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Fundamental rights under the Indian Constitution

July 19, 2024

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This article is written by R. Sai Gayatri and further updated by Sakshi Kuthari. This article discusses in detail fundamental rights (Articles 12 to 35) that are enshrined under Part III of the Indian Constitution. It also provides insight into landmark case laws relating to fundamental rights.

Table of Contents

Introduction

The enforcement of the fundamental rights under the Indian Constitution is a matter of importance in modern constitutional jurisprudence. Its incorporation as enforceable rights in the modern constitutional documents and internationally recognised Charter of Human Rights emanates from the doctrine of natural law and natural rights. The need for enunciating fundamental rights under the Indian Constitution might have been felt due to various reasons. During the British rule in India, various human rights of Indians were violated by the rulers. Therefore, the framers of the Constitution might have had a positive attitude towards inserting provisions for the enforcement of fundamental rights. Secondly, Indian society has a number of religious, cultural and linguistic groups, and it is necessary to provide fundamental rights to each of them for a sense of security and confidence. Thirdly, the people of India should have certain rights that may be enforced against the government’s arbitrary actions. The fundamental rights enshrined in the Constitution are in consonance with modern democratic principles and aim to establish a “Government of law and not of man”. Fundamental rights originate from the Preamble. The people of India give the whole Constitution to the people of India. For this, they specifically mentioned their objective of constituting this Constitution in the Preamble, i.e. Justice, Liberty, Equality and Fraternity. These objectives are the roots of Fundamental rights. Since India opted to be a democratic republic, we incorporated fundamental rights to achieve our objective as enshrined in the Preamble.

Others are ancillary reasons; the actual reason, as can be inferred from Dr BR Ambedkar’s speech during Constituent Assembly debates on fundamental rights and the Hon’ble Supreme Court’s judgment in Kesavananda Bharti and Maneka Gandhi and various other cases, is that the constitution was given by the people to the people for constituting India into a sovereign, socialist, secular, democratic, republic and for achieving this objective, we need fundamental rights. It guarantees basic civil rights, provides safeguards for minorities, prohibits discrimination and protects the religious freedom and cultural rights of various groups of people. These rights cannot be infringed by any statutory provisions but reasonable restrictions can be imposed. Any law which abridges such rights is considered as a violation of the basic structure doctrine. Hence, this article discusses in detail all the fundamental rights under the Indian Constitution and the landmark judgments in relation to the same.

Origin of fundamental rights

The origin of fundamental rights can be traced to the concept of human rights. The natural law philosophers, such as Locke and Rousseau, philosophised over the theory that man has certain essential, basic, natural and inalienable rights or freedoms. The concept of human rights protects every individual against the excesses of the State. It attempts to protect individuals from oppression and injustice. The idea of guaranteeing these human rights is to ensure that everyone may have a minimum guaranteed freedom.

In 1215, the English people required an affirmation from King John for ancient liberties. The Magna Carta is the first written document relating to the fundamental rights of citizens. Afterwards, in the year 1689, the Bill of Rights, which includes all the rights and liberties of the English people, was introduced. The concept of fundamental rights can be traced to the U.S. Constitution drafted in 1787. The U.S. Constitution was the first modern Constitution to give shape to the concept of human rights by putting them into the Constitution and making them justiciable and enforceable through the instrumentality of the courts. In France, the Declaration of Rights of Man and the Citizens (1789) declared the natural, inalienable and sacred rights of man. Thus, the framers of the Indian Constitution took inspiration from the US Constitution and incorporated a full Chapter in the Constitution of India dealing with fundamental rights and their enforcement.

Classification of fundamental rights

In the Indian Constitution, the fundamental rights are enshrined in Part III of the Indian Constitution and categorised into six heads:

Right to equality from Articles 14 to 18;
Right to freedom from Articles 19 to 22;
Right against exploitation from Articles 23 and 24;
Right to freedom of religion from Articles 25 to 28;
Cultural and educational rights from Articles 29 and 30;
The right to constitutional remedies is governed by Articles 32 to 35.

It is pertinent to note that the right to property was one of the fundamental rights in the Constitution. However, this right was repealed by the Constitution (Forty-fourth) Amendment Act, 1978. Being under the scope of fundamental rights, the right to property was acting as an obstacle to achieving the goal of property distribution, equality and socialism. Thus, the right to property is now a constitutional right under Article 300A and not a fundamental right.

Salient features of fundamental rights

The following are a few features of the fundamental rights enshrined in the Constitution of India –

The Indian Constitution guarantees and protects fundamental rights.
The Parliament has the power and authority to restrict fundamental rights on reasonable grounds. However, such restrictions must be reasonable and not arbitrary. The grounds based on which the fundamental rights are restricted by the parliament will be reviewed by the judiciary for reasonability. Therefore, fundamental rights are neither absolute nor sacrosanct.
Fundamental Rights can be suspended in the case of national emergencies. However, the rights guaranteed under Articles 20 and 21 will still be applicable. In the case of an emergency, fundamental rights can be restricted in any area within the Indian territory.
The Constitution of India enables an individual to move directly to the Supreme Court of India for the enforcement of their fundamental right in case they are violated or restricted. It is a negative obligation imposed on the State not to interfere with the inherent liberty of the individual. The fundamental rights are thus justifiable.
The fundamental rights set out the principles of the rule of law, emphasising justice, equity and freedom.
The rights of minorities are also protected under Part III of the Indian Constitution by making a special provision for any citizen or section of citizens having a distinct language, script or culture.

Importance of fundamental rights

Fundamental rights under Part III of the Indian Constitution act as the foundation that upholds the democratic system and justice in India. They establish the essential conditions for an individual’s material and moral protection, ensuring social justice and equality. They also defend the rights of minorities and other weaker sections of society. Fundamental rights also ensure individual liberty. These rights establish the rule of law thereby keeping a check on the arbitrariness of the government’s authority. They impose negative obligations on the State not to infringe individual liberty and freedom of the people.

Under Part IV of the Indian Constitution, the Directive Principles of State Policy (DPSP) are provided. These principles set out the aims and objectives for achieving a welfare state and it can only be achieved if the State endeavours to implement with a high sense of moral duty. It lays down certain economic and social policies to be followed by the Central and State Governments. It is an obligation of the State to take positive action for the welfare of the people of India and attain economic democracy.

By the Constitution (Forty-second Amendment Act, 1976, Part IV-A was added. It provides fundamental duties for every citizen of India. While Part III of the Indian Constitution confers certain fundamental rights to every citizen, Part IV-A serves as a reminder to the citizens of India to observe certain basic norms of conduct and behaviour in the democratic society.

All of these, namely Part III, Part IV, and Part IV-A, altogether constitute and concretise the goals of justice, liberty, fraternity and dignity of individuals and fulfil the objectives of the Preamble to the Constitution.

Amendability of fundamental rights

The Supreme Court, in the case of Kesavananda Bharati v. State of Kerala (1974), held that the Parliament can amend any part of the Constitution, including the fundamental rights, subject to the ‘doctrine of basic structure’ of the Constitution.

The Supreme Court has neither specifically defined what entails the basic structure nor did it mention any exhaustive list regarding the contents of the basic structure of the Constitution. The Apex Court, however, stated that only additions can be made to the basic structure, and no deletions will be allowed to be made. The Supreme Court, in a catena of judgements, has held that the following provisions are a part of the basic structure of the Constitution –

Sovereignty of India;
Democracy;
Secularism;
Republic;
Free and fair elections;
Judicial review, etc.

In Minerva Mills v. Union of India (1980), the Hon’ble Supreme Court held that the basic structure of the Indian Constitution is inviolable and cannot be amended in a way to destroy its basic features. It reiterated that the basic structure doctrine includes the following principles:

Supremacy of the Constitution;
Democratic principles;
Rule of law;
Protection of fundamental rights.

Article 12 of the Indian Constitution : definition of State

The fundamental rights under the Indian Constitution are provided to the people of India. These rights can be claimed against the State and its instrumentalities and not against private bodies. Hence, a provision defining the term “State” was inserted into the Constitution. Article 12 of the Indian Constitution defines an inclusive definition of the term of the ‘State’. It is important to determine what bodies fall under the definition of the term ‘State’ so as to determine on whom the responsibility has to be placed for the infringement of Fundamental Rights.

Within Part III of the Indian Constitution, the expression ‘State’ appears across various articles. It is defined under Article 12 of the Indian Constitution, which states that the term ‘State’ includes the following entities:

The Government and Parliament of India, which includes the executive and legislature of the Union;
The Government and Legislature of each State, comprising the executive and legislature of each state;
All local or other authorities within the territory of India; and
All local and other authorities under the control of the Government of India.

A question arose before the courts regarding the criteria to ascertain whether a body, apart from the above-mentioned authorities, qualifies as an agency or instrumentality of the State. In the case of Sukhdev v. Bhagatram (1975), the Hon’ble Supreme Court held that a body could be deemed an ‘authority’ under Article 12 if it functions as an agency or instrumentality of the government. It does not matter whether it is a statutory corporation, a government company or even a registered society.

In order to determine whether a body is an agency or instrumentality of the State, in the case of Ramananda Dayananda Shetty v. The International Airport Authority of India (1979), the Hon’ble Supreme Court established the following criteria for determining whether body is an agency or instrumentality of a state:

Whether the State holds the financial resources for the body;
Whether the State exercises deep and pervasive control over the body;
Whether the functions performed by the body are of public importance and are intrinsically associated with the governmental functions;
Whether a department of the government is transferred to that body or corporation and passes this test, then it is a state under ‘other authority’;
Whether the corporation possesses a monopoly granted or safeguarded by the State.

This above-mentioned case was affirmed by the Hon’ble Supreme Court in Ajay Hasia v. Khalid Mujib (1980). In this case, several factors were laid down in order to determine whether an entity can be regarded as an agent or instrumentality of the state. Those factors are as follows:

Whether the corporation’s share capital is held by the Government or not;
Whether all the expenses of the corporation are covered by the Government’s financial assistance or not;
Whether the corporation has a monopoly status or is protected by the State;
Whether there is a strict governmental control over the corporation;
Whether the corporations act for the public good and are closely related to the governmental functions;
Whether a government department has been transferred to the corporation.

Article 13 of the Indian Constitution : laws contradictory to fundamental rights

Article 13 is significant because it protects fundamental rights from arbitrary state actions. It is a protective provision, an index of the importance, as was prioritised by the framers of the Constitution. This provision ensures that the government does not infringe upon fundamental rights through legislation or administrative action. Article 13(1) declares pre-constitutional laws void to the extent they are in conflict with the fundamental rights from the date of enforcement of the Indian Constitution, i.e., prospective application. Article 13(2) safeguards the supremacy of the Indian Constitution concerning fundamental rights. It restricts the State from enacting laws that violate or curtail fundamental rights. Any such legislation is deemed void from its inception to the extent of the violation, i.e., retrospective application. Therefore, Article 13(2) ensures that neither legislative nor administrative actions by the State can infringe upon fundamental rights.

Power of judicial review

Article 13 entrusts the judiciary with the role of safeguarding, defending and interpreting the Fundamental Rights. It is incumbent upon the courts to examine each law with respect to Fundamental Rights. Article 13 grants the courts the power and duty to invalidate any law that contradicts a fundamental right. In Kesavananda Bharti v. State of Kerala (1973), the Hon’ble Supreme Court determined the protective role of all the Courts in India. It declared judicial review as a ‘basic’ feature of the Constitution of India. This means that the power of judicial review is only with the court, and it cannot be taken away by any subsequent Constitutional Amendment.

Doctrine of severability

The doctrine of severability addresses the situation where a portion of a statute is deemed unconstitutional, raising the question of whether the entire statute should be invalidated or only the unconstitutional portion of the statute. To resolve this complication, the Hon’ble Supreme Court in State of Bombay v. F.N. Balsara (1951) formulated this doctrine. It held that if the offending provision can be distinctly separated from the constitutional portion of the statute, only the offending part should be declared void, leaving the rest of the statute intact. However, there is one exception to this doctrine. Suppose the valid portion of the statute is intricately intertwined with the invalid part of the statute that cannot be separated without leaving an incomplete or significantly mixed remainder. In that case, the Courts will have the authority to invalidate the entire statute. The primary criterion for determining this is whether what remains after the removal of the invalid part is so inseparably linked that it cannot stand independently.

The Hon’ble Supreme Court, in the case of R.M.D.C. v. Union of India (1957), determined matters of ‘severability’ relate to substance rather than form. The Hon’ble Court ruled that in ascertaining the legislative intent on the question of severability, the historical background, purpose, title, and Preamble of the legislation can be taken into account.

Doctrine of eclipse

This doctrine operates under the premise that any law violating the Fundamental Rights is not void but only becomes unenforceable, meaning it remains in a dormant condition. The Hon’ble Supreme Court in Bhikaji Naraian v. State of Madhya Pradesh (1955) determined that a law infringing upon fundamental rights is overshadowed by those rights, rendering it dormant but not nullified. These laws are not completely removed from the books of law; they exist solely for past transactions and for enforcing rights and liabilities established before the Constitution came into effect. They can be revived by any subsequent amendment, whether in the legislation or the constitution itself, by removing the inconsistency.

Doctrine of waiver

This doctrine means that a person has a right to give up a right guaranteed under the Indian Constitution, or any legislation for that matter. The ‘doctrine of waiver’ operates on the assumption that a man is the best judge of his interests under any legal liability and that he knows the consequences of wilfully giving up his right. But this doctrine is inapplicable to fundamental rights enshrined under the Indian Constitution. In the case of Behram v. State of Bombay (1955), it was ruled that an accused person cannot voluntarily relinquish their Fundamental Rights in exchange for a conviction. The Hon’ble Supreme Court in Basheshar Nath v. CIT (1959) held that it is not open to a citizen to waive any of his fundamental rights conferred by Part III of the Indian Constitution. It cannot be done as, unlike various other legal rights, fundamental rights are provided to people as a whole and not individually. This can be inferred from the drafting of fundamental rights. As per the doctrine of waiver, only rights which are available individually can be waived off. Rights which are provided to a class of people or to the general public in no case can be waived off.

Doctrine of lifting the veil

This doctrine is utilised to assess the constitutional validity of an Act concerning any alleged violation of fundamental rights. It is necessary to examine the true nature, character, impact, history, purpose, surrounding circumstances and conditions of an Act in question. It should also consider the mischief it aims to address, the remedy intended to alleviate the issue identified by the legislature, and the underlying rationale for the remedy.

Right to equality (Articles 14-18 of the Indian Constitution)

Article 14 – Equality before law and equal protection of laws

Article 14 of the Indian Constitution secures equality of status and opportunity to all individuals, whether citizens or non-citizens, as outlined in the Preamble to our Constitution. In M. Nagraj v. Union of India (2006), ‘equality’ was declared as a fundamental and essential feature of the Constitution of India. This judgement turned out beneficial in understanding the principle of promissory estoppel, non-arbitrariness, and principles of natural justice and also for abstaining from unreasonableness, arbitrary state actions etc. This Article gives equal treatment to all individuals in terms of both privileges granted and liabilities imposed. ‘Equality before law’ ensures the absence of special privileges, where all individuals are subject to the same laws without favouritism. Dr. Jennings better explained this, suggesting that the law should treat equals equally and administer justice impartially, distinguishing between similar and dissimilar situations. On the other hand, ‘equal protection of law’ is a positive notion signifying fair treatment under similar circumstances.

Equality before the law and the rule of law

Equality before the law has a negative connotation and was borrowed from the UK. In essence, it can be said that “likes should be treated alike”. Equality before the law corresponds to Prof. Dicey’s rule of law. Professor Dicey of England calls the guarantee of equality before law as the rule of law. According to him, the ‘rule of law’ means that no man is above the law, regardless of his rank or circumstances. They are within the court’s jurisdiction. He gave three meanings to the concept of the rule of law, which are as follows:

Lack of Arbitrary Authority: It means that there is a complete supremacy of law over the arbitrary authority of the government. In simpler terms, an individual may incur punishment for violating the law but cannot be punished for any other reason.
Equality before the law: This signifies that every individual is subject to the law, except for the monarch, who enjoys immunity from prosecution. In England, irrespective of whether one is a State official or a private individual, they are obligated to adhere to the same law.
The Constitution emanates from the country’s ordinary law: This signifies that individual rights do not originate from the regulations delineated and enforced by the courts.

In India, the first and second facets are only applicable. The third aspect does not apply in India because the source of rights for Indian citizens is the Indian Constitution. It holds the highest authority within the nation, and all legislative enactments must align with constitutional provisions.

Exceptions to the rule of law

Rule of law, being an absolute principle under Article 14 of the Indian Constitution, holds certain exceptions, which are as follows:

Firstly, ‘equality before law’ does not imply that the authority of the private individual equals that of public officials. It is a general rule that no private person has the power to arrest, while a police officer has the power to arrest.
Secondly, the rule of law does not preclude specific groups from being governed by distinct regulations. For instance, armed forces personnel abide by military regulations, and medical professionals are governed by the Medical Council of India, granting them immunity from ordinary court jurisdiction.
Thirdly, certain statutes grant ministers and other executive bodies broad discretionary powers. Ministers may grant discretion ‘as they deem appropriate’ or ‘if they are satisfied’.

Equal Protection of Laws

The concept of equal protection of law means laws should apply equally to everyone. That is, laws should treat equals equally. It only means that all persons under similar circumstances must be treated alike, subject to the rights conferred and liabilities imposed. This protection is available to citizens, non-citizens, and natural and legal persons. In Chiranjit Lal Chowdhuri v. Union of India (1951), the Hon’ble Supreme Court held that the guarantee of equal protection of laws means the protection of equal laws. It forbids class legislation but does not forbid classification based upon reasonable grounds of distinction.

Article 15 of the Indian Constitution : prohibition of discrimination

The right guaranteed under Article 15 of the Indian Constitution extends exclusively to Indian citizens. There is a prohibition on the State under Article 15(1) from discriminating on the basis of religion, race, caste, sex, or place of birth.

Article 15(2) specifies and implements the broader prohibition outlined in Article 15(1) concerning access to shops, public restaurants, hotels and public entertainment venues, as well as the utilisation of wells, tanks, bathing ghats, roads, etc. This provision restricts the State and private individuals from involving in any type of discrimination. In Arumugha v. Narayans (1958), it was held that if a group of individuals asserts exclusive access to a public well, they must establish that the well was specifically dedicated for their use alone and not intended for the use of the public in general.

Clause (3) of Article 15 constitutes an exception to Articles 15(1) and 15(2). The State is not restricted from implementing “special provisions” for women and children. This exemption is due to the physical characteristics of women and the responsibilities of motherhood, which put them at a disadvantage in terms of economic sustenance. The legislature has enacted the Protection of Women from Sexual Harassment Act, 2013, Protection of Children from Sexual Offences Act, 2012, and Juvenile Justice Act, 2015, etc. for this purpose.

Article 15(4) also stands as an exception to the provisions delineated in Articles 15(1) and (2). By the Constitution (First Amendment) Act in the year 1951, this provision was added. It provides that the State is not restrained from enacting specific measures aimed at the progress of any socially and educationally disadvantaged group of citizens or for the Scheduled Castes and the Scheduled Tribes.

Clause (5) of Article 15, was introduced in the year 2005 through the Constitution (Ninety-third Amendment) Act. It allows the State to implement different measures for the upliftment of socially and educationally disadvantaged segments of society or for the Scheduled Castes and the Scheduled Tribes, particularly in relation to their admissions to educational institutions, whether public or private, except educational institutions for minorities mentioned in Article 30(1).

Clause (6) of Article 15 was added by the Constituion (One Hundred and Third Amendment) Act, 2019. It guarantees a reservation of 10% in providing education to Economically Weaker Sections (EWS) of the society among those not included in community-based reservation categories.

Article 16 of the Indian Constitution : equal opportunity in case of public employment

Clause (1) of Article 16 provides an equality of opportunity to citizens of India in matters of employment or appointment in any post under the State.

Clause (2) of Article 16 expands on the principles laid down in Article 16(1). It also prevents discrimination in employment on the basis of residence and descent. As citizenship is common in India, the residence of the citizen is not a prerequisite for serving in any State. Article 16(2) has a more limited scope compared to Article 15(1) because Article 16(1) focuses specifically on employment under the State, covering services provided by both the Central and State Governments and their associated entities.

Clause (3) of Article 16 constitutes an extension to Articles 16(1) and 16(2). Under this sub-clause, it is provided that the Parliament may make a law that prescribes the requirement of residing in a State or Union Territory as a necessary condition for being eligible for certain categories of appointments or posts. This provision allows a degree of flexibility, acknowledging that there may be compelling reasons to limit certain positions within a State to its residents. Article 16(3) acts as a guard to prevent misuse of Article 16(1) and (2).

Article 16(4) provides for reserving the appointments in favour of citizens belonging to ‘backward classes’, as determined by the State. The State should be of the opinion that the ‘backward classes’ of citizens are not represented proportionately in the public services. Here, the word ‘State’ means both the Central and State Governments and their instrumentalities. In Indra Sawhney v. Union of India (1992), the Hon’ble Supreme Court clarified that Article 16(1) does permit reasonable classification for ensuring the attainment of the equality of opportunity assured by it. For ensuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate inequality. Article 16(4) is an instance of such classification, put into place the matter beyond controversy. The “backward class of citizens” are classified as a separate category deserving special treatment in the nature of reservation of appointments/posts in the services of the State. Accordingly, it was held that Clause (4) of Article 16 is not an exception to Clause (1) of Article 16. It is an instance of classification implicit in and permitted by clause (1). It is a provision which must be read along with and in harmony with clause (1). Indeed, even without Clause (4), it would have been permissible for the State to have evolved such a classification and made a provision for the reservation of appointments/posts in their favour. Clause (4) merely puts the matter beyond any doubt in specific terms. Under this sub-clause, the State is authorised to identify citizens for preferential treatment in employment. However, to establish such preferential treatment in line with the mandate of Article 16(1), the State cannot rely solely on any of the factors listed in Article 16(1), such as religion, caste, etc., as the exclusive basis for such classification.

Clause (4A) of Article 16 was added by the Constitution (Seventy-seventh Amendment) Act in 1995. It provides that the State is authorised to implement any measures for reservation in promotions for Scheduled Castes and Scheduled Tribes if it is of the opinion that their representation in State services to be insufficient. However, for this, Sates have to show sufficient quantifiable data in this regard. Until now, only Karnataka could provide such quantifiable data, and no other state could provide such data. This is the reason why there is no right to promotion.

Clause (4B) of Article 16, added by the Constitution (Eighty-first Amendment) Act in 2001. It provides that the vacancies that could not be filled in the preceding year or years, are treated as separate classes of vacancies. Those vacancies would be filled in the next succeeding years and are not considered altogether with the vacancies of the preceding year or years, even if they exceed the 50% limit.

Clause (5) of Article 16 provides that a law may specify that individuals holding positions relating to functions of a religious or denominational institution or serving as members of its governing body must follow the specific religion or denomination.

Clause (6) of Article 16 was added by the Constitution (One hundred and Third Amendment) Act in the year 2019. It was introduced to provide a ten percent reservation of positions for economically disadvantaged sections of the population, in addition to the prevailing reservation in each category.

Article 17 of the Indian Constitution : abolition of untouchability

It is stated under Article 17 that the long-lasting practice of untouchability is completely terminated. It also restricts practices relating to it in any form. To enforce the abolition of untouchability, the Parliament passed the Protection of Civil Rights Act, 1955, which outlines punishments for engaging in untouchability.

Article 18 of the Indian Constitution : abolition of titles

Under Article 18(1), there is a prohibition upon the State from granting any ‘title’ except for military or academic distinctions.

Under Clause (2) of Article 18, there is a prohibition on Indian citizens from receiving any title from a foreign government.

Under Article 18(3), it is provided that, without the consent of the President, any foreigner holding any office of profit or trust under the State cannot accept any title from any foreign State. From this provision, loyalty is ensured to the Government of India.

Under Article 18(4), it is specified that, without the President’s consent, no person holding an office of profit under the State may accept any gift, salary, or position from or under any foreign state.

Right to Freedom (Articles 19-22 of the Indian Constitution)

Article 19 – Protection of certain rights regarding freedom of speech, etc

Article 19 of the Indian Constitution guarantees the following six freedoms:

Freedom of speech and expression

Freedom of speech and expression is deemed important for the effective functioning of the democratic system. Under Article 19(1)(a), the right to ‘freedom of speech and expression’ is provided to all citizens. Article 19(2) allows for reasonable restrictions on exercising this right in the interests of the security and sovereignty of India. Any limitation on this right, which does not adhere to the conditions laid down in Article 19(2), cannot be deemed legitimate.

Freedom to form assembly

Article 19(1)(b) guarantees the citizens the right to assemble peacefully but without any arms. However, according to Article 19(3), the State can enact any law that imposes reasonable restrictions on practising this fundamental right on grounds of public order, sovereignty and integrity of India. There exists a shared ground between Articles 19(1)(a) and 19(1)(b). Demonstrations, processions, and meetings covered by Article 19(1)(a) also come under Article 19(1)(b) as assemblies. Therefore, the same principles apply under both the Articles. In T.K. Rangarajan v. State of Tamil Nadu (2003), the Hon’ble Supreme Court held that the ‘right to strike’ is not available under either of these Articles.

Freedom of forming Associations

Article 19(1)(c) provides to the Indian citizens the freedom to form an association, union or cooperative societies. ‘Cooperative societies’ was added by the Constitution (Ninety-seventh Amendment) Act, 2011. Article 19(4), however, provides that the State is empowered to impose reasonable restrictions on the right of freedom to form associations and unions in the interests of public order, morality, sovereignty and integrity of India.

The essence of democracy lies in the right to form associations. If this right had not existed, political parties could not have been formed, and it would have been impossible to establish a democratic form of government which is of a parliamentary nature.

Freedom to move and reside in India

Article 19(1)(d) guarantees every citizen of India the liberty to travel freely in the territory of India. On the other hand, Article 19(1)(e) provides the right to an Indian citizen to reside and settle anywhere in India. There is a discretion upon the State under Article 19(5) to impose reasonable restrictions on these freedoms through legislation aiming to safeguard the interests of Scheduled Tribes. This right affords Indian citizens the freedom to move freely between states or within a single state. The rights under Articles 19(1)(d) and 19(1)(e) are inter-connected, as both are affected simultaneously when a person is asked to leave a particular place.

Right to carry on trade and commerce

Under Article 19(1)(g), a guarantee is provided to every Indian citizen, that is, the freedom to practice any profession, occupation, trade, or business. The State is empowered under Article 19(6) to pass laws to put reasonable restrictions on exercising this right by prescribing professional and technical qualifications and requirements.

Article 20 of the Indian Constitution : protection of citizens against conviction

Article 20(1) : Protection from ex-post-facto law

The protection against an ex-post-facto law provides a safeguard against conviction for an act done or omission which was not an offence under the existing law at the time of commission and also against an enhanced punishment for the same act for which the punishment was different at the time of commission of the act. Article 20(1) has two components. The first part provides that no individual can be convicted of an offence except for violating a law in effect at the time the act in question was committed. An accused is always convicted for contravening a law in effect when the act occurred. Consequently, a law enacted subsequently that criminalises an act performed earlier (which was not an offence when committed) does not render the accused liable for conviction under it. If an act is not unlawful at the time of its commission, a future law cannot render it so.

The second part of Article 20(1) grants immunity to an accused from a penalty greater than what could have been imposed at the time of committing the offence. For the prosecution of an accused regarding an offence, the essential elements constituting the offence must exist at the time the alleged crime is committed. Therefore, an accused person cannot be subjected to harsher punishment under an ex-post-facto law than what would have applied at the time of committing the offence. While Article 20(1) pertains to punishment for criminal offences, it does not prohibit the imposition of retroactive civil liability.

Article 20(2): Principle of double jeopardy

From the well-established English Common Law maxim, nemo debet bis vexari pro una et eadem causa, the foundation of this principle can be traced. This maxim means that “a person should not be put twice in jeopardy for the same offence.” Article 20(2) also provides that once a person is convicted of an offence by a court of competent jurisdiction, the conviction acts as a barrier to any subsequent criminal proceedings against them for the same offence. The fundamental aim of this principle is to ensure that no person is subjected to punishment twice for one and the same offence.

Article 20(3) : Prohibition against self-incrimination

The fundamental principle of criminal jurisprudence against self-incrimination has been uplifted to a constitutional rule in Article 20(3). This principle encompasses the following characteristics:

There is a presumption of innocence upon the accused until proven guilty;
The burden of proof lies upon the prosecution to establish the guilt of the accused;
The accused has a right to refrain from making any statement against their will.

This proposition ensures the preservation of individual privacy and adherence to civilised standards in the administration of criminal justice. It expressly states that no accused person shall be compelled to testify against themselves. In Raja Narayanlal Bansilal v. Maneck Phioze Mistry (1960), the following essentials were laid down as a requisite for the application of this doctrine:

It can only be availed by an individual who is ‘accused of an offence’;
It should safeguard the accused against ‘compulsion’ to provide testimony’;
It should safeguard the accused against such ‘compulsion’ resulting in the accused providing evidence ‘against themselves’.

To invoke Article 20(3), all three components must coexist for the protection of an accused person.

In the case of State of Bombay v. Kathi Kalu Oghad & Ors. (1961), the Supreme Court stated that the mere fact that the accused was in police custody at the time of making the statement would not make a presumption with regard to compulsion for making the statement.

In the case of Laxmipat Choraria v. State of Maharashtra (1968), the Supreme Court stated that, if the accused volunteers evidence against himself, then also Article 20(3) is not violated since Article 20(3) gives only a privilege and the accused is free to waive it if he wants to.

In the case of Selvi v. State of Karnataka (2010), the Supreme Court held that compulsory administration of certain scientific techniques, such as narco analysis, polygraph examination, and the Brain Electrical Activation Profile (BEAP) bear a ‘testimonial’ character and, therefore, triggers the protection under Article 20(3) of the Constitution.

Article 21 of the Indian Constitution : Right to Life

It is provided under Article 21 of the Indian Constitution that no individual, except according to the procedure established by the law of the land, is to be deprived of their right to life or personal liberty. In the case of Maneka Gandhi v. Union of India (1978), several propositions to enrich the meaning of Article 21 were laid down. They are as follows:

A nexus exists between Articles 14, 19 and 21 of the Indian Constitution. This implies that any law which provides a procedure for depriving a person of his/her personal liberty, must comply with the requisites of Articles 14, 19 and Article 21.
‘Personal liberty’ under Article 21 should not be narrowly interpreted to exclude attributes of personal liberty outlined in Article 19;
Re-interpretation of ‘procedure established by law’ used in Article 21. The procedure must be fair and reasonable;
Articles 14, 19 and 21 are not mutually exclusive, but rather inter-connected.

‘Reasonableness’ is a fundamental aspect of equality or non-arbitrariness. Under Article 21, the procedure described should always pass the reasonableness test and be in conformity with Article 14. It must not be arbitrary, fanciful or oppressive. It should be just, fair and reasonable.

Article 21A of the Indian Constitution : Right to education

The Constitution (Eighty-sixth Amendment) Act, 2002, introduced Article 21-A. It ensures education for all children aged six to fourteen years. It made a mandate upon the Government to enact central legislation to implement the constitutional amendment. To bring into effect this right, the Right of Children to Compulsory Education Act, 2009, was passed by the Parliament.

Article 22 of the Indian Constitution : protection against arrest and detention

Article 22 provides certain basic human rights for individuals who are arrested. Clauses (1) and (2) of Article 22 offer four protections for arrested persons:

The arrested person has a right to be informed of the grounds of arrest before being detained in custody;
It is the right of an arrested person to take consultation and get a legal practitioner of his choice for defence;
It is required that the arrested person, whenever arrested, should be brought before the nearest Magistrate within twenty-four hours, excluding travel time;
The arrested person has a right not to be detained in custody beyond a period of twenty-four hours without the permission of the Magistrate.

Article 22(3) provides that Articles 22(1) and 22(2) do not apply to alien enemies and individuals who are arrested and detained under laws permitting preventive detention.

However, an alien enemy may seek protection under Clauses (4) to (7) of Article 22 if detained under a law allowing preventive detention, subject to the legislation enacted by Parliament. These clauses provide safeguards and establish the minimum procedures for cases of preventive detention. If a preventive detention law violates any of these safeguards, it would be deemed invalid as it infringes upon the detainee’s fundamental rights.

Right against exploitation (Article 23-24 of the Indian Constitution)

Article 23 of the Indian Constitution : prohibition of traffic in human beings and forced labour

Article 23(1) of the Indian Constitution safeguards individuals against both the State’s actions and those of private persons. It mandates the State to take proactive measures to eradicate practices such as human trafficking, begar and different types of bonded labour. It also expressly prohibits ‘bonded labour’ as a type of forced labour within this provision. This protection extends to both citizens and non-citizens of India.

Article 23(2) allows the State to enforce compulsory services for public purposes but mandates that such enforcement should not discriminate based solely on religion, race, caste, class or any combination thereof.

Article 24 of the Indian Constitution : prohibition of employment of children in factories, etc

Under Article 24 of the Indian Constitution, there is a strict prohibition on the employment of children below the age of fourteen years to work, especially in factories, mines and other hazardous occupations. This prohibition is done to safeguard public health and ensure the safety of children. The Hon’ble Supreme Court in People’s Union for Democratic Rights v. Union of India (1982) ruled that construction work falls under hazardous employment and no child below the age of fourteen years can be employed for construction work, even if the industry is not specifically listed in the schedule of the Employment of Children Act, 1938. To enforce this provision, various laws were enacted, including the Employment of Children Act, 1938; the Child Labour (Prohibition and Regulation) Act, 1986; the Indian Factories Act, 1948 and the Mines Act, 1952; the Merchant Shipping Act, 1958, the Motor Transport Workers Act, 1961, the Plantations Labour Act, 1951, the Bidi and Cigar Workers (Conditions of Employment) Act, 1966 and the Apprentices Act, 1961, all of which restrict the employment of children below a certain age.

Right to freedom of religion (Articles 25-28 of the Indian Constitution)

Article 25 of the Indian Constitution : freedom to profess or practice religion

Article 25(1) guarantees every person the right to enjoy the freedom of conscience and the freedom to profess, practice and propagate any religion of their choice. This provision gives the right to disseminate or promote one’s religion by elucidating its principles.

Article 25(2)(a) outlines that the State retains the authority to enact the laws regulating or limiting various secular activities, including economic, financial and political activities connected with religious practices. Meanwhile, Article 25(2)(b) allows the enactment of a law enabling social welfare and reform or the opening of Hindu religious institutions of a public nature to all classes and sections of the Hindu community.

The rights granted to individual and religious groups under Article 25 are not absolute. This, however, is subject to public order, health, morality, and other grounds related to Fundamental Rights. In the case of Khursheed Ahmad Khan v. State of Uttar Pradesh (2015), the Hon’ble Supreme Court held that Article 25 of the Indian Constitution safeguards religious faith rather than practices that may conflict with public order, health or morality.

Article 26 of the Indian Constitution : freedom for managing religious affairs

It is provided under Article 26 of the Indian Constitution that every religious denomination is given special protection. It lays down that every religious denomination or a section thereof has the following rights:

The establishment and upkeep of institutions for religious and charitable objectives;
Autonomy in the management of its religious matters;
Possessing and acquiring property; and
Administration of such property according to law.

These above-mentioned rights are subject to public order, morality and health.

The term ‘religious denominations’ refers to a religious group sharing a common faith and structure and identified by a unique name. In S.P. Mittal v. Union of India (1983), the following criteria were prescribed to establish a ‘religious denomination’:

A ‘religious denomination’ comprises individuals who adhere to a set of beliefs that they consider conducive to their spiritual well-being;
They possess a shared organisational structure; and
They are identified by a distinct name.

Article 27 of the Indian Constitution : no taxation to promote a religion

Article 27 focuses on the secular character of the State. It states that an individual cannot be compelled to pay tax for the advancement or upkeep of any specific religion or religious denomination. Funds gathered from the public through taxation cannot be used by the State to endorse any one faith or religion.

Article 28 of the Indian Constitution : freedom as to attendance at educational instruction or worship in certain educational institutions

Under Clause (1) of Article 28, it is provided that no religious education is to be provided in any educational institution that receives complete funding from the State.

Clause (2) of Article 28 states that clause (1) of Article 28 does not apply to an educational institution established under an ‘endowment’ or ‘trust’ that mandates religious instruction, even if administered by the State.

Clause (3) of Article 28 asserts that an individual attending any educational institution, either state-recognized or state-aided, cannot be compelled to participate in religious instruction or worship unless they or their guardians consent voluntarily.

The Hon’ble Supreme Court in T.M.A. Pai Foundation v. State of Karnataka (2002) held that Article 28 distinguishes between three categories of educational institutions:

Any type of institution which is wholly publicly funded and maintained by the State, where religious education is strictly prohibited;
Any type of institution where the State acts as a trustee, allowing for religious instruction; and
State-aided denominational institutions, where religious instruction is allowed voluntarily.

Cultural and educational rights (Articles 29 and 30 of the Indian Constitution)

Article 29 of the Indian Constitution : protection of interests of minorities

Article 29(1) grants the right to any section of the citizens in India possessing a distinct language, script or culture of its own “to conserve the same”. This provision safeguards the language, script or culture of such citizens or classes.

Article 29(2) grants protection against specific types of injustice and wrongs, especially the refusal of admission to educational institutions maintained or aided by the State. In the State of Madras v. Champakam Dorairajan (1951), the applicability of this provision arose for the first time. The Madras Government, in this case, issued an order fixing the proportion of students from each community eligible for admission to State Engineering and Medical Colleges. The order was challenged on the grounds of denying admission based on religion. It was the contention of the petitioner that because they were Brahmins, they were not granted admission. The Madras Government’s order was deemed invalid by the Hon’ble Supreme Court, citing it as a violation of Article 29(2).

Article 30 of the Indian Constitution : minorities’ right to establish and manage educational institutions

Under Article 30(1), the following two types of rights are provided to linguistics or religious minorities:

The establishment of the educational institutions, and
The prerogative is to manage such educational institutions according to their preference.

The Hon’ble Supreme Court in St. Xaviers College v. State of Gujarat (1974) emphasised that Article 30(1) embodies the nation’s conscience to ensure that minorities belonging to linguistic or religious communities have the right to establish and manage educational institutions as per their own choice. It also provides that the children of the minority community receive the best general education, enabling them to become well-rounded citizens of the country.

By the Forty-fourth Amendment Act in 1978, Article 30(1-A) was inserted. It provides that when a law is made by the State which mandates the compulsory acquisition of property belonging to an educational institution established and managed by a minority, the State must ensure that the compensation amount set under such law does not abolish the rights guaranteed under clause (1) of Article 30.

Article 30(2) prevents the State from creating bias in providing assistance to any educational institution depending on whether it is administered by a religious or linguistic minority.

Article 31-A of the Indian Constitution : saving of laws concerning the acquisition of estates, etc

Article 31-A was added by the First Constitutional Amendment in 1951. It laid down that no law providing for the acquisition by the state of any estate or of any rights therein, or for the existing or modifying any such rights, would be void on the grounds of any inconsistency with any of the fundamental rights contained in Articles 14 and 19.

Article 31-B of the Indian Constitution : validation of certain Acts and Regulations

Article 31-B was introduced along with the Ninth Schedule of the Indian Constitution through the First Constitutional (Amendment) Act, 1951. It is provided, under this Article, that the Acts and Regulations mentioned in the Ninth Schedule cannot be invalidated or deemed to have been invalidated at any point, regardless of any adverse judicial pronouncement stating their inconsistency with, or infringement upon, any of the Fundamental Rights. This Article has a retrospective nature. The Hon’ble Supreme Court in Waman Rao v. Union of India (1981) held that if a law is previously declared invalid by a court and is later added to the Ninth Schedule, it is retrospectively deemed to have been part of that Schedule from the beginning. Consequently, the law cannot be deemed void or to have been void on the basis of any inconsistency with any fundamental rights. It can be concluded that the judicial decision rendered ineffective upon the inclusion of the statute is the Ninth Schedule. In Minerva Mills v. Union of India (1980), the Hon’ble Supreme Court held that the Acts and Regulations mentioned in the Ninth Schedule shall not be deemed to be void, in spite of adverse judicial pronouncements, on the grounds of inconsistency with any of the fundamental rights.

Article 31-C of the Indian Constitution : saving of laws implementing specific directive principles

The Constitution (Twenty-fifth Amendment) Act, 1971, introduced Article 31-C. It empowers both the Parliament and the State Legislatures to enact laws aimed at fulfilling the directive principles laid down in Part IV of the Indian Constitution. It provides that when a law is enacted to implement Part IV of the Indian Constitution, it would not be challengeable under Articles 14 and 19. The courts have the power to question whether the law in question achieves these objectives.

Right to constitutional remedies (Articles 32-35 of the Indian Constitution)

Article 32 of the Indian Constitution : remedies for enforcing fundamental rights

The sentinels of justice are the two constitutional courts, i.e., the Supreme Court of India and the High Courts of every state. They have been given powers of judicial review to ensure that the citizen’s rights are not infringed and are duly protected. A right has little substance if it is without a remedy. The fundamental rights guaranteed under the Indian Constitution would have been inoperative and non-justiciable had the Constitution not guaranteed an efficacious mechanism for its enforcement. It is provided under Article 13 that fundamental rights are enforceable in the Court of law, and any law contravening a fundamental right is null and void. The fundamental rights are justiciable in nature because of the presence of Article 13. The Court has both the power and duty to nullify a law if it is not in conformity with the fundamental rights.

Article 32(1) guarantees to an individual of the right to move to the Hon’ble Supreme Court, through proper proceedings, for the enforcement of the fundamental rights provided in the Indian Constitution.

Article 32(2) empowers the Hon’ble Supreme Court to issue suitable orders, directions or writs for enforcing the petitioner’s fundamental rights. Depending on each case, the writs can be in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari. A writ does not create a legal right but only enforces a fundamental right, which is already provided in Part III of the Indian Constitution.

Article 32(3) authorises the Parliament to allow any other court to exercise within the territorial limits all or any of the powers exercisable by the Hon’ble Supreme Court under Article 32(2). It can be done without prejudice to the powers of the Supreme Court under clauses (1) and (2) of Article 32.

Article 32(4) states that the right guaranteed under Article 32 cannot be suspended “except as otherwise provided for by the Constitution.” The fundamental right to move any Court to enforce any fundamental rights is suspended under Article 359 at the time of national emergency, except for Articles 20 and 21 of the Indian Constitution.

In the case of Shantabai v. State of Maharashtra (1958), the Hon’ble Supreme Court held that judicial review is permissible of any administrative, legislative and governmental action or non-action for enforcing a fundamental right. But, this provision cannot be invoked to adjudge the validity of any administrative, legislative, or governmental action unless it adversely affects the petitioner’s fundamental rights.

The following five types of writs are mentioned under Article 32:

Habeas Corpus

The term ‘Habeas Corpus’ means “to have the body of”. As per this writ, the court has the authority to call upon any person who is being detained to assess the legality of their detention.

Certiorari

The term ‘Certiorari’ means “to be certified”. By virtue of this writ, a higher court reviews a case that has been tried in a lower court. It is basically employed to seek judicial review of a decision given by a court or a government authority.

Prohibition

The writ of ‘Prohibition’ is issued by a court to restrict or prohibit the lower courts, tribunals and other such quasi-judicial authorities from acting beyond their legal authority. It is employed to check inactivity, whereas the writ of Mandamus checks activity.

Mandamus

The term ‘Mandamus’ means “We command”. This writ is employed by the court to direct a public official who has failed or refused to do his duty, to resume his work. The writ of Mandamus is also issued against a public body, an inferior court, a corporation, a tribunal, or a government.

Quo Warranto

The term ‘Quo Warranto’ means “By what authority or warrant”. The Supreme Court or high courts employ this writ to avoid illegal usurpation of a public office by an individual. The writ of Quo Warranto authorises the court to examine the legality of a person’s claim to a public office.

The doctrine of Res Judicata

The Hon’ble Supreme Court in Daryao v. State of Uttar Pradesh (1961) held that the Hon’ble Supreme Court has been given the power to act as a guarantor and protector of fundamental rights. The Court should be satisfied that the fundamental rights of the petitioner have been infringed. Then, it is the right and duty of the Court to give relief to the petitioner. Once the infringement of fundamental rights is established by the petitioner, the Court has no discretion but to issue a relevant and proper writ in the petitioner’s favour. The essence of democracy lies in the liberty of the individual and the protection of fundamental rights, and it is both the privilege and duty of the Hon’ble Supreme Court to uphold such rights.

In the above-mentioned case, a restriction was imposed on the Supreme Court’s jurisdiction under Article 32 by applying the doctrine of res judicata. The rule of res judicata is based on the larger public interest, which provides that finality should be attached to binding decisions of courts of competent jurisdiction and that not every individual should be made to face the same type of litigation again. It is necessary that the rule of res-judicata is applied to writ proceedings as well. If it were not applied to writ proceedings, a party to the case would take one proceeding after another and add new grounds in the same proceeding every time in respect of one and the same cause of action. If a writ petition filed under Article 226 is rejected by the High Court, another writ petition under Article 32 could not be allowed in the Hon’ble Supreme Court to address the same issue. This rule enunciates that a judgment is passed by a competent court; it holds a binding authority. It is binding until it is overturned by an appeal, revision or other lawful process. In this case, the Hon’ble Supreme Court also held that the High Court’s jurisdiction in handling writ petitions under Article 226 is similar to that of the Hon’ble Supreme Court under Article 32.

Article 33 of the Indian Constitution : limitations on armed forces personnel’s fundamental rights

Article 33 is an exception to Article 13(2) of the Indian Constitution. The Parliament has the authority to restrict the fundamental rights of the following cadre of persons:

Members employed in armed forces;
Members of armed forces responsible for ensuring public order;
Persons employed in any bureau or organisation established by the State for intelligence or counter-intelligence purposes;
Persons employed in, or connected with, the telecommunication system set up for the purpose of any force, bureau or organisation referred to in clauses (a), (b), (c).

Article 34 of the Indian Constitution : limitations on the application of fundamental rights during Martial Law

Article 34 of the Indian Constitution stipulates that, notwithstanding the provisions outlined in this Part, Parliament has the authority to absolve any individual serving the Union or a State, or any other individual, of liability for any action carried out by them to uphold or reinstate order in an area where martial law is enforced. Parliament’s jurisdiction in this regard is subject to the following two prerequisites:

The act to be indemnified must be related to the preservation or reinstatement of order; and
Martial law must be enforced in the area where the action was undertaken.

Article 35 of the Indian Constitution : legislative measures to enforce specific fundamental rights

The Parliament has the power to legislate on laws which aim to give effect to certain specified fundamental rights as provided in Article 35. This power is granted only to the Parliament and to the state legislatures. The Parliament is empowered to legislate on specified matters, even those falling within the jurisdiction of the state legislatures (i.e., the Seventh Schedule of the Indian Constitution). The Parliament is authorised to enact laws on the following subject matter:

Provide residence as a prerequisite for a certain type of employment or appointments in a State, Union Territory, local or any other authority.
Except the Supreme Court and High Courts, allow all the courts to issue directions, orders and writs for the enforcement of fundamental rights.
Members belonging to the armed forces, police forces, etc., limit or nullify their applicability of Fundamental Rights.
At the time of operation of martial law in India, provide immunity to government officials or any other individual for actions undertaken;
Authorise the Indian Parliament to legislate punishment for offences such as untouchability, human trafficking, and forced labour.

Conscience overview of landmark cases relating to Fundamental Rights under the Indian Constitution

A. K. Gopalan v. State of Madras (1950)

In this case, A.K. Gopalan filed a petition under Article 32, thereby invoking the writ of habeas corpus against his detention. Later, he was prohibited from disclosing the grounds based on which he was detained since Section 14 of the Preventive Detention Act, 1950 prohibited such disclosure in court. As a result, he claimed that such detention violates Articles 14, 19, and 21 of the Constitution and, further, the provisions of the Act violate Article 22 of the Constitution.

This case led to the landmark judgement of the Hon’ble Supreme Court wherein the Hon’ble Court held that Article 21 of the Constitution shall not require the Indian courts to apply the due process of the standard of law. Further, the Hon’ble Court upheld the validity of the Preventive Detention Act, 1950, except for Section 14, which provided that the reasons for detention given to the detainee or any representation made by him against such reasons shall not be disclosed in a court. The Hon’ble Supreme Court also interpreted the term ‘law’ as a “state-made law” and rejected the plea of A.K. Gopalan, who claimed that the term ‘law’ in Article 21 meant not the state-made law but the principles of natural justice.

Shankari Prasad v. Union of India (1952)

In this case, the First Constitutional (Amendment) Act, 1951 and the insertion of Articles 31-A and 31-B were challenged for their constitutional validity. The question arose before the Hon’ble Supreme Court whether, under Article 13(2) of the Indian Constitution, the term ‘law’ also includes a ‘constitutional amendment’. The Hon’ble Court held that, under Article 13(2), the term ‘law’ did not include constitutional amendment made by the Parliament under Article 368. The term ‘law’ must be taken to include rules or regulations made in the exercise of ordinary legislative powers and not the constitutional amendments made in the exercise of constituent powers, and Article 13(2) did remain unaffected by any constitutional amendment.

Sajjan Singh v. State of Rajasthan (1965)

In this case, the constitutional validity of the Seventeenth Constitutional (Amendment) Act, 1964 came into question. The Hon’ble Supreme Court upheld the decision of Shankari Prasad and agreed that the words ‘amendment of the Constitution’ means an amendment of all the provisions of the Constitution.

Golak Nath v. State of Punjab (1967)

The question before the Hon’ble Supreme Court in this case arose whether any of the Fundamental Rights could be taken away by the Parliament in the exercise of its power under Article 368. Again, the Seventeenth Constitutional (Amendment) Act, 1964 was challenged. In an eleven-judge Bench, the majority of the judges overruled the Shankari Prasad and Sajjan Singh judgement. It held that under Part III of the Indian Constitution, the Fundamental Rights were non-amendable through the constitutional amendment under Article 368. The majority of judges in this case held that a “transcendental” position is occupied by fundamental rights. This importance is given to the fundamental rights so that no authority, including the Parliament, functioning under the Constitution at the time of exercising its amending power under Article 368, would amend any of the fundamental rights.

The following four propositions were laid down by the majority judges in this case:

The substantive power to amend the Constitution is not to be found in Article 368. Article 368 only provides the procedure for amending the Constitution;
A law made under Article 368 would be subject to Article 13(2) like any other law;
The term ‘amend’ includes only minor changes in the existing provisions but not any major changes therein;
For the purpose of a constitutional amendment in the Fundamental Rights, it is necessary that a Constituent Assembly is convened by the Parliament.

Kesavananda Bharati v. State of Kerala (1973)

The constitutional validity of the Twenty-fourth, Twenty-fifth and Twenty-ninth Constitutional Amendments were challenged in this case. It was a bench of 13 Judges because Golak Nath, a decision by a Bench of 11 Judges, was under review. The following opinions were delivered by the Judges on 24 April 1973:

The procedure for amending the Constitution is provided in Article 368, and the provisions relating to the constitutional amendment are the most important feature of the modern Constitution;
An ordinary law is different from a constitutional law;
The Parliament’s power to amend the Constitution cannot be applied in a way to infringe the Fundamental Features of the Constitution. Any amendment in the Constitution which abrogates the basic structure is ultra-vires;
There are certain features of the Constitution which are regarded by the Court as fundamental and non-amendable. They are as follows:

Constitutional supremacy;
Democratic and Republic form of government;
Secular character of the Constitution;
Separation of powers between the legislative, executive and judiciary;
Federal nature of the Constitution.

The power of the Parliament to amend the Constitution under Article 368 is not absolute and unlimited. The Courts can question whether any amendment to the Constitution tends to destroy the basic features or not. If an amendment does so, it will be held as constitutionally invalid.

The above list is not exhaustive. It is only illustrative in nature. It is the Court’s discretion to decide as and when the question arises whether a particular constitutional amendment could have the effect of destroying the basic feature of the Constitution or not.

Indira Nehru Gandhi v. Raj Narain (1975)

In this case, the constitutional validity of Clause (4) of the Article 329-A came into question. It was added through the Constitution (Thirty-ninth Amendment) Act, 1975. This Amendment was challenged on the ground that it destroyed the basic feature of the Constitution. The petitioner contended that Clause (4) wiped out the judgement of the High Court, but also the election petition and the law relating to it. The constituent power discharged a judicial function in deciding the dispute relating to the election against the Prime Minister, and in doing so, it had followed no procedure and applied no law. For this purpose, the Kesavananda Bharti ruling was directly invoked. The Hon’ble Supreme Court upheld the contention of the petitioner and declared Clause (4) unconstitutional.

Maneka Gandhi v. Union of India (1978)

In this case, Maneka Gandhi’s passport was impounded in ‘public interest’. The Government refused to provide any details in the interests of the general public when the reasons for impounding her passport were asked. As a result, Maneka Gandhi filed a writ petition under Article 32 stating that the action of the government violated Articles 14, 19, and 21 of the Constitution. The government responded by stating that her passport was impounded because her presence was likely to be required regarding certain legal proceedings before a ‘Commission of Inquiry’. The Supreme Court held that a ‘procedure’ under Article 21 of the Constitution which deprives a person of his ‘life or personal liberty must be just, fair and reasonable’. The requirements of principles of natural justice, which is an essential element of fair procedure under Article 21, must be fulfilled.

Minerva Mills Ltd. and Ors. v. Union Of India and Ors. (1980)

In this case, the Supreme Court provided certain clarifications on the interpretation of the basic structure doctrine. The Court held that the power of the Parliament is limited in amending the Constitution. Therefore, the Parliament cannot exercise such limited power to grant itself unlimited authority to amend the Constitution. Thus, the Parliament cannot take away the Fundamental Rights of individuals. The judgement in this case also struck down Clause (4) and (5) of Article 368. Clause (4) of Article 368 deprived the Court of its power to call into question any constitutional amendment. It restricted the court’s power of judicial review, which would mean that the Fundamental Rights would be “a mere adornment” since they would be rights without remedies. Clause (5) of Article 368 empowered the Parliament to exercise its constituent power without any restriction. It also allowed the Parliament to repeal any constitutional provision.

Conclusion

The Fundamental Rights constitute an integral part of the Indian Constitution. It guarantees to the citizens of India these basic and fundamental rights as long as the Indian Constitution exists. These rights also ensure that the citizens are protected from arbitrary State actions and can approach the judiciary to seek redressal if any infringement of fundamental rights occurs. Fundamental Rights under the Indian Constitution are regarded as essential because they are important to be enjoyed by every individual or for his full intellectual, moral and spiritual status. As a welfare State, India needs to ensure that there is always a balance between the conflicting interests of the individuals and society. To resolve the conflicting interests of both individuals and society, fundamental rights have been provided under the Indian Constitution. To ensure the legitimate use of these rights, reasonable restrictions are imposed upon individual liberties in the interest of society.

Frequently Asked Questions(FAQs)

Who protects the fundamental rights in India?

The Indian Judiciary protects the fundamental rights of the people of India. For the enforcement of these rights, any person can approach the Hon’ble Supreme Court and High Courts under Articles 32 and 226, respectively.

Are the fundamental rights guaranteed under Part III of the Indian Constitution absolute?

The fundamental rights guaranteed under Part III of the Indian Constitution are not absolute and are subject to reasonable restrictions. Such restrictions are imposed by the legislation enacted by the Parliament. The reasonable restrictions imposed must be for maintaining the following:

Public order; or
Morality; or
Sovereignty or Integrity of India.

What are the conditions for a classification to be reasonable under Article 14 of the Indian Constitution?

A classification to be reasonable under Article 14 of the Indian Constitution must fulfil the following two conditions:

The classification must be based on an intelligible differentia which distinguishes those who are grouped together from those left out of the group; and
The differentia must have a rational relation to the object sought to be achieved by the Act.

What is the effect on the enforcement of fundamental rights at the time of emergency?

Article 358 of the Indian Constitution provides that when a proclamation of national emergency is made on the grounds of war or external aggression, the six fundamental rights guaranteed under Article 19 are automatically suspended.

Under Article 359 of the Indian Constitution, it is provided that the President has the authority to suspend, by order, the right to move any court for enforcing the fundamental rights at the time of national emergency. However, by the 44th Constitutional (Amendment) Act, 1978, it was added in this provision that the President cannot suspend the right to move to court for the enforcement of fundamental rights guaranteed under Articles 20 and 21.

Can the fundamental rights be amended?

The Hon’ble Supreme Court in Kesavananda Bharti v. State of Kerala (1973) held that all the provisions of the Indian Constitution, including the fundamental rights, can be amended. But, the Parliament cannot amend the basic structure of the Indian Constitution. The alteration in the fundamental rights can be done only through a constitutional amendment under Article 368 of the Indian Constitution.

References

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