Fundamental Rights: Digital Explorer

Fundamental Rights are not uniformly available to all. Some are exclusive to citizens, while others extend to all persons, including foreigners (with exceptions for enemy aliens).

Legal persons like corporations may also avail some FRs (e.g., aspects of Art 14).

Fundamental Rights are not unlimited. The state can impose reasonable restrictions on their enjoyment.

Rationale: To balance individual liberty with social control, public order, national security, sovereignty and integrity of India, morality, decency, friendly relations with foreign states, etc.

Reasonableness of Restrictions: Subject to judicial review. Courts decide if a restriction is arbitrary, excessive, and has a rational nexus with the objective.

Many FRs are phrased as prohibitions on the State (negative obligations), while some confer specific rights or privileges (positive obligations).

• Negatively Worded (Limitations on State): E.g., Article 14 ("The State shall not deny..."), Article 15(1) ("The State shall not discriminate..."), Article 20 ("No person shall be convicted...").
• Positively Worded (Conferring Privileges/Rights): E.g., Article 19 (guarantees six freedoms), Article 21A (State shall provide free and compulsory education), Article 25 (all persons are equally entitled to freedom of conscience...).

A key feature: an aggrieved individual can directly approach the Supreme Court (under Article 32, itself a Fundamental Right) or a High Court (under Article 226) for enforcement.

Courts can issue writs (Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo Warranto) for this purpose.

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

Article 32 empowers the SC to enforce FRs. Its jurisdiction under Article 32 cannot be suspended except as otherwise provided by the Constitution (e.g., during National Emergency for some rights).

Parliament can curtail or repeal FRs through a Constitutional Amendment Act (under Article 368).

Limitation: Subject to the 'Basic Structure' doctrine (Kesavananda Bharati case, 1973). Parliament cannot amend the Constitution to destroy or abrogate its 'basic features', and the core essence of FRs is considered part of the basic structure.

Example: Right to Property (Art 31) was repealed as an FR by 44th Amendment Act, 1978, and made a legal right (Art 300-A), permissible as it didn't violate basic structure.

FRs can be suspended during a National Emergency (Article 352).

• Article 358: Six freedoms under Article 19 are automatically suspended if emergency is on grounds of war or external aggression (not armed rebellion).
• Article 359: President can suspend the right to move any court for enforcement of other FRs.

Crucial Exception (44th Amendment, 1978):

The rights guaranteed by Article 20 (protection in respect of conviction for offences) and Article 21 (protection of life and personal liberty) cannot be suspended even during a National Emergency.

These articles were added/modified to save certain laws from being challenged on FR violation grounds, primarily for agrarian reforms and socio-economic justice.

• Article 31A: Saves laws for acquisition of estates, etc., from challenge under Art 14 and 19.
• Article 31B: Protects laws in the Ninth Schedule from judicial review on FR grounds (subject to I.R. Coelho case, 2007, for post-1973 laws).
• Article 31C: Saves laws giving effect to certain Directive Principles (Art 39(b) and (c)) from challenge under Art 14 and 19.

Article 33 empowers Parliament to restrict or abrogate FRs of members of armed forces, para-military forces, police forces, intelligence agencies, and analogous forces.

Objective: To ensure proper discharge of duties and maintenance of discipline. This power is exclusively with Parliament.

Article 34 provides for restriction of FRs during martial law.

Parliament can indemnify any person for acts done in connection with maintaining/restoring order in such areas and validate actions taken under martial law.

Most FRs are directly enforceable. However, some require specific parliamentary legislation to be effective or to prescribe punishments.

Article 35: Gives Parliament exclusive power to make laws for matters like:

• Prescribing residence for employment (Art 16(3)).
• Empowering courts other than SC/HCs to issue writs (Art 32(3)).
• Restricting/abrogating FRs for armed forces (Art 33).
• Indemnifying for acts during martial law (Art 34).
• Prescribing punishment for offences under Part III (e.g., untouchability Art 17, forced labour Art 23).

Laws made under Art 35 are uniform throughout India.

• Bedrock of Democracy: Establish government of laws, prevent authoritarianism.
• Individual Dignity: Uphold worth of every individual.
• Promote Equality and Social Justice: Combat discrimination, historical injustices.
• Facilitate Political Participation: Freedoms under Art 19 crucial for informed public opinion.
• Minority Protection: Special rights (Art 29, 30) foster inclusivity.
• Foundation for Rule of Law: Ensure state acts within legal limits.

• Necessity: Balances individual rights with societal interests and state security; prevents anarchy.
• Potential for Misuse: Subjective "reasonable" term can lead to undue curtailment.
• Role of Judiciary: Judicial review of "reasonableness" is crucial safeguard against arbitrary restrictions (proportionality, rational nexus).

• Judiciary, especially SC, has played transformative role in expanding scope.
• Article 21 (Right to Life and Personal Liberty): Expansively interpreted to include right to dignity, privacy, clean environment, speedy trial, legal aid, education, health, etc.
• Judicial activism makes FRs dynamic and responsive.

• Historically: FRs (justiciable) > DPSPs (non-justiciable).
• Judiciary moved to harmonious construction: both complementary, aim for social welfare state.
• Amendments like Art 31C aimed primacy for some DPSPs over FRs, leading to judicial scrutiny (Kesavananda, Minerva Mills). Current position is largely one of balance.

• Doctrine ensures Parliament's power to amend FRs is not absolute.
• Core/essence of FRs cannot be destroyed.
• Crucial in preserving democratic and rights-based character of Constitution against potential legislative overreach.

• Socio-economic inequalities: Poverty, illiteracy hinder effective enjoyment.
• Implementation gaps: Weak enforcement, delays in justice.
• State excesses/violations: Police brutality, misuse of laws (sedition, UAPA).
• Balancing national security with individual liberties remains a constant challenge.

Ongoing discussions and legal challenges related to data protection (Digital Personal Data Protection Act, 2023), surveillance, and use of AI, all impacting the right to privacy judicially recognized under Article 21.

Debates on regulation of social media, "fake news," hate speech, sedition law (Section 124A IPC – Law Commission recommended its retention with safeguards, but government is also introducing new criminal laws which might have different provisions). The new Broadcasting Services (Regulation) Bill, 2023, also has implications for free speech.

Judicial observations on balancing the right to protest with public order and free movement of others, especially in context of farmers' protests or other large-scale agitations.

The push for UCC brings into focus Article 14 (Equality), Article 15 (Non-discrimination), and Articles 25-28 (Freedom of Religion), and how these FRs would interact with a uniform code.

In Supriyo @ Supriya Chakraborty & Anr. vs Union of India, the SC declined to grant legal recognition to same-sex marriages, leaving it to Parliament. However, the judgment extensively discussed FRs like equality (Art 14), non-discrimination (Art 15), dignity and liberty (Art 21), and freedom of expression (Art 19) in the context of LGBTQ+ rights, even if not directly granting marriage equality. This shows how FRs are central to evolving social issues. (Source: Supreme Court Judgment, Oct 2023)