Fundamental Rights

Imagine a country where a government could jail you, silence you or take your home just because it wished to. Fundamental Rights are the Constitution's answer: they are guarantees that the State itself must respect. They are in Part III (Articles 12 to 35), which is why Part III is called the "Magna Carta of India", after the English charter of 1215 that first limited a king's power. The idea of listing such rights was taken from the Bill of Rights of the USA. Demands for them came from the Motilal Nehru Report (1928) and the Karachi Resolution of the Congress (1931), and in the Constituent Assembly the Advisory Committee chaired by Sardar Vallabhbhai Patel (with a sub-committee on Fundamental Rights under J. B. Kripalani) drafted them.

Article 12 tells us against whom Fundamental Rights are claimed: the "State". It includes the Government and Parliament of India, the Government and Legislature of each State, and all local and other authorities within India or under the Government of India's control (municipalities, panchayats, statutory bodies, public sector bodies such as LIC or ONGC). A private person or company is normally not "State", though a few rights are available even against private parties (Article 15(2), 17, 23 and 24). Courts are generally not regarded as "State" while doing judicial work.

Article 13 is the guard that makes the rights real: any law that is inconsistent with or takes away a Fundamental Right is void to that extent. Clause 13(1) covers laws made before the Constitution, 13(2) covers laws made after it, 13(3) says "law" includes ordinances, orders, rules, regulations, notifications, customs and usages, and 13(4) (added by the 24th Amendment, 1971) says that Article 13 does not apply to a constitutional amendment under Article 368. Because of Article 13, the Supreme Court and High Courts can strike down laws: this power is called judicial review.

Equality is the first promise of Part III, and it is placed there for a reason. India in 1950 was a society divided by caste, religion and sex, so the Constitution begins by saying that the State must treat people as equals. But equality does not mean treating everyone identically; it means treating like cases alike, and unequal cases differently when there is a good reason. The five articles of this group (14 to 18) build this idea step by step: from general equality (Article 14), to no discrimination (15), to equal opportunity in jobs (16), and then two special abolitions: untouchability (17) and titles (18).

Reasonable classification is how Article 14 and special laws live together. The State may treat groups differently if (1) the classification rests on an intelligible differentia (a clear, understandable difference between those grouped and those left out) and (2) the difference has a rational nexus with the aim of the law. This test comes from State of West Bengal v. Anwar Ali Sarkar (1952). Later, in E. P. Royappa (1974), the Court added that arbitrariness is the opposite of equality: an arbitrary law or action violates Article 14. Article 14 is available to all persons, citizens and non-citizens.

Article 16 is where reservation in jobs is rooted. Article 16(4) lets the State reserve posts for backward classes that are not adequately represented in State services. Over time the Constitution added 16(4A) (promotion for SC/ST, 77th Amendment, 1995), 16(4B) (carrying forward unfilled reserved vacancies, 81st Amendment, 2000) and 16(6) (reservation for the economically weaker sections, 103rd Amendment, 2019). The landmark case is Indra Sawhney v. Union of India (1992), the Mandal case: the Court upheld 27% reservation for OBCs, but excluded the creamy layer, set a 50% ceiling on total reservation (in normal circumstances), and said there should be no reservation in promotions (later changed by the 77th Amendment).

Articles 17 and 18 are about removing two old social evils. Article 17 abolishes untouchability and forbids its practice in any form; enforcing any disability arising from it is an offence. It binds even private persons. Laws behind it: the Protection of Civil Rights Act, 1955 (originally the Untouchability (Offences) Act, 1955, renamed in 1976) and the SC/ST (Prevention of Atrocities) Act, 1989. Article 18 abolishes titles: the State cannot confer any title except a military or academic distinction; a citizen cannot accept a title from a foreign State; and a non-citizen holding an office of profit cannot accept one without the President's consent. The Bharat Ratna and Padma awards are not titles (Balaji Raghavan case, 1996), but they cannot be used as prefix or suffix to a name.

The Right to Freedom is the largest bundle in Part III. Article 19 gives six freedoms to citizens, Article 20 protects a person accused of a crime, Article 21 guards life and personal liberty, Article 21A gives children the right to education, and Article 22 protects a person who is arrested. Remember the idea behind all of them: freedom in a democracy is never unlimited. Your freedom to swing your arm ends where another person's nose begins, so each freedom carries its own list of reasonable restrictions, and the courts decide whether a restriction is really reasonable.

Freedom of the press is not written separately in the Constitution; the courts read it into Article 19(1)(a). The early cases were Romesh Thappar v. State of Madras (1950) and Brij Bhushan v. State of Delhi (1950), where the Supreme Court struck down curbs on newspapers. Later, Shreya Singhal v. Union of India (2015) struck down Section 66A of the IT Act as an unreasonable restriction on speech, and Anuradha Bhasin v. Union of India (2020) held that freedom of speech and trade through the internet is protected by Article 19(1)(a) and (g). Note what the courts did not accept: there is no fundamental right to strike, and a bandh that disrupts public life is not protected.

Article 20 is special for two reasons. It is available to all persons, including foreigners, and it cannot be suspended even during a National Emergency (since the 44th Amendment, along with Article 21). Think of Articles 20 and 21 as the two rights that survive even the darkest hour of the Constitution.

Article 21 says: "No person shall be deprived of his life or personal liberty except according to procedure established by law." It is the most expanded Article of Part III, and it is available to every person. In A. K. Gopalan v. State of Madras (1950) the Supreme Court read it narrowly: any procedure made by a valid law was enough. Everything changed in Maneka Gandhi v. Union of India (1978), when the Court held that the procedure must be just, fair and reasonable, and that Articles 14, 19 and 21 are linked with one another. This is why people say the Court brought in the American idea of "due process of law" through the back door, even though those words are not in Article 21.

Article 21A (inserted by the 86th Amendment, 2002) says the State shall provide free and compulsory education to all children aged 6 to 14 years. The same amendment changed Article 45 (now early childhood care and education for children below six) and added Article 51A(k), a Fundamental Duty of parents and guardians to give opportunities for education to a child aged 6 to 14. The detailed law is the Right of Children to Free and Compulsory Education (RTE) Act, 2009, which came into force on 1 April 2010 and reserves 25 per cent seats in private unaided schools for children from weaker and disadvantaged sections. Before 2002, the Court had already read education into Article 21 in Mohini Jain (1992) and Unni Krishnan (1993).

These eight Articles protect the weakest and the smallest. Articles 23 and 24 protect people from being treated as goods or cheap labour. Articles 25 to 28 make India a country where every person can follow any religion, or none, without the State pushing or punishing. Articles 29 and 30 make sure that minorities can keep their language, script and culture alive and run their own schools. All of them are available to all persons, except 29 and 30, which are for citizens (and minority groups among them).

The Indian model of secularism is not a wall between State and religion, as in the USA. The State keeps an equal distance from all faiths but may regulate the secular activity linked to religion and may carry out social reform. Article 25(2) lets the State throw open Hindu religious institutions of a public character to all sections of Hindus, and Explanation II says that the word "Hindus" there includes Sikhs, Jains and Buddhists. Courts decide what is truly part of a religion by the test of essential religious practices, laid down in the Shirur Mutt case (1954). Remember also that the Supreme Court in Rev. Stainislaus v. State of Madhya Pradesh (1977) held that the word "propagate" in Article 25 means to spread a religion by telling its teachings, and does not include a fundamental right to convert another person. The words "secular" and "socialist" were added to the Preamble by the 42nd Amendment (1976), and S. R. Bommai v. Union of India (1994) called secularism a basic feature of the Constitution.

Six communities are notified as minorities at the national level under the National Commission for Minorities Act, 1992: Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) from 1993, and Jains from 2014. This is useful for questions on the Ministry of Minority Affairs. Remember that Article 30 gives the right to establish and administer; it does not give a right to ignore rules about academic standards, which the State can regulate for the sake of excellence and fair treatment of students and teachers.

A right without a remedy is like a lock without a key. Article 32 is that key: it gives every person the right to go straight to the Supreme Court when a Fundamental Right is violated. Dr B. R. Ambedkar called it "the very soul of the Constitution and the very heart of it", and that is why it is the most quoted line of this chapter. The Supreme Court can issue directions, orders or writs, and Article 32 is itself a Fundamental Right, so the Court cannot refuse to hear a genuine petition. Article 32(3) lets Parliament empower other courts to do the same, and Article 32(4) says the right cannot be suspended except as the Constitution provides, that is, during an Emergency under Article 359.

Two more ideas help in the exam. First, Emergency: under Article 359 the President may suspend the right to move the courts for enforcement of Fundamental Rights during a National Emergency, but since the 44th Amendment (1978) he cannot suspend this right for Articles 20 and 21. The idea of suspending rights in an Emergency was taken from the Weimar Constitution of Germany. Second, PIL: through Public Interest Litigation, a person who is not himself harmed can approach the court on behalf of those who cannot; the Court relaxed the old rule of locus standi in cases like S. P. Gupta (1981) and Hussainara Khatoon (1979).

Of all the Fundamental Rights, the right to property had the stormiest life. At the start the Constitution protected it twice: Article 19(1)(f) (to acquire, hold and dispose of property) and Article 31 (no deprivation of property without law and compensation). But land reform and the abolition of zamindari collided with this right again and again, so Parliament kept amending the Constitution, courts kept striking the amendments down, and out of that tug-of-war came the basic structure doctrine. The story ended in 1978, when the 44th Amendment removed Article 19(1)(f) and Article 31 and placed a new, softer provision, Article 300A, in Part XII: "No person shall be deprived of his property save by authority of law." So today property is a constitutional (legal) right, not a Fundamental Right.

The basic structure doctrine says that Parliament's power to amend under Article 368 is wide but not unlimited: it cannot change the "identity" of the Constitution. There is no official list; the courts have named features such as supremacy of the Constitution, the republican and democratic form, secularism, federalism, separation of powers, judicial review, free and fair elections, rule of law and the balance between Fundamental Rights and Directive Principles. A Uniform Civil Code has never been named as a basic feature.

The last three Articles of Part III answer one question: who can change how Fundamental Rights work? The answer is always Parliament, never the President by himself and never a State Legislature. Article 33 lets Parliament restrict or even take away certain Fundamental Rights of members of the armed forces, the police and other forces charged with maintaining public order, and intelligence agencies, so that discipline is not weakened. Article 34 allows restrictions on Fundamental Rights while martial law is in force in an area, and lets Parliament protect ("indemnify") an officer who acted to restore order there. Article 35 gives Parliament alone the power to make laws for giving effect to certain Fundamental Rights (such as Articles 16(3), 32(3), 33 and 34) and to prescribe punishment for acts declared offences in Part III.

The relation between the two has changed with time. In State of Madras v. Champakam Dorairajan (1951) the Court said that Directive Principles must run as subsidiary to Fundamental Rights. After the 25th, 42nd and 44th Amendments and the cases of Kesavananda Bharati (1973) and Minerva Mills (1980), the Court's settled view is that the two are like the two wheels of a cart: harmony and balance between them is part of the basic structure. That is why a Directive Principle can be used to read a Fundamental Right more widely (for example, Article 21 has grown by using Articles 39, 41 and 42), but a Directive Principle alone cannot take a Fundamental Right away.