Fundamental Rights (Part III: Articles 12-35)

For the purpose of enforcing Fundamental Rights, Article 12 defines 'State' broadly to include:

• Government and Parliament of India: Executive and Legislative organs of the Union government.
• Government and Legislature of States: Executive and Legislative organs of the state governments.
• All Local Authorities: Municipalities, Panchayats, District Boards, Improvement Trusts.
• Other Authorities – Judicial Interpretation: This is the most crucial and expansive part.
  • Tests for 'Other Authorities' (Ajay Hasia case, 1981): Financial control by government, functional character being governmental, deep and pervasive state control, monopoly status conferred by state, department of government transferred to corporation.
  • Examples considered 'State': LIC, ONGC, SAIL, universities, Electricity Boards, statutory corporations, even private bodies discharging public functions (e.g., through government funding or deep state control).
  • Example Not 'State': BCCI (Board of Control for Cricket in India) has been held not to be 'State' as it is not financially, functionally or administratively dominated by the government.

Significance of wide definition:

Ensures a broad range of governmental and quasi-governmental bodies are accountable for rights violations, preventing the state from escaping obligations by acting through seemingly non-governmental entities.

Article 13 explicitly declares that all laws inconsistent with or in derogation of Fundamental Rights shall be void. This provides the explicit constitutional basis for Judicial Review in India.

Definition of 'Law' (Art 13(3)):

• Includes any Ordinance, order, bye-law, rule, regulation, notification, custom, or usage having the force of law.
• Ensures all forms of governmental action and legal precedents are subject to judicial review.

• Doctrine of Severability: If an unconstitutional part of a law can be separated without affecting the rest, only that part is struck down.
• Doctrine of Eclipse: A pre-constitutional law inconsistent with an FR becomes inoperative (eclipsed) but not dead. It revives if the FR is removed/amended.
• Doctrine of Waiver: A person cannot voluntarily give up their Fundamental Rights; they are for public policy.

Article 13(4) (added by 24th Amendment, 1971): States "Nothing in this article shall apply to any amendment of this Constitution made under Article 368."

The 'Constitutional Amendments as 'law' debate:

• Shankari Prasad (1951) & Sajjan Singh (1965): SC held constitutional amendment is NOT a 'law' under Art 13; Parliament can amend FRs.
• Golaknath case (1967): SC reversed, held constitutional amendment IS a 'law' under Art 13; Parliament CANNOT abridge FRs.
• 24th Amendment Act, 1971: Parliament explicitly declared constitutional amendments are NOT 'laws' under Art 13, restoring its power.
• Kesavananda Bharati case (1973): SC upheld 24th Amendment's validity, but introduced the 'Basic Structure Doctrine'. Parliament can amend any part, but cannot alter the 'Basic Structure' of the Constitution. Established balance between parliamentary sovereignty and judicial supremacy.

Article 14: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." Available to all persons.

Article 15: "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them." Available only to citizens.

Article 16: "There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State." Available only to citizens.

Article 17: "Untouchability' is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of 'Untouchability' shall be an offence punishable in accordance with law."

• Meaning: Not defined in Constitution; interpreted by Courts as historical social disabilities based on caste. Covers direct and indirect practice.
• Offence punishable by law: Protection of Civil Rights Act, 1955; SC/ST (Prevention of Atrocities) Act, 1989.
• Available against State and private individuals: Unique feature.

Article 18: "No title, not being a military or academic distinction, shall be conferred by the State."

• Prohibits titles by State (except military/academic).
• Prohibits citizens accepting foreign titles.
• National Awards (Bharat Ratna, Padma Awards): Balaji Raghavan case (1996) upheld validity, but ruled they should not be used as prefixes/suffixes.

Article 19 guarantees six fundamental freedoms to all citizens. Available only to citizens. Suspended only during National Emergency declared on grounds of war or external aggression (Art 358).

• Art 19(1)(a): Freedom of Speech and Expression:
  • Scope: Freedom of press, RTI, Right to silence, Commercial speech, Right against pre-censorship.
  • Restrictions (Art 19(2)): Sovereignty/integrity, security of state, friendly relations, public order, decency/morality, contempt of court, defamation, incitement to offence.
  • Sedition Law (IPC Sec 124A): SC put in abeyance (May 2022). BNS proposes replacement.
  • Recent trends: Hate speech, fake news regulation.
• Art 19(1)(b): Freedom of Assembly (peaceful and unarmed):
  • Restrictions (Art 19(3)): Sovereignty/integrity, public order. (Sec 144 CrPC often debated).
• Art 19(1)(c): Freedom to form Associations or Unions or Co-operative Societies:
  • Co-operative societies added by 97th Amendment.
  • Restrictions (Art 19(4)): Sovereignty/integrity, public order, morality.
  • Right to strike NOT a fundamental right.
• Art 19(1)(d): Freedom of Movement throughout territory of India:
  • Restrictions (Art 19(5)): Interests of general public, protection of interests of STs.
• Art 19(1)(e): Freedom to Reside and Settle in any part of India:
  • Restrictions (Art 19(5)): Same as movement.
• Art 19(1)(g): Freedom to Practice any Profession, or to carry on any Occupation, Trade or Business:
  • Restrictions (Art 19(6)): Interests of general public, professional/technical qualifications, state monopoly.

Article 20 protects accused persons. Available to citizens and non-citizens. CANNOT be suspended even during emergency.

• No Ex-post-facto Law (Art 20(1)): No conviction for acts not illegal at time of commission. (Applies only to criminal laws).
• No Double Jeopardy (Art 20(2)): No prosecution/punishment for same offence more than once. (Applies only to judicial proceedings).
• No Self-incrimination (Art 20(3)): No compulsion to be a witness against oneself.
  • Scope: Covers oral/documentary evidence.
  • Narco-analysis, brain mapping, polygraph tests: Selvi vs State of Karnataka (2010) held involuntary administration violates Art 20(3).

Article 21: "No person shall be deprived of his life or personal liberty except according to procedure established by law." Available to all persons. CANNOT be suspended even during emergency.

Evolution of Interpretation:

• A.K. Gopalan case (1950): Narrow interpretation. 'Procedure established by law' meant law duly enacted, regardless of fairness. Rejected 'due process of law'.
• Maneka Gandhi case (1978): Wide interpretation. Overruled Gopalan. 'Procedure established by law' must be fair, just, and reasonable. Implicitly introduced 'due process' concept. Vastly expanded scope of Art 21.

Expanding Horizons of Article 21 – Implied Rights:

• Right to live with human dignity (Francis Coralie Mullin).
• Right to a decent environment, livelihood, shelter, health.
• Right to Privacy (K.S. Puttaswamy case, 2017): Declared a fundamental right.
• Right to free legal aid, speedy trial, against inhuman treatment.
• Right to travel abroad, against bonded labour.
• Right to choose a life partner (Hadiya case).
• Right to sleep, Right to be forgotten (emerging).

Current debates – Euthanasia:

• Aruna Shanbaug case (2011): SC rejected active, allowed passive euthanasia under strict guidelines.
• Common Cause case (2018): SC upheld right to dignified death and recognized 'living wills' for passive euthanasia with safeguards.

Article 21A: "The State shall provide free and compulsory education to all children of the age of six to fourteen years..." Added by 86th Amendment, 2002.

• Made education a Fundamental Right.
• RTE Act, 2009: Implemented Art 21A. Mandates free & compulsory education (6-14 yrs), minimum norms, 25% EWS reservation in private unaided schools.
• Challenges: Teacher shortage, infrastructure, quality, absenteeism.

Article 22 grants protection to persons arrested or detained.

Rights under Ordinary Law (Art 22(1) & (2)):

• Right to be informed of grounds of arrest.
• Right to consult and be defended by legal practitioner.
• Right to be produced before magistrate within 24 hours (excluding journey).
• Right to be released after 24 hours unless magistrate authorizes.
• Not applicable to enemy alien or person under preventive detention law.

Preventive Detention (Art 22(4) to (7)):

• Detention without trial on suspicion to prevent crime.
• Safeguards: Detention not to exceed 3 months unless Advisory Board (HC judges) reports sufficient cause.
• Right to be informed of grounds (unless against public interest).
• Right to make representation.
• Parliament's power to prescribe circumstances, maximum period.
• Laws: NSA, COFEPOSA, UAPA provisions. Debates on misuse.

Article 23: "Traffic in human beings and begar and other similar forms of forced labour are prohibited..."

• 'Traffic in human beings': Selling/buying people, forced prostitution, slavery.
• 'Begar': Forced labour without payment.
• 'Other similar forms of forced labour': Includes bonded labour.
• Available against State and private individuals.
• Exception: Compulsory service for public purposes (military, social service) without discrimination (Art 23(2)).
• Legislative Measures: Immoral Traffic (Prevention) Act, Bonded Labour System (Abolition) Act.

Article 24: "No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment."

• Prohibition of employment of children below 14 in factories, mines, hazardous employments.
• Child Labour (Prohibition and Regulation) Amendment Act, 2016: Complete ban on employment of children below 14 in ALL occupations; bans adolescents (14-18) in hazardous occupations.

Article 25: "Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion." Available to all persons.

• Includes: Freedom of conscience, right to profess, practice, and propagate.
• 'Propagation' does NOT include right to convert another person by force, fraud, or allurement (Rev. Stainislaus case, 1977).
• Subject to public order, morality, health, and other FRs.
• State's power (Art 25(2)): Regulate/restrict secular activities associated with religion; provide for social welfare/reform; throw open Hindu religious institutions to all sections (Hindus include Sikhs, Jains, Buddhists).
• Debates: Essential Religious Practices doctrine (Shirur Mutt case), Hijab controversy, entry of women in Sabarimala.

Article 26: Guarantees collective freedom of religion to religious denominations (establish/maintain institutions, manage affairs, own/acquire property, administer property).

• Subject to public order, morality, and health.
• Difference: Art 25 (individual right) vs. Art 26 (collective right).

Prohibits compelling payment of taxes for promotion/maintenance of any particular religion. State cannot spend public money (collected through tax) for promotion of any particular religion.

• Distinction between 'tax' and 'fee': Fees can be levied for secular administration of religious institutions.

• No religious instruction in educational institutions wholly maintained out of State funds (Art 28(1)).
• Allowed in institutions administered by State but established under endowment/trust requiring it (Art 28(2)).
• Voluntary attendance: No person attending State-recognised or State-aided institution required to attend religious instruction/worship without consent (Art 28(3)).

• Art 29(1): Any section of citizens having a distinct language, script or culture shall have the right to conserve it. (Scope not limited to minorities only).
• Art 29(2): No citizen shall be denied admission into any educational institution maintained by the State or receiving aid on grounds only of religion, race, caste, language.

• Art 30(1): All minorities (religious/linguistic) have right to establish and administer educational institutions of their choice.
• Art 30(1A): Compensation for compulsory acquisition of property of minority educational institution (44th Amendment).
• Art 30(2): State shall not discriminate in granting aid to educational institutions managed by a minority.
• Meaning of 'Minority': Not defined in Constitution. TMA Pai Foundation (2002) ruled linguistic minorities at State level, religious minorities at national level.
• Extent of regulatory power of State: State can impose reasonable regulations for academic standards, management (TMA Pai, P.A. Inamdar, St. Stephen's College cases). National Commission for Minority Educational Institutions (NCMEI) established.

• Original Provisions: Guaranteed as Fundamental Right under Art 19(1)(f) and Art 31.
• Conflicts: Became a major hurdle for land reforms and implementing DPSPs.
• Amendments: 1st, 4th, 17th, 25th, 42nd Amendments were introduced to overcome judicial hurdles.
• Present Status: 44th Constitutional Amendment Act, 1978, repealed it from FRs. Shifted to Part XII, Article 300A, as a Legal/Constitutional Right.
  • Implication: Deprivation by law is allowed. State not obligated to pay market value compensation. Not enforceable under Art 32.

Added by 1st Amendment Act, 1951. Protects five categories of laws (primarily agrarian reforms, nationalization) from challenge on grounds of violation of Article 14 and 19.

Added by 1st Amendment Act, 1951. Validates specific Acts/Regulations in Ninth Schedule from FR contravention.

• I.R. Coelho case (2007): Laws placed in 9th Schedule after April 24, 1973 (Kesavananda date) are subject to judicial review if they violate 'Basic Structure'. Laws before this date generally remain immune.

Added by 25th Amendment Act, 1971.

• Original Provision: Protected laws implementing Article 39(b) and (c) from challenge under Articles 14, 19, or 31.
• 42nd Amendment (1976): Extended to all DPSPs.
• Minerva Mills case (1980): SC struck down the extension (42nd Amend) as unconstitutional, destroying Basic Structure.
• Current Position: Art 31C only protects laws implementing Art 39(b) and (c) from challenge under Articles 14 and 19. These two DPSPs have primacy over Art 14 and 19.

Art 32(1): Guarantees the right to move the Supreme Court for enforcement of FRs.

Art 32(2): Empowers SC to issue directions or orders or writs for enforcement of FRs.

Writs Issued by SC:

• Supreme Court (Art 32): Only for FR enforcement. Original but not exclusive.
• High Court (Art 226): For FR enforcement AND any other purpose (e.g., legal rights). HC's jurisdiction is wider in 'other purposes'.

• Locus Standi: Traditionally, only aggrieved person could approach court.
• PIL: Relaxed locus standi, allowing public-spirited individuals/organizations to approach court for others (especially marginalized). Vastly expanded access to justice.

President can suspend the right to move any court for FR enforcement (including Art 32 itself) during National Emergency (Art 359), EXCEPT for enforcement of Articles 20 and 21.

Parliament can restrict or abrogate FRs of members of armed forces, paramilitary forces, police, intelligence agencies, etc., for proper discharge of duties and maintenance of discipline.

Provides for restriction of FRs when martial law (military rule) is in force in any area. Parliament can indemnify acts done to restore order during martial law.

Parliament has exclusive power to make laws for giving effect to certain specified FRs (e.g., Art 16(3), 32(3), 33, 34, punishment for Art 17, 23 violations). Ensures uniformity of enforcement.