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This article is written by Shubhangi Upmanya pursuing BBA LLB from Vivekananda Institute of professional studies, Indraprastha University. She has described fundamental rights and Article 13 of the Indian Constitution.


‘People believe in law’ and to keep that belief the Drafting committee gave the concept of Fundamental Rights in Part III of the Indian constitution. It gives liberty to the citizens of India and protects it from being infringed by the state. It also provides for the remedy if their fundamental right is violated.

And to keep the belief of people in the State, Article 12 and 13 were introduced. Article 12 gives the definition of state and tells about the responsibility the state has towards people and their fundamental rights whereas Article 13 of the Indian constitution which presents itself in four parts, makes the concept of fundamental rights more powerful and gives it a real effect.

This article protects the individual’s fundamental rights by rendering any law null and void if it intervenes with the liberty or is inconsistent in any way with the fundamental right of the person.
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Origin and development of Fundamental Rights

The salient features of the Indian constitution are recognizable and unique from other constitutions even though it has borrowed some second to none features of some of the other constitutions of the world that is the constitution of India is not a paper or a scissor work but the beat of a different drum.

Amongst all the borrowed features, the idea of fundamental rights was taken from the constitution of the United States. Drafting committee gave the concept of Fundamental Rights in Part III of the constitution which was originated by the inspiration from England’s Bill of rights, United States Bill of rights, the development of the Irish constitution and France’s declaration of the rights of man. 

The Indian National Congress in Bombay in 1918 suggested a declaration be included in the Government of India Act which contains the rights of people as British citizens. Nehru committee also emphasized on having fundamental rights guaranteed so that it cannot be pulled out under any circumstances, which was refused. The Indian National Congress in its Karachi session again brought up the matter of a written guarantee of the fundamental rights which was again refused by the joint select committee of the British Parliament. Finally, the constituent assembly adopted the Objective Resolution on January 22, 1947, and pledged to guarantee and secure the fundamental rights of the people.

Need for Fundamental Rights

A country provides its citizens with some rights which add to their growth and development and enables them to live a life of utmost dignity. Amongst these rights, there are some rights of fundamental nature. 

The term ‘Fundamental’ is used as these rights are most essential of all rights without which the survival of an individual is not possible. Fundamental rights embody the spirit to secure the dignity and liberty of the individual and protect it from any invasion of the state.

In case of infringement of the fundamental right, the individual can directly approach the Supreme Court. It ensures that the law governs the government and the people and there is no dictator rule. 

Judicial trends in interpreting provisions of Part III

The constitution safeguards the rights of the people from any exploitation by the government or any other authority of government. 

The constitution through Article 21 which is-’right to life and personal liberty’ ensures liberty as freedom of speech and expression(Article 19), to follow one’s religion and belief, etc.


This case challenged the constitutional validity of the Preventive Detention Act of 1950 and raised the questions related to personal liberty. It was ruled out that the constitution has not provided for nullifying any act of the competent authority which violates the principles of natural justice and there is no safeguard against it.


The famous habeas corpus case introduced amendments in article 359 by the 44th amendment which prohibited the suspension of the article 20 and 21 even during an emergency. It was done after it was realized that the officials went beyond the ambit of their power while misusing the preventive detention Act.

Widest Interpretation of provisions of Part III

The question that whether the judiciary falls in the ambit of ‘the state’ mentioned in Article 12 or not arises while interpreting the provision of part III of the constitution and if not then it allows the judiciary to violate the provision contained in the part. If we have a look at Article 13(2) the word ‘the state’ may include the Judiciary in its ambit and also talking about the writ of certiorari, the provision to enforce which is a fundamental right is exercised by the courts itself.

Maneka Gandhi’s case has given the provision of part III a much wider interpretation. 


In this case, under section 10(3)(c) of the passport Act, Maneka Gandhi’ s passport was seized. A writ was issued as it was violative of Article 21. Maneka Gandhi was also not given the right to make her defense which rendered the order null and void. It was ruled out that articles 14,19 and 21 are not mutually exclusive but while considering one, the other two have to be taken into account.

Natural Justice and Due Process

The term ‘principle of natural justice’ though nowhere to be found in the constitution, holds immense importance in the functioning of the legal system. It ensures the safeguarding of an individual’s basic rights and ensures that they live their life with dignity. This was not included afterward but was there since the beginning and makes the ground of justice natural.

There are three types of natural justice:-

Audi Alteram Partem

The right to be heard is a natural principle that must be followed for thriving for fairness in the judgment. Every person should be allowed to present his defense which was also the judgment in the case Maneka Gandhi v. Union of India, where she was deprived of her right to be heard.

Nemo debet esse in propia causa 

No one ought to be the judge in his or her case, says this principle. It sets a procedure for a fair hearing based on the proposition that justice should not only be done but should seem to be done. In J. Mohapatra & Co And Another vs State Of Orissa And .. as one of the judges of the selection committee for the selection of the books, was the author of a book. Here the rule of bias was applied.

Reasoned decisions

When a decision is given by a judicial body it is necessary for it to give reason along with the decision stating all the consequences which led to that decision. With this principle, the judiciary can no longer take arbitrary decisions and act fairly.

With the introduction of due process, the principle of natural justice was enhanced. This law makes sure that the person enjoys his liberty and live a life of dignity and is not deprived of his property. This is of two types:-

Procedural due process

When a person is been convicted and there is a possibility to deprive him of his life or property or liberty but in that case, the individual should understand the process as to why he has to go through this. It is important to give him a notice stating was wrong he has committed for which he is being convicted, a reasonable time should be given to him to make his defense and the proceedings should be made to be understood by him.

Substantive due process

It prohibits the judiciary to punish an individual for any wrong that affects fundamental right until and unless there is an obligation on the part of the judiciary to do so which should be communicated. The right included in this is freedom of speech and expression, freedom of assembly, freedom of religion.

Prisoners Rights and Prison Reforms

 Prisoners after being sentenced to jail still remain the people to whom the government should provide justice. The prison is being the centre of injustice devoiding the prisoners from the custodial provisions and transparency in the system. With poor prison environment, unhygienic conditions, improper representation, being in the waitlist for pending trials,  these prisoners suffer a lot and become mentally ill and more vulnerable than before. Many of which are juveniles who are yet to be proven guilty. Most of which are poor who can’t afford good representation.

It is important to improve the prison condition and provide legal aid services and ensure the proper functioning of the prison mechanism.   

Expanding Role of the writ of Habeas Corpus

The habeas corpus writ is one of the most ancient constitutional remedies. This obligates the appearance of the person in custody in the court during the proceedings. This is acquired in a case to release the person after bail or to provide relief to people in a case where he is wrongfully detained.

This writ was introduced in the United Nation’s constitution after the British colonies won the independence battle. This writ can be filed in the Supreme court and also in High court under Article 32 and 226 of the Indian constitution respectively. 

Initially, this writ was just an instant remedy for the detention which has just happened and not for the past detention. But now, this writ has been expanded by the Supreme court for the detention that has happened in the past and also where someone is deprived of his life. It was very narrow in the beginning but now it extends to every injustice done against any type of liberty. 


Sunil Batra was convicted in Tihar jail in New Delhi from where he observed the inhumane treatment by the jail officials of that department.

Thereafter, he sent a letter stating miserable treatment done with a co-prisoner wherein an official in the want of money inserted the baton into the anal hole. This letter was then transformed into the habeas corpus writ

And that person appeared before an amicus curiae appointed by the court who confirmed the anal ruptures.

A.B.S.K SANGH (Rly.) v. UNION OF INDIA, AIR 1981SC 298

It was contended in this case that respondent 6 who belonged to a minority class was promoted to D.S.K-I which belonged to the general category after being promoted from D.S.K-II from D.S.K-III both of which belonged to the reserved category. The reason given for this was that there was a vacancy in the general category.

 The court ruled out that when there is a vacancy the place has to be filled by the person of the same class and if there is no one to fill up that place then the place is open to be filled by the person of any other class.

Human Rights Jurisprudence

Human rights are the rights that serve the purpose and needs of an individual. These are the rights against society rather than an individual. these rights are absolute as a person can’t put aside his human nature. The rights inculcate the resources, benefits, and immunity to all the people living in that society.

Human rights jurisprudence is the application to fulfill the human rights obligation.


A man was chained in the custody, whereafter a writ of habeas corpus was issued under Article 32 and was filed under Section 5 and 10 of the human declaration Act. The court ruled out that to preserve human dignity is very essential and manacling a man is dehumanizing. The prisoner is not an animal and Article 14, 19 and 21 come into action. 

Suspension of Fundamental Rights

Article 359 empowers the president to suspend the enforcement of fundamental rights during the state of emergency. There are three types of emergency that can be imposed by the state.

  • National emergency
  • State emergency
  • Financial emergency

When the national or state emergency is imposed then Article19 is suspended whereas the whole part of fundamental rights can be suspended by the president, however, the order has to be presented before the parliament for its approval.  Under no circumstances can Article 20 and 21 be suspended.

Suspension of these rights is still a matter of debate even if the conditions have changed since the ADM Jabalpur case.

Classification of Fundamental Rights

Fundamental rights can be classified into six categories:

1.Right to equality(Article 14-18)

  1. Right to Freedom(Article 19-22) 
  2. Right against Exploitation(Article 23-24) 
  3. Right to Freedom of Religion(Article 25-28)
  4. Cultural and Educational Rights(Article 29-30) 
  5. Rights to constitutional remedies(Article 32-35)

Fundamental Rights available against State and not against private individuals

Private rights being available only against the state and not against private individuals raises an issue, considering Article 15(2) which is discrimination, here if many people suffer from discrimination done by other individuals and taking up Article 17 which talks about untouchability is also done by private individuals. Article 23 which is for trafficking and Article 24 which prohibits employment of children in the hazardous industries should also be made available against a private individual.

 If this is not made available against the private individual then the main purpose of the law to provide justice will get defeated.

Test to determine whether a body is an agency or instrumentality of the State

The state ruled out some checkpoints to recognize the body as an agency or instrumentality of the state in the case of RD Shetty V. International Airport Authority where the question as to whether the airport authority was a state or not arose. Two checkpoints were:

  1. If the state provides extensive financial support to the body.
  2. If the state has a wider degree of control over the body.
  3. Whether the function the body performs is of public utility and importance.

Laws inconsistent with Fundamental Rights

Article 13(1) talks about the laws which were present before the constitution came into force. It says that if they are inconsistent with the provisions of the part of this article will be void to the extent of the inconsistency.

Article 13(2) talks about the laws which are passed after the constitution came into force. It renders all the laws void which violates the provisions of this part.

Doctrine of Severability

As in article 13(1), it is mentioned that the pre-constitutional law will only be void to the extent of the inconsistency while in article 13(2) it is mentioned that post-constitutional law will be void to the extent of the contravention.

The doctrine of Severability says that is if a part of any law is inconsistent then the rest of the part will remain valid. It applies to both pre and post-constitutional law.


It was found that section 14 of the preventive detention Act was violating Article 14 of the constitution so it was made void but the other parts of the act were separable while still alive and operative.

Doctrine of Eclipse

Article 13(1) talks about the pre-constitutional law as it says that the laws existing before the commencement of the constitution if found inconsistent with the provisions present in article 13 then they will be void.

But the Doctrine of Eclipse says that the inconsistent laws though becomes out of whack but not completely dead. It is eclipsed by the fundamental rights and can again be alive through some constitutional amendments.

It is only applicable to citizens as non-citizens do not have fundamental rights so they can’t challenge the validity of any law.


It was ruled out that only the pre-constitutional law can be brought to life whereas the post-constitutional law which infringes fundamental right is void from its dawn.

Doctrine of Waiver

This doctrine considers that a person is his own judge and will choose what is best for him. The doctrine of waiver says that a person can put aside his right if he wants to. It only talks about individual rights and not the rights of the public in general.


Some pavement dwellers took an undertaking to allow the government to set up huts on pavement and to not hinder the demolishing of the huts.

But during the demolishing of the huts he dwellers filed a petition under Article 21. The  Supreme Court ruled out that no one can relinquish their fundamental rights as they are for the public utility given to an individual for his own benefit.

The Doctrine of Lifting the veil

An individual when in a corporation if does a fraud or a scam then he thinks of hiding behind the real beneficiaries of the company but he can’t because the corporate veil can be lifted by the government by bringing in the doctrine of lifting the veil. 

The government made a clear extinction between the partnership and shareholders. In a partnership where the owner can be held responsible, the shareholder can not.


“To no one should the right and justice be delayed, sold or denied” – promises our constitution but still the injustice is been seen.

Fundamental rights were not so fundamental before the ADM Jabalpur case but many changes have been noticed since then but there are many to still strive for. 

Whether it is the prison reforms which are to be changed and the system is to be made more transparent or the providing of rights against private individuals and not only the state, the legal mechanism to carry out the functioning of Article 13 which means the whole definition of law has to be armed till teeth.

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