanced democracies provide these

• Socialistic constitutions (USSR, China) included these

3. Vagueness and Ambiguity

• Stated in vague, indefinite, ambiguous manner

• Undefined terms: “public order,” “minorities,” “reasonable restriction,” “public interest”

• Complex language beyond common understanding

• “Constitution made by lawyers for lawyers” (criticism)

• “Paradise for lawyers” (Sir Ivor Jennings)

4. Lack of Permanency

• Not sacrosanct or immutable

• Parliament can curtail/abolish (e.g., property right deletion, 1978)

• Political tool in majority hands

• ‘Basic structure’ doctrine only check (judicially innovated)

5. Suspension During Emergency

• Suspension except Articles 20, 21 during National Emergency

• Threatens democratic system

• Rights of millions in continuous jeopardy

• Criticism: Rights should exist in all situations

6. Expensive Remedy

• Judicial enforcement costly

• Hinders common people from court access

• Primarily benefits rich section of society

7. Preventive Detention (Article 22)

• Undermines fundamental rights efficacy

• Grants arbitrary state powers

• Negates individual liberty

• Suggests Constitution favors state rights over individual rights

• Unique to India among democracies

8. Inconsistent Philosophy

• Not product of consistent philosophical principle (Sir Ivor Jennings)

• Interpretive difficulty for courts

• Creates challenges for Supreme Court and High Courts

SIGNIFICANCE OF FUNDAMENTAL RIGHTS

Despite criticisms, fundamental rights are significant for:

1. Democratic bedrock of the system

2. Material and moral protection of individuals

3. Bulwark of individual liberty

4. Rule of law establishment

5. Minority and weaker section interests protection

6. Secular fabric strengthening of Indian state

7. Government absoluteness check

8. Social equality and justice foundation

9. Individual dignity and respect assurance

10. Political and administrative participation facilitation

OTHER CONSTITUTIONAL RIGHTS (OUTSIDE PART III)

Non-Fundamental Rights:

1. Article 265 (Part XII): No tax without authority of law

2. Article 300-A (Part XII): No property deprivation without law authority

3. Article 301 (Part XIII): Free trade, commerce, intercourse throughout India

4. Article 326 (Part XV): Adult suffrage for elections

Distinction:

• Also justiciable

• NOT enforceable via Article 32 (Supreme Court direct recourse)

• Enforcement: High Court ordinary suit or Article 226 writ jurisdiction

QUICK REFERENCE TABLE: FUNDAMENTAL RIGHTS AT A GLANCE

KEY SUPREME COURT DOCTRINES

1. Basic Structure Doctrine (Kesavananda Bharati, 1973)

• Constitution amendments must respect ‘basic features’

• Protects fundamental rights from amendment

• Judicial review cannot be abrogated

2. Due Process of Law (Menaka, 1978)

• Expanded Article 21 interpretation

• Laws must be reasonable, fair, just

• Extended protection to legislative action

3. Creamy Layer Concept (Mandal, 1992)

• Advanced OBC sections excluded from reservation

• Ensures backward class benefits reach truly deserving

4. Ninth Schedule Limitation (2007)

• No blanket immunity for Ninth Schedule laws

• Post-1973 laws subject to fundamental rights challenge

RECENT UPDATES (2024)

RTE Act Amendment (December 2024)

• Detention policy for Classes 5 and 8 in central government schools

• Failed students: Re-examination opportunity within 2 months

• Targeted interventions and remedial instruction

• Applies to Union Territories without legislatures

Indian Polity