← Back to Subjects ororo.world

Chapter 8: Fundamental Rights

In the winter of 1975, the Supreme Court of India heard an argument about a single question: when the government locks a person up, may a court ask why?

A national Emergency had been proclaimed in June 1975. The government had suspended the citizen’s ability to move the courts for the enforcement of certain rights, and had detained large numbers of people without trial. Across the country, High Courts began entertaining petitions of habeas corpus — the ancient order by which a judge commands the jailer to produce the prisoner and justify the detention. The Union government appealed. It argued that during an Emergency, a detained person had no standing even to ask a court to look at the file.

The case, decided in April 1976, is remembered as ADM Jabalpur v. Shivkant Shukla. Four of the five judges accepted the government’s argument. One did not. Justice H. R. Khanna wrote a lone dissent, holding that the state could not take a life or liberty without lawful authority even in an Emergency. He was the senior-most judge in line to become Chief Justice of India. In January 1977, he was passed over, and he resigned.

Within two years the Constitution itself was amended. The Forty-fourth Amendment, 1978, laid down that Article 20 and Article 21 can never be suspended, in any Emergency, for any reason.

Diagram

Fig. 8.0-1 Caption: The six Fundamental Rights guaranteed by Part III of the Constitution of India. Brief: A clean horizontal band divided into six labelled panels, left to right: Right to Equality (Articles 14–18); Right to Freedom (Articles 19–22); Right against Exploitation (Articles 23–24); Right to Freedom of Religion (Articles 25–28); Cultural and Educational Rights (Articles 29–30); Right to Constitutional Remedies (Articles 32–35). Beneath the band, a single arrow from all six panels pointing to a box labelled ‘Enforceable in the Supreme Court and the High Courts’. No portraits, no flags, no decorative borders.

NoteCuriosity Corner

Q1. What makes a right ‘fundamental’, when a citizen also holds many other legal rights? Q2. If a right is written into the Constitution, who decides what its words actually mean? Q3. Can the state ever treat two groups of citizens differently and still be said to be treating them equally? Q4. Is any Fundamental Right absolute, or may all of them be restricted? Q5. What can an ordinary citizen actually do, on a working day, when a Fundamental Right is violated? This chapter answers each of these questions.

8.1 What Fundamental Rights Are

Every constitution has to answer a hard question. A government must be strong enough to keep order, collect taxes and defend the country. But a government strong enough to do those things is also strong enough to silence a critic, seize a printing press or hold a person in a cell without telling anyone why.

The framers of the Indian Constitution answered that question by writing a list. They set down, in Part III of the Constitution, a set of guarantees that the government itself may not take away by ordinary law. These are the Fundamental Rights — the basic rights of the individual that the Constitution guarantees and the courts enforce.

Before we study each of them in detail, we need to be clear about what a right is, and about what the word ‘fundamental’ is doing in that phrase.

8.1.1 The Meaning Of A Right

A right is a claim that a person can make on society and on the state, which society and the state are expected to recognise and honour. The word ‘claim’ matters. A right is not merely a wish or a need; it is a demand that others are under a duty to respect.

This means every right carries a matching duty. If a citizen has a right to speak, the state has a duty not to gag her, and other citizens have a duty not to shout her down by force. A right without a corresponding duty on somebody else is only a hope.

Rights are also social. The British political thinker Harold J. Laski argued that rights are the conditions of social life without which no person can seek to be at his or her best. On this view, rights are not luxuries added after a society is built; they are the ground on which a person becomes capable of a full human life.

Two further points follow from this. First, rights are claimed against power — most often against the power of the state, because the state is the strongest actor a citizen ever faces. Second, rights protect the individual’s dignity: they mark out the space in which a person may think, worship, work and speak without asking permission.

Do Rights Belong To Us, Or Are They Given To Us? Claim: Rights are inherent in being human, and law only recognises them. Reasons: We call slavery wrong even where law once allowed it, which suggests a standard above law. Strongest objection: A claim no authority will enforce protects nobody; in practice rights exist only where law creates a remedy. What it turns on: Whether ‘having a right’ means holding a moral claim or holding an enforceable one.

8.1.2 Kinds Of Rights

Not all rights are of the same kind. They differ in their source, in who enjoys them, and in whether a court will enforce them. Five kinds are usually distinguished, and each of the later kinds narrows the field a little.

Natural rights are rights said to belong to a person simply by virtue of being human, and not by grant of any government. Thinkers who defend them argue that such rights existed before the state and are not created by it; the right to life is the standard example. Law, on this view, recognises natural rights but does not manufacture them.

Human rights are the rights held by every person everywhere, irrespective of nationality, religion, race, sex or social position. They are set out in the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations in 1948. The United Nations is the world body founded in 1945 in which almost all states are represented.

Civil rights are the rights that a particular country confers on the people within it, through its constitution or its ordinary laws. Because they come from a national legal system, they differ from country to country, while human rights are claimed universally.

Constitutional rights are those civil rights that a country writes into its constitution rather than into an ordinary statute. This matters because a constitution is harder to change than an ordinary law. In India, some rights sit in the Constitution but outside Part III — the right to property, for instance — and these do not carry the special protection of Part III.

Fundamental Rights are the constitutional rights placed in Part III of the Constitution and made enforceable in court. They are the narrowest of the five categories and the strongest in effect. Some of them are guaranteed to citizens alone; others are available to every person in India, including foreigners.

We can see the relationship between these categories as a set of narrowing circles, as shown in Fig. 8.1-1.

Diagram

Fig. 8.1-1 Caption: Fundamental Rights are the narrowest and best protected class of rights. Brief: Four nested rectangles, largest to smallest, each labelled and captioned in one short line: ‘Human and natural rights — claimed by all persons, everywhere’; ‘Civil rights — conferred by the law of one country’; ‘Constitutional rights — written into that country’s Constitution’; ‘Fundamental Rights — placed in Part III and enforceable in court’. Label the innermost rectangle in the heaviest weight. No icons or ornament.

8.1.3 Why Some Rights Are Called Fundamental

An Indian citizen holds hundreds of legal rights. She has a right to be paid the wage agreed in her contract, a right to sue a shopkeeper who sells her a defective machine, and a right to inherit her share of family property. None of these is a Fundamental Right. What separates the short list in Part III from the rest?

Two features do the work, and they must be taken together.

First, Fundamental Rights are guaranteed by the Constitution. This means they cannot be removed or cut down by an ordinary law passed by Parliament or a State Legislature. A law that takes away a Fundamental Right is void. To alter these rights at all, the Constitution itself must be amended, by the special procedure the Constitution lays down.

Second, Fundamental Rights are justiciable. A justiciable right is one that a person can enforce by going to a court, which can order a remedy if the right has been violated. If a Fundamental Right is infringed, the individual may move the Supreme Court directly, or a High Court, and the court can strike down the offending law or order.

A right that is guaranteed but not justiciable is a promise; a right that is justiciable but not guaranteed can be withdrawn tomorrow by a fresh statute. The rights in Part III are both, and that is what makes them fundamental.

Q1. What makes a right ‘fundamental’, when a citizen also holds many other legal rights?

A. Two features together: the right is guaranteed by the Constitution, so ordinary law cannot remove it, and it is justiciable, so a court will enforce it.

We can set the contrast out side by side, as in Table 8.1, but the table should be read only after the explanation above, not instead of it.

Table 8.1 — Fundamental Rights And Ordinary Legal Rights Compared Caption: The two differ in where they come from and in what it takes to take them away. | Basis | Fundamental Rights | Ordinary legal rights | |—|—|—| | Source | Part III of the Constitution | An ordinary statute or the common law | | How they can be curtailed | Only by amending the Constitution, and subject to judicial scrutiny | By a fresh law passed in the ordinary way | | Remedy for violation | Direct petition to the Supreme Court or a High Court | The ordinary courts, in the ordinary course | | Whom they bind | Mainly the state, and in some cases private persons too | Whoever the statute names | Flattens: The grid suggests a clean line, but the boundary has moved over time — the right to property once sat in the left column and now sits in the right.

The neatness of the distinction should not mislead us. Which rights belong in Part III was a political decision taken by the Constituent Assembly, and it has been revisited since. The chapter that follows examines each of these rights in turn, and each of them turns out to be more argued over than a bare list of Articles would suggest.

Q. If Fundamental Rights bind the state, are they of any use against a private employer?

A. For most of the rights, no — they are claimed against the state. But a few, such as the abolition of untouchability and the prohibition of forced labour, operate against private persons as well.

8.2 The Fundamental Rights In The Constitution

8.2.1 Part III And The Six Rights

The Fundamental Rights are set out in Part III of the Constitution, in Articles 12 to 35. Part III is sometimes called the Bill of Rights of the Indian Constitution, on the analogy of similar charters elsewhere.

The rights are grouped under six heads. The Right to Equality runs from Article 14 to Article 18. The Right to Freedom runs from Article 19 to Article 22. The Right against Exploitation is contained in Articles 23 and 24. The Right to Freedom of Religion covers Articles 25 to 28. The Cultural and Educational Rights are in Articles 29 and 30. The Right to Constitutional Remedies is in Articles 32 to 35.

The list originally had seven heads. The Right to Property, then in Article 31, was removed from Part III by the Forty-fourth Amendment Act, 1978, for reasons examined later in this chapter.

Articles 12 and 13 stand at the head of Part III and do not themselves confer a right. They are definitional Articles: one tells us whom these rights are claimed against, and the other tells us what happens to a law that violates them. Everything else in Part III depends on these two.

8.2.2 The Distinctive Features Of India’s Fundamental Rights

Read together, the Indian scheme of Fundamental Rights has a character of its own, and it is worth setting out before the detail begins.

Enumerated, Not Natural

The Constitution guarantees the rights it names. It does not recognise a general category of unenumerated or natural rights standing outside Part III. What a person in India can enforce as a Fundamental Right is what Part III, as interpreted by the courts, contains.

That last phrase carries real weight. The Supreme Court has read several rights into the broad language of existing Articles, so the practical content of Part III today is wider than a reading of the bare text in 1950 would suggest.

Largely Civil And Political

Part III protects civil and political liberties — equality, speech, movement, worship, protection against arbitrary arrest. It does not, in its own terms, guarantee a right to work, a right to health or a right to social security. Those claims appear elsewhere in the Constitution, as directions to the state rather than as enforceable rights.

Whether this was the right choice is a genuine and continuing argument. One side holds that only claims a court can enforce should be called rights; the other holds that a right to speak means little to a person who cannot eat.

Qualified, Not Absolute

Almost every Fundamental Right is subject to limits stated in the Constitution itself. The same Article that grants a freedom usually goes on to permit the state to impose restrictions in the interest of public order, decency, morality, health or the security of India.

There is one striking exception in form. Article 17 abolishes untouchability and forbids its practice in any form, and attaches no permitted restriction to that command.

Amendable, Within Limits

Fundamental Rights can be altered by a constitutional amendment, and Parliament has amended them on several occasions. But that power is not unlimited. In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court held that Parliament may amend the Constitution but may not damage or destroy its basic structure.

Suspendable — With Two Exceptions

During a Proclamation of Emergency, the President may by order suspend the right to move the courts for the enforcement of specified Fundamental Rights, for the period the Emergency is in force. The Forty-fourth Amendment Act, 1978 placed Article 20 and Article 21 wholly outside this power, so protection against arbitrary punishment and the right to life and personal liberty cannot be suspended at all.

Special Provisions For Particular Groups

Part III does not treat identical treatment as the whole of equality. It expressly permits the state to make special provision for women and children and for socially and educationally backward classes, and it guarantees minorities the right to conserve their language, script and culture and to run their own educational institutions.

8.2.3 Whom The Rights Bind: The Meaning Of ‘State’ (Article 12)

A Fundamental Right is, in the main, a claim against public power. So the Constitution has to say what counts as public power. Article 12 supplies the definition that governs the whole of Part III, and it is drawn deliberately wide.

Source 8.1 — Article 12 Of The Constitution Of India From: The Constitution of India, Part III, Article 12, as adopted on 26 November 1949 and in force from 26 January 1950. “In this Part, unless the context otherwise requires, ‘the State’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.” Discuss: Why does the Article use the word ‘includes’ rather than ‘means’?

Four categories emerge from this text. The first is the Union government and Parliament, that is, the executive and the legislature at the Centre. The second is the government and legislature of each State. The third is local authorities — municipal corporations, panchayats (elected village-level councils), district boards and similar bodies. The fourth is ‘other authorities’ within India or under the control of the Government of India.

The last category has done a great deal of work. Because Article 12 says ‘includes’ and not ‘means’, the courts have treated the list as open-ended, and have brought within it statutory bodies and other agencies that carry out functions of the state. The effect is that a citizen may claim a Fundamental Right against a wide range of public bodies, not only against a minister.

The other side of the definition matters just as much. A body that is not the State under Article 12 cannot ordinarily be sued for breach of most Fundamental Rights. Where a private person interferes with a citizen’s freedom, the remedy usually lies in the ordinary law, not in Part III — with the specific exceptions noted earlier.

8.2.4 Laws Inconsistent With Fundamental Rights (Article 13)

A guarantee is only as good as its consequence. Article 13 supplies the consequence: a law that takes away or abridges a Fundamental Right is void to the extent of the inconsistency. This applies both to laws already in force when the Constitution began and to laws made afterwards.

Article 13 Says: Laws inconsistent with the Fundamental Rights are void to the extent of the inconsistency. Does: It converts the guarantees in Part III into a test that every law must survive, and gives courts the authority to apply that test. Leaves open: Who decides how far a right extends — which is why the meaning of Part III has been settled case by case, and revised.

Article 13 is the textual foundation of judicial review, the power of a court to examine a law and declare it invalid if it conflicts with the Constitution. The power to enforce Fundamental Rights in this way is conferred on the Supreme Court by Article 32 and on the High Courts by Article 226.

The Article also defines ‘law’ broadly for this purpose. It covers permanent statutes made by Parliament and the State Legislatures; temporary laws such as an ordinance, which is a law made by the President or a Governor when the legislature is not in session; delegated instruments such as orders, bye-laws, rules, regulations and notifications; and custom or usage having the force of law.

Q2. If a right is written into the Constitution, who decides what its words actually mean?

A. The courts. Article 13 makes an inconsistent law void, and Articles 32 and 226 let the Supreme Court and the High Courts decide, case by case, how far each right reaches.

One question Article 13 did not settle cleanly was whether a constitutional amendment is itself a ‘law’ that must pass the Part III test. Parliament inserted a clause providing that Article 13 does not apply to amendments made under Article 368. In Kesavananda Bharati, the Supreme Court nevertheless held that an amendment can be struck down if it destroys the basic structure of the Constitution.

This is the point at which a legal question becomes a political one. It asks who has the last word on the rights of citizens: an elected Parliament, or an appointed court.

Who Should Have The Last Word On Fundamental Rights? One view: Parliament is elected and answerable to voters, so it should be able to amend any part of the Constitution. Another view: Rights exist to protect people from majorities, so a court must be able to review even an amendment. What would you need to know to decide?

8.3 The Right To Equality (Articles 14–18)

The Right to Equality is placed first in Part III, and the placing is not accidental. A society in which some people are born to privilege and others to disability cannot be governed as a democracy, because the vote of a person who may not draw water from the village well is worth very little.

Five Articles carry this right. Article 14 lays down the general principle. Articles 15 and 16 apply it to two fields where discrimination was most entrenched — access to public places and services, and public employment. Articles 17 and 18 abolish two specific institutions of inequality, untouchability and titles.

8.3.1 Equality Before Law And Equal Protection (Article 14)

Article 14 is one sentence long, and almost every equality argument in Indian constitutional law begins with it.

Source 8.2 — Article 14 Of The Constitution Of India From: The Constitution of India, Part III, 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.” Discuss: The Article says ‘any person’, not ‘any citizen’. What follows from that choice of word?

Two phrases are joined here, and they are not saying the same thing.

Equality before law means that no person is above the law and that all persons are equally subject to the ordinary law of the land, administered by the ordinary courts. It is a negative idea: it denies special privilege by reason of birth, rank or wealth. This is the sense in which equality is a corollary of the rule of law.

Equal protection of the laws is a positive idea. It means that persons in similar circumstances must be treated alike, both in the benefits conferred and in the burdens imposed by law. It looks not at privilege but at treatment, and it asks whether like cases are being dealt with alike.

Notice that the Article protects ‘any person’. Unlike several other Fundamental Rights, this one is available to non-citizens as well, and to companies and corporations, which the law treats as persons.

Equality Is Not Identical Treatment

Article 14 does not require the state to treat everybody in exactly the same way. That would be neither possible nor just. A law that taxes a person earning ten lakh rupees a year at the same rate as one earning one lakh treats them identically and treats them unfairly.

So the courts have read Article 14 as guaranteeing similarity of treatment, not identity of treatment. The state may classify persons into groups and make different rules for different groups. What it may not do is classify arbitrarily.

Two conditions must be satisfied for such a classification to be valid. First, the group must be marked off by a real and identifiable difference from those left out. Second, that difference must have a rational connection with the purpose the law is trying to achieve. A law giving maternity benefit to women employees satisfies both; a law reserving government jobs for people of one surname satisfies neither.

Three consequences of this reading are worth stating plainly. Equality before law means equality among those similarly situated, not equality between the unequal. Classification of persons into groups is therefore permitted. And the state may set up special courts for particular categories of offences, so long as the basis of separation is reasonable.

Is It Unequal To Treat People Differently? Claim: Equality requires the state to apply the same rule to everyone. Reasons: Any departure lets government pick favourites, which is what Article 14 forbids. Strongest objection: Identical rules applied to unequal starting positions preserve the inequality; equal protection then demands different treatment. What it turns on: Whether equality is measured at the point of treatment or at the point of outcome.

The five Articles fit together as shown in Fig. 8.3-1.

Diagram

Fig. 8.3-1 Caption: The Right to Equality moves from a general principle to specific prohibitions. Brief: A vertical stack of five labelled bars. Top bar, widest: ‘Article 14 — the general guarantee: equality before law and equal protection of the laws’. Below it two bars of equal width: ‘Article 15 — no discrimination in access to public places and facilities’ and ‘Article 16 — equal opportunity in public employment’. Below them two narrower bars: ‘Article 17 — untouchability abolished’ and ‘Article 18 — titles abolished’. A slim side label reading ‘general principle’ beside the top bar and ‘specific applications’ beside the rest.

8.3.2 Prohibition Of Discrimination (Article 15)

Article 15 takes the general principle and names the grounds on which the state may not act. The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them.

The word ‘only’ is doing precise work. It means discrimination is forbidden where one of these five grounds is the sole basis of the differential treatment. A rule that excludes candidates below a stated height may affect the sexes unequally, but it is not based only on sex, and so it must be tested on other reasoning.

The Article then applies the prohibition to everyday life. No citizen may be denied, on those grounds, access to shops, public restaurants, hotels and places of public entertainment; or the use of wells, tanks, bathing ghats (steps leading down to a river or tank), roads and places of public resort maintained wholly or partly out of state funds or dedicated to the general public.

Protective Discrimination

Article 15 then does something that looks at first like a contradiction. It permits the state to make special provision for women and children, and for the advancement of any socially and educationally backward classes of citizens, or for the Scheduled Castes and the Scheduled Tribes.

This is called protective discrimination — the making of special provision in favour of disadvantaged groups so that they can compete on more equal terms. It is not an exception grudgingly allowed; it follows from the reading of Article 14 set out above. If equal protection requires like treatment for like cases, it also permits unlike treatment for unlike cases.

The state may also make special provision for the advancement of backward classes and of the Scheduled Castes and Scheduled Tribes in relation to admission to educational institutions, including private institutions whether aided or unaided by the state, other than minority educational institutions. A later amendment extended special provision to citizens from economically weaker sections.

Q3. Can the state ever treat two groups of citizens differently and still be said to be treating them equally?

A. Yes. Where the groups are genuinely differently placed and the difference is relevant to the law’s purpose, differential treatment is what equal protection requires, not a breach of it.

8.3.3 Equality Of Opportunity In Public Employment (Article 16)

Article 16 applies the same idea to government jobs. It guarantees equality of opportunity for all citizens in matters of employment or appointment to any office under the state, and forbids ineligibility or discrimination on grounds only of religion, race, caste, sex, descent, place of birth or residence.

Government employment matters more in India than the number of posts alone would suggest. It has long carried security, status and a share in the exercise of public power, and exclusion from it has historically tracked caste closely.

The Article carries its own qualifications.

  1. Parliament may make a law prescribing residence within a State as a condition for certain classes of employment in that State.
  2. The state may reserve appointments or posts in favour of any backward class of citizens which, in its opinion, is not adequately represented in the services under the state.
  3. Reservation in matters of promotion, with consequential seniority, may be provided for the Scheduled Castes and the Scheduled Tribes on the same test of inadequate representation.
  4. An office connected with the affairs of a religious or denominational institution may be reserved for members of that religion or denomination.
  5. Reservation may also be made for citizens from economically weaker sections.

The words ‘in the opinion of the State’ and ‘not adequately represented’ are the ones that have been litigated most. They leave to government the judgement of who is backward and how far representation is inadequate, and they leave to the courts the question of how far that judgement can be reviewed.

8.3.4 Abolition Of Untouchability (Article 17)

Untouchability is the practice by which persons of certain castes were treated as ritually polluting, and were excluded from temples, wells, schools, roads and ordinary social contact. Article 17 abolishes it and forbids its practice in any form.

Article 17 Says: Untouchability is abolished and its practice in any form is forbidden. Does: It makes enforcement of any disability arising out of untouchability an offence punishable in accordance with law, and binds private persons, not only the state. Leaves open: The Article does not define untouchability, so its reach in new situations has had to be worked out by Parliament and the courts.

Two features distinguish this Article from most of Part III.

First, it is stated without any permitted restriction. Almost every other Fundamental Right is followed by a clause allowing the state to limit it in the public interest. Article 17 carries no such clause.

Second, it operates horizontally. Most Fundamental Rights are claims against the state; this one is a command addressed to society as well, and a private person who enforces such a disability commits an offence.

Article 35 authorises Parliament to prescribe punishment for the acts forbidden by Article 17. Exercising that power, Parliament enacted the Untouchability (Offences) Act, 1955, which was renamed the Protection of Civil Rights Act, 1955 following amendment in 1976, and later added the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The gap between a constitutional abolition and a social fact is the honest lesson here. A practice sustained by custom over centuries was not ended by a sentence in 1950, and successive laws have been enacted precisely because the prohibition needed enforcement machinery behind it.

8.3.5 Abolition Of Titles (Article 18)

Article 18 forbids the state to confer any title, except a military or academic distinction. It also provides that no citizen of India shall accept a title from any foreign State; that a non-citizen holding an office of profit or trust under the state shall not accept a foreign title without the President’s consent; and that no person holding such an office shall accept a present, emolument or office from any foreign State without that consent.

The target was a specific colonial practice. Under British rule, titles such as Rai Bahadur and Khan Bahadur were conferred on Indians who served the administration, and they created a graded social order backed by the government. A republic that had just abolished the recognition of birth-based rank could not continue to manufacture rank by award.

Two things fall outside the prohibition. Military decorations such as the Param Vir Chakra, the Vir Chakra and the Ashok Chakra are expressly permitted as military distinctions. And the national awards instituted in 1954 — Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri — have been held by the Supreme Court not to be titles within the meaning of Article 18, on the reasoning that they are recognitions of service and are not to be used as prefixes or suffixes to a recipient’s name.

Taken together, Articles 14 to 18 grant the Right to Equality while permitting protective discrimination in its favour. That combination is the distinctive Indian answer to the question this section opened with, and the argument about where the balance should sit has not ended.

Look at any government job advertisement in a newspaper or on an official website. List the categories under which posts are reserved, and note which Article of the Constitution permits each.

8.4 The Right To Freedom (Articles 19–22)

The Right to Freedom is the charter of personal liberty in the Indian Constitution. It occupies four Articles, and they work at two different levels.

Article 19 grants positive liberties — things a citizen may do. Articles 20, 21 and 22 grant protections — limits on what the state may do to a person, especially when it accuses, arrests or punishes. The first is about living freely; the rest are about not being crushed.

8.4.1 The Six Freedoms (Article 19)

Article 19(1) guarantees to all citizens six freedoms:

  1. freedom of speech and expression;
  2. freedom to assemble peaceably and without arms;
  3. freedom to form associations or unions or co-operative societies;
  4. freedom to move freely throughout the territory of India;
  5. freedom to reside and settle in any part of the territory of India;
  6. freedom to practise any profession, or to carry on any occupation, trade or business.

These are guaranteed to citizens alone. A foreign national in India can claim Article 21, but not Article 19.

The list once had seven entries. The freedom to acquire, hold and dispose of property was removed by the Forty-fourth Amendment Act, 1978. The reference to co-operative societies in the third freedom was added by the Ninety-seventh Amendment Act, 2011.

What The Freedoms Cover

Freedom of speech and expression is the widest of the six, because expression takes many forms. It includes publication, and therefore covers the freedom of the press — the liberty of newspapers, broadcasters and other media to gather and circulate information and opinion without prior control by the state. The Constitution does not name the press separately; the courts have read it into Article 19(1)(a).

The Supreme Court has also held that the right to know is part of freedom of expression, since a citizen cannot form or express an informed opinion without access to information. Parliament gave this statutory shape in the Right to Information Act, 2005, under which public authorities must appoint a Public Information Officer and supply information to any citizen who applies for it, subject to stated exemptions. In 2004 the Court held that flying the national flag is itself a form of expression protected by this Article, subject to respect for the flag.

Freedom of assembly and freedom of association are the freedoms that make collective political life possible. A political party, a trade union, a farmers’ organisation and a residents’ welfare association all rest on them. The assembly must be peaceful and unarmed; that qualification is written into the right itself.

Freedom of movement and residence bind the country together as a single political community. A citizen of Kerala may live and work in Nagaland without a permit, and no State may treat citizens of other States as outsiders.

Freedom of profession, occupation, trade and business guarantees that a person’s livelihood is not assigned by birth or by government permission.

Reasonable Restrictions

None of these six freedoms is absolute. Each is followed in Article 19 by a clause permitting the state to impose restrictions, and each clause names the grounds on which restriction is allowed.

Speech and expression may be restricted in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Assembly may be restricted in the interests of the sovereignty and integrity of India and public order. Association may be restricted on those grounds and on grounds of morality. Movement and residence may be restricted in the interests of the general public or for the protection of the interests of any Scheduled Tribe. Profession and trade may be restricted in the interests of the general public, and the state may also prescribe professional or technical qualifications and may itself carry on a business to the exclusion of others.

The word that carries the weight in all of this is ‘reasonable’. A restriction must not be arbitrary, and it must not go beyond what the stated purpose requires. A law that bans a procession on a particular road on a particular day for reasons of traffic and safety is one thing; a law that bans all criticism of a Minister is another. Which restrictions are reasonable is decided by the courts, case by case, and this is where much of India’s free-speech argument has taken place.

Is A Freedom Still A Freedom If It Can Be Restricted? Claim: Reasonable restrictions hollow out Article 19, since the state decides what is reasonable. Reasons: Every listed ground — public order, decency, morality — is broad enough to cover a great deal. Strongest objection: The state proposes the restriction, but a court tests it; an unreasonable one is struck down under Article 13. What it turns on: How strictly courts in fact scrutinise the government’s justification.

Q4. Is any Fundamental Right absolute, or may all of them be restricted?

A. Almost all may be restricted on grounds the Constitution itself states, and the restriction must be reasonable. Article 17 is the striking exception, being stated without any permitted restriction.

8.4.2 Protection In Respect Of Conviction For Offences (Article 20)

Article 20 protects a person against unfair criminal punishment. It is available to citizens and foreigners alike, and to legal persons such as a company. It contains three distinct guarantees.

No Retrospective Criminal Law

No person may be convicted of an offence except for violation of a law in force at the time the act was committed, and no person may be given a penalty greater than the one prescribed by the law in force at that time.

This forbids the ex post facto law in criminal matters — a law that makes an act punishable after it has already been done, or increases the punishment for it afterwards. The principle is simple: a person can only be expected to obey a rule that existed when he acted.

Three limits on this clause should be noted. It applies to criminal law, so a civil liability or a tax may be imposed retrospectively. A change in the jurisdiction of courts or in procedure does not violate it. And it does not extend to preventive detention, which is not punishment for a past offence.

No Double Jeopardy

No person shall be prosecuted and punished for the same offence more than once. Once a court has convicted or acquitted a person on a set of facts, the state may not simply try again in the hope of a better result.

This protection operates only before a court of law or a judicial tribunal. Departmental or administrative proceedings against an employee are not judicial, and so are not barred by this clause.

No Self-Incrimination

No person accused of an offence shall be compelled to be a witness against himself. The state must prove its case; it may not extract the case from the mouth of the accused.

This applies to oral testimony and to documentary evidence, and it applies to criminal proceedings, not to civil ones.

Article 20 is one of the two Articles that cannot be suspended even during an Emergency. The Forty-fourth Amendment Act, 1978 placed it, along with Article 21, beyond the reach of the power to suspend the enforcement of rights.

8.4.3 Protection Of Life And Personal Liberty (Article 21)

Article 21 is the shortest of the great Articles and has generated the largest body of law.

Source 8.3 — Article 21 Of The Constitution Of India From: The Constitution of India, Part III, Article 21. “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Discuss: The Article says nothing about the quality of the procedure. What difference would it make if the word ‘fair’ were added?

Three things follow from the text itself. The Article protects every person, citizen or not. It secures two things, life and personal liberty. And it is claimed against the state as defined in Article 12, so an assault by a private individual is dealt with by the criminal law and not under this Article.

The words ‘procedure established by law’ were read narrowly at first. On that reading, if a law laid down a procedure and the procedure was followed, the requirement of Article 21 was satisfied, whatever the procedure happened to be.

Case 8.1 — Maneka Gandhi And The Meaning Of ‘Procedure’ In 1977 the passport of Maneka Gandhi was impounded by the authorities, who declined to give reasons, saying it was against the public interest to do so. She could not travel abroad and had not been heard before the order was made. She challenged the impounding as a violation of Articles 14, 19 and 21.

In Maneka Gandhi v. Union of India (1978), the Supreme Court held that the procedure contemplated by Article 21 cannot be any procedure whatever. It must be fair, just and reasonable, and not arbitrary or oppressive. The Court also held that Articles 14, 19 and 21 are not watertight compartments; a law depriving a person of liberty must satisfy all of them.

The case turned a promise of legality into a promise of fairness, and it is the doorway through which most of the later expansion of Article 21 passed.

After this reading, the Supreme Court held that the right to life is not merely the right to animal existence. It includes the right to live with human dignity, and thus the things that make a life worth living.

On that basis the Court has recognised, as part of Article 21, the right to livelihood, the right to a clean and healthy environment, the right to shelter, the right to health and emergency medical aid, the right to free legal aid, the right to a speedy and fair trial, the right of a prisoner to be treated with dignity, and the right to education for children. In K. S. Puttaswamy v. Union of India (2017), a bench of nine judges held that the right to privacy is a fundamental right protected by Article 21.

This expansion invites an obvious question, and it is a fair one. If Article 21 can be read to contain a right to health, a right to shelter and a right to a clean environment, is the Court reading the Constitution or rewriting it? Those who defend the expansion say the Court has only drawn out what a life with dignity must mean. Those who criticise it say a court that can add rights can also decide priorities that belong to an elected legislature.

Rights under Article 21 are not unlimited. Restrictions may be imposed, but by a procedure that is fair, just and reasonable, and proportionate to its purpose.

8.4.4 The Right To Education (Article 21A)

Article 21A was inserted by the Eighty-sixth Constitutional Amendment Act, 2002. It provides that the state shall provide free and compulsory education to all children of the age of six to fourteen years, in such manner as the state may by law determine.

Article 21A Says: The state shall provide free and compulsory education to all children aged six to fourteen. Does: It converts a direction to government into an enforceable right, and casts the duty of providing schooling on the state. Leaves open: It does not itself fix standards, admission rules or who pays; those were left to a law Parliament had to make.

That law is the Right of Children to Free and Compulsory Education Act, 2009. It sets out what free and compulsory education means in practice: admission procedures, norms for school infrastructure and teachers, curriculum requirements, and the prohibition of discrimination against children in admission. Responsibility for implementation lies largely with the State governments, which run most schools.

Two features of Article 21A are worth marking. It is one of the few Fundamental Rights that imposes a positive duty to provide something, rather than a duty to refrain. And its age band is closed at fourteen, so schooling beyond that age is not covered by it.

8.4.5 Protection Against Arrest And Detention (Article 22)

Article 22 has two halves that pull in opposite directions, and reading only one of them gives a false picture.

Safeguards For The Arrested Person

The first half protects a person arrested under ordinary criminal law. Such a person must be informed of the grounds of arrest as soon as may be. He has the right to consult and to be defended by a legal practitioner of his choice. And he must be produced before the nearest magistrate within twenty-four hours of arrest, excluding the time needed for the journey; beyond that, he cannot be held without the magistrate’s authority.

Flowchart

FC 8.1 — What Article 22 Requires After An Arrest Caption: The sequence a lawful arrest under ordinary criminal law must follow. Nodes: Arrest made → Grounds of arrest communicated to the person → Person allowed to consult and be defended by a lawyer of choice → Produced before the nearest magistrate within 24 hours, excluding journey time → Magistrate examines the case → If detention is authorised, the person remains in custody under judicial orders → If not authorised, the person is released → [Branch: if the person is an enemy alien, or is held under a preventive detention law, these two safeguards do not apply and the preventive detention provisions govern instead]

Preventive Detention

The second half concerns preventive detention — detention of a person without trial or conviction, ordered not to punish a past offence but to prevent an apprehended future one. The two safeguards just described do not apply to a person held under a preventive detention law, or to an enemy alien.

The Constitution permits preventive detention and, in the same breath, limits it. No law may authorise detention for longer than three months unless an Advisory Board of persons qualified to be judges of a High Court has reported that there is sufficient cause for the detention, or unless the person is detained under a law made by Parliament that itself prescribes the conditions.

Parliament has exclusive power to legislate on preventive detention for reasons connected with defence, foreign affairs or the security of India. Both Parliament and the State Legislatures may legislate on it for reasons connected with the maintenance of public order or of supplies and services essential to the community.

Such laws have been enacted at intervals since 1950 and have been the subject of continuous controversy. The Maintenance of Internal Security Act, 1971 was repealed in 1978. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the National Security Act, 1980 remain in force. The Terrorist and Disruptive Activities (Prevention) Act was allowed to lapse in 1995, and the Prevention of Terrorism Act, 2002 was repealed in 2004.

That India’s Constitution permits detention without trial in peacetime is unusual among democratic constitutions, and the framers knew it. Their defence was that a newly independent state facing partition, communal violence and armed challenge needed the power, and that the Advisory Board and the time limits were the price for allowing it.

Preventive Detention: Two Chairs The state: a person known to be planning violence cannot be left free until after the harm is done. The detained person: I have been convicted of nothing, and I cannot answer a charge that has not been made. Both agree: detention without trial is an exception that needs justification, not a normal instrument of government.

8.5 The Right Against Exploitation (Articles 23–24)

The rights studied so far protect a person mainly against the state. The Right against Exploitation is different. It is aimed at practices carried on by private persons — landlords, contractors, employers, traffickers — which reduce a human being to an instrument for someone else’s use.

Two Articles carry this right. Article 23 prohibits traffic in human beings and forced labour. Article 24 prohibits the employment of children in hazardous work. Both are available to citizens and non-citizens alike, and both bind private persons as well as the state.

8.5.1 Prohibition Of Traffic And Forced Labour (Article 23)

Source 8.4 — Article 23(1) Of The Constitution Of India From: The Constitution of India, Part III, Article 23, clause (1). “Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.” Discuss: The clause itself declares a contravention to be an offence. Why might the framers have written that into the Constitution instead of leaving it to a statute?

Two evils are named, and a third is covered by the words ‘other similar forms’.

Traffic in human beings means dealing in people as though they were goods. It covers the buying and selling of men, women and children; trafficking in women and children, including for prostitution; and slavery in any of its forms.

Begar is the practice of compelling a person to render service without payment. It was widespread in India under the zamindari system, in which landholders required tenants to work for them without wages as a condition of holding land.

Forced labour is the wider category. It means compelling a person to work against his or her will. The compulsion need not be physical.

What Counts As ‘Force’

That last point is the one that gives Article 23 its reach. In the Asiad workers’ case, brought by the People’s Union for Democratic Rights, the Supreme Court read the word ‘force’ in Article 23 broadly. It held that force includes not only physical or legal compulsion but also the compulsion of economic circumstances, and that a person made to work for less than the minimum wage is working under forced labour within the meaning of the Article.

The reasoning is worth following. A labourer who has no savings and no alternative work does not freely accept a wage below the legal minimum; he accepts it because the alternative is hunger. Treating that as a free bargain would empty the Article of meaning for exactly the people it was written for.

Where The Word Begar Comes From Under the zamindari system of land revenue, which the British administration extended over large parts of India, an intermediary held revenue rights over a village and its cultivators. Alongside rent, many zamindars required tenants to supply unpaid labour — carrying loads, repairing buildings, working the household fields — as a customary obligation attached to the land itself. Because the obligation ran with the tenancy, refusing it risked losing the land, so no visible coercion was needed. The framers named the practice in the constitutional text rather than leaving it to be inferred, because it was so ordinary that it might not have been recognised as forced labour at all.

Laws Made Under Article 23

Parliament has given the prohibition working machinery. The Suppression of Immoral Traffic in Women and Girls Act, 1956, renamed the Immoral Traffic (Prevention) Act following amendment in 1986, deals with trafficking for sexual exploitation. The Bonded Labour System (Abolition) Act, 1976 abolished bonded labour and cancelled outstanding bonded debts. The Minimum Wages Act, 1948 fixes wage floors, the Contract Labour (Regulation and Abolition) Act, 1970 regulates work through contractors, and the Equal Remuneration Act, 1976 requires equal pay for equal work between men and women.

How A Loan Becomes Bondage A small loan is taken for illness or a wedding → wages are set below what the interest demands → the debt cannot be cleared and passes to the family → the worker cannot leave until it is repaid → labour is given without real consent, which is what Article 23 forbids.

The Permitted Exception

Article 23 allows one exception. The state may impose compulsory service for public purposes. Conscription for the armed forces or the police, or compulsory service in a public emergency, is therefore not begar.

The exception carries its own condition. In imposing such service, the state may not discriminate on grounds only of religion, race, caste or class. The state may compel service; it may not choose whom to compel by those grounds.

8.5.2 Prohibition Of Child Labour (Article 24)

Article 24 provides that 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.

The Article is precise about its scope, and the precision matters. It fixes an age, fourteen. It names two workplaces, factories and mines. And it extends to other hazardous employment, leaving the definition of hazardous to be worked out by law.

What it does not do, in its own words, is prohibit all work by children. Employment that is neither in a factory or mine nor hazardous falls outside the Article’s terms.

The Laws Behind The Article

Parliament has legislated repeatedly in this field. The Factories Act, 1948 and the Mines Act, 1952 restrict the employment of young persons in those workplaces. The Child Labour (Prohibition and Regulation) Act, 1986 was the first comprehensive statute, and it was substantially amended in 2016.

The 2016 amendment made three main changes. It prohibited the employment of children below fourteen in all occupations and processes, going beyond the constitutional minimum, but exempted help given to the child’s own family enterprise where it does not interfere with schooling. It created a new category of adolescents, those between fourteen and eighteen, and barred their employment in hazardous occupations. And it made the employment of a child a cognizable offence, that is, one for which the police may arrest without a warrant.

The narrowing of the list of occupations classified as hazardous, and the family-enterprise exemption, were criticised at the time on the ground that much child labour in India takes place precisely within household-based work. Supporters of the change argued that a total ban ignoring family enterprises would be unenforceable and would push the work underground.

This Article does not stand alone. Read with Article 21A, which guarantees free and compulsory education to children between six and fourteen, it reflects a single judgement: that the years in which a child could be sent to work are the years in which a child should be at school.

Should Any Work By Children Be Permitted? One view: a total prohibition is the only clear rule; every exception becomes a loophole. Another view: a family that needs the child’s help will keep it hidden, and a ban that cannot be enforced protects nobody. What would you need to know to decide?

8.6 The Right To Freedom Of Religion (Articles 25–28)

India has no state religion. The Constitution neither establishes one faith nor requires citizens to hold any. This is the core of Indian secularism — the principle that the state does not identify itself with any religion and treats all faiths equally before the law.

Indian secularism does not mean that the state ignores religion altogether. The Constitution permits the state to regulate secular activity connected with religious practice, and to legislate for social welfare and reform. The state keeps a distance from religion, but a distance from which it can still act.

Four Articles carry the Right to Freedom of Religion. Article 25 protects the individual believer. Article 26 protects the religious community. Articles 27 and 28 keep public money and public schooling out of religious promotion.

8.6.1 Freedom Of Conscience And Religion (Article 25)

Article 25 entitles all persons equally to freedom of conscience and the right freely to profess, practise and propagate religion. The right is available to citizens and non-citizens alike.

Four distinct liberties are packed into that sentence.

Freedom of conscience is the inner liberty to believe, to doubt, or to believe nothing at all. To profess is to declare one’s faith openly. To practise is to perform the rituals, observances and ceremonies the faith requires. To propagate is to communicate one’s beliefs to others.

Propagation is the most argued-over of the four. It clearly protects preaching and persuasion. It does not protect conversion brought about by force, fraud or inducement, since a conversion so obtained is not an exercise of the other person’s freedom of conscience at all.

The Article carries two explanations of its own. The wearing and carrying of kirpans — the ceremonial dagger worn by initiated Sikhs — is deemed included in the profession of the Sikh religion. And the reference to Hindus in this Article is to be read as including persons professing the Sikh, Jain or Buddhist religions.

Does Religious Freedom Include The Right To Convert Others? Claim: Propagation must include persuading others, or the word adds nothing to ‘practise’. Reasons: A faith that may be held but not communicated is confined to the private mind. Strongest objection: The listener’s freedom of conscience is equally protected, so persuasion backed by force, fraud or inducement is not covered. What it turns on: Whether a particular conversion was genuinely chosen by the person converting.

The Limits On Article 25

The rights under this Article are expressly made subject to public order, morality and health, and to the other provisions of Part III. A religious practice that endangers health or breaches public order does not become immune because it is religious.

The Article then permits the state to act in two further ways. It may make laws regulating or restricting any economic, financial, political or other secular activity that may be associated with religious practice. And it may make laws providing for social welfare and reform, or for throwing open Hindu religious institutions of a public character to all classes and sections of Hindus.

The second of these is a reform clause with a specific history. Temple entry for those previously excluded by caste was one of the central social demands of the national movement, and the framers wrote the power to legislate for it into the religious freedom Article itself.

Which Practices Are Protected

Because Article 25 protects religious practice but permits regulation of secular activity, the courts have had to draw a line between them. They have done so through what is called the doctrine of essential religious practices: constitutional protection extends to practices that are essential or integral to a religion, and not to every activity a religious community happens to carry on.

This doctrine is useful and contested at the same time. It gives courts a workable test, but it also puts judges in the position of deciding what is essential to a faith — a question believers might think belongs to the faith itself.

The sharpest difficulties arise when religious freedom meets another Fundamental Right. In the Sabarimala matter decided in 2018, the Supreme Court considered the exclusion of women of a particular age group from a temple, weighing the claim of a religious denomination to manage its own affairs against the claim of women to equal access. The decision was followed by review petitions, and larger questions about the relation between religious freedom and equality were referred to a larger bench.

When Religious Freedom And Equality Collide, Which Yields? One view: a community’s right to decide its own religious practice is what religious freedom means. Another view: a practice that excludes a class of citizens denies them equality, which the Constitution also guarantees. What would you need to know to decide?

8.6.2 Freedom To Manage Religious Affairs (Article 26)

Article 25 speaks of persons; Article 26 speaks of groups. It confers rights on every religious denomination — an organised body of people holding a common faith, with a common name and a common organisation — or any section of one.

Subject to public order, morality and health, such a denomination has the right to establish and maintain institutions for religious and charitable purposes; to manage its own affairs in matters of religion; to own and acquire movable and immovable property; and to administer that property in accordance with law.

The four rights are not identical in strength, and the difference is easy to miss. In matters of religion, the denomination manages its own affairs. In matters of property, it administers in accordance with law — which means the state may make laws about the administration of religious property without breaching this Article.

We can set the two Articles side by side, having first understood each on its own terms.

Table 8.2 — Article 25 And Article 26 Compared Caption: One Article protects the believer, the other the community of believers. | Basis | Article 25 | Article 26 | |—|—|—| | Who holds the right | Every person, citizen or not | A religious denomination or a section of one | | What is protected | Conscience, and the freedom to profess, practise and propagate | Establishing institutions, managing religious affairs, owning and administering property | | Limits stated in the Article | Public order, morality, health, and the other provisions of Part III | Public order, morality and health | | Power expressly left to the state | Regulation of associated secular activity; social welfare and reform | Administration of property in accordance with law | Flattens: The grid separates the individual from the group, but the hardest cases are exactly those where a member of a denomination claims a right against the denomination itself.

8.6.3 Freedom From Religious Taxes (Article 27)

Article 27 provides that no person shall be compelled to pay any tax the proceeds of which are specifically appropriated for the promotion or maintenance of any particular religion or religious denomination.

The point of this Article is fiscal neutrality. A citizen’s tax money may not be earmarked for the advancement of a faith, whether or not it is her own. If the state could fund one religion out of general taxation, it would be establishing that religion in substance while denying it in form.

Two limits on the Article should be noted. It speaks of a tax, which is a compulsory payment to the state for public purposes, and not of a fee charged for a specific service. And it forbids appropriation for the promotion of a particular religion; expenditure that serves all communities alike, such as the maintenance of public order at a large gathering, is not caught by it.

8.6.4 Freedom From Religious Instruction (Article 28)

Article 28 carries the same principle into the classroom, and it distinguishes carefully between four kinds of institution.

  1. In an institution wholly maintained out of state funds, no religious instruction may be provided at all.
  2. That prohibition does not apply to an institution administered by the state but established under an endowment or trust that requires religious instruction to be imparted in it.
  3. In an institution recognised by the state or receiving aid out of state funds, religious instruction or worship may be conducted, but no person attending may be required to take part in it.
  4. Where the person attending is a minor, the consent of the guardian is what counts.

The scheme is a compromise, and a deliberate one. A wholly state-funded school is treated as an arm of the state and must be religiously neutral. An aided or recognised school may keep its religious character, but may not impose it on an unwilling student.

Q. A private school receives no government aid. May it require its students to attend daily prayers?

A. Article 28 does not bar it, since the school is neither state-maintained nor state-aided or recognised for this purpose. The constitutional restriction follows public funding and recognition.

8.7 Cultural And Educational Rights (Articles 29–30)

India is a country of many languages, scripts, faiths and ways of life. Democracy decides by counting, and counting favours the larger group. A group that is permanently outnumbered can lose its language, its script and its schools without any law ever being passed against it, simply because the majority’s language becomes the language of instruction, employment and public business.

Articles 29 and 30 are the Constitution’s answer to that danger. They give cultural groups a right to conserve what they are, and give minorities the right to run educational institutions of their own.

8.7.1 Protection Of Minority Interests (Article 29)

Source 8.5 — Article 29(1) Of The Constitution Of India From: The Constitution of India, Part III, Article 29, clause (1). “Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.” Discuss: The clause says ‘any section of the citizens’. Whom does that include, and whom does it leave out?

Read the words closely, because two of them decide the scope of the right.

The right belongs to ‘any section of the citizens’. The Article does not use the word minority at all. On its terms, therefore, the right to conserve a distinct language, script or culture is not confined to minorities; a majority community with a distinct culture in a particular region falls within the words just as squarely.

The right is also confined to citizens. A foreign national living in India cannot claim it.

Three conditions must be satisfied before the right can be claimed. There must be a section of citizens; that section must be residing in India or in some part of it; and it must have a language, script or culture distinctly its own.

What ‘Conserve’ Means

To conserve is to preserve and maintain. The right therefore includes working for one’s own language, script or culture — running associations, publishing, teaching it to one’s children — and campaigning peacefully for its protection.

The second clause of Article 29 approaches the same problem from the other end. No citizen may be denied admission to an educational institution maintained by the state or receiving aid out of state funds on grounds only of religion, race, caste or language.

Note the difference between the two clauses, because it is often missed. Clause (1) is a group right to conserve a culture. Clause (2) is an individual right of every citizen against exclusion from a publicly funded school or college — and it protects the applicant from the majority and the minority alike.

The Article as it stands contains no express clause permitting the state to impose restrictions on the right to conserve. Its purpose is to stop a majority from imposing its language and culture on those who do not share it.

Who Counts As A Minority? The Constitution guarantees rights to minorities but does not define the word. Two kinds are recognised in Article 30: religious minorities and linguistic minorities. Whether a community is a minority is judged with reference to the State in question rather than to India as a whole, because education is largely administered at the State level. The consequence is that the same community may be a minority in one State and part of the majority in another — Hindi speakers are a majority in Uttar Pradesh and a small minority in Tamil Nadu. The test is numerical position within the relevant unit, not social or economic standing.

8.7.2 Minority Educational Institutions (Article 30)

Article 30 is narrower in whom it covers and stronger in what it gives. It provides that all minorities, whether based on religion or on language, shall have the right to establish and administer educational institutions of their choice.

Two verbs carry the right. To establish is to bring the institution into existence. To administer is to run it — to admit students, to appoint teachers and governing bodies, to decide the internal system of instruction. A right to found a school without a right to run it would be worth very little.

The Article contains two further protections.

Where a law provides for the compulsory acquisition of the property of an educational institution established and administered by a minority, the state must ensure that the amount fixed under that law would not restrict or abrogate the right guaranteed by Article 30. This clause was inserted by the Forty-fourth Amendment Act, 1978.

And in granting aid to educational institutions, the state may not discriminate against an institution on the ground that it is under the management of a minority. A minority institution that accepts aid does not thereby lose its minority character.

The Limits Of Article 30

The right is not a licence to run an institution however the management pleases. Minority institutions remain subject to laws about standards of teaching, qualifications of staff, sanitation and public order, because such regulation goes to the quality of education rather than to the minority character of the institution.

Nor does Article 30 sit apart from the rest of Part III. A minority institution that receives state aid is bound by Article 29(2), so it cannot refuse admission to a citizen on grounds only of religion, race, caste or language.

Do Special Rights For Minorities Breach Equality? Claim: Giving one group a right to run its own institutions treats citizens unequally. Reasons: Article 14 promises equal protection, and Article 30 names minorities alone. Strongest objection: Equal protection permits unlike treatment of unlike cases, and a group that can always be outvoted is not similarly placed. What it turns on: Whether equality is measured by identical rules or by equal capacity to preserve one’s own way of life.

Taken together, Articles 29 and 30 do something a bare guarantee of equality could not. They accept that a country of this size and variety cannot be held together by requiring everyone to become the same, and they write that acceptance into the enforceable part of the Constitution.

Q. If a linguistic minority school in a State teaches in its own language, may the State university insist on a different medium of instruction?

A. No. Choosing the medium of instruction is part of administering an institution of one’s choice, which is exactly what Article 30 protects.

8.8 Right To Property: A Right That Was Removed

Everything studied so far concerns rights that Part III contains. This short section concerns a right that Part III once contained and no longer does. It is the clearest evidence in the Constitution that the list of Fundamental Rights is a political decision, not a fixed inheritance.

What The Original Constitution Guaranteed

When the Constitution came into force in 1950, property was protected twice over. Article 19(1)(f) guaranteed to every citizen the freedom to acquire, hold and dispose of property. Article 31 provided that no person should be deprived of property save by authority of law, and that property compulsorily acquired by the state must be acquired for a public purpose and against compensation.

This was an ordinary feature of liberal democratic constitutions of the period. It reflects a straightforward idea: a person who can be stripped of what she owns at the government’s discretion is not secure in anything else either.

Why It Became Contested

The difficulty appeared almost immediately, and it came from land.

At independence, agricultural land in much of India was held through intermediaries — zamindars and similar tenure-holders — who collected rent from cultivators who did not own what they farmed. Nearly every State legislature passed laws abolishing these intermediaries and transferring land to the tiller. These laws were, by their nature, laws that took property from one set of people and gave it to another.

Landholders challenged them in court under Articles 19(1)(f) and 31. Some challenges succeeded. Governments responded by amending the Constitution, and each amendment was in turn litigated. A cycle set in that lasted for nearly three decades.

TL 8.1 — The Long Argument Over Property Caption: How a Fundamental Right came under pressure and was finally moved out of Part III. Span: 1950 to 1978 — a conflict between land reform legislation and constitutional property rights. 1950 | Property Guaranteed Twice | Articles 19(1)(f) and 31 protect holding and acquisition of property. 1951 | The First Amendment | Ninth Schedule created to shield land reform laws from challenge. 1955 | The Fourth Amendment | Adequacy of compensation made non-justiciable in the courts. 1971 | The Twenty-fifth Amendment | The word ‘compensation’ replaced by an ‘amount’ payable. 1973 | Kesavananda Bharati | Court holds the basic structure limits the amending power. 1978 | The Forty-fourth Amendment | Right to property removed from the Fundamental Rights.

What The Forty-fourth Amendment Did

The Forty-fourth Amendment Act, 1978 repealed Article 19(1)(f) and Article 31. It inserted a new provision, Article 300A, outside Part III, in these terms: no person shall be deprived of his property save by authority of law.

Property in India is therefore still a right, and still a constitutional one. What it is not is a Fundamental Right.

The practical difference lies in the remedy, and it is a real one. A person whose Fundamental Right is violated may move the Supreme Court directly under Article 32. A person deprived of property contrary to Article 300A must show that the deprivation was without authority of law, and must pursue that claim in the High Court under Article 226 or in the ordinary courts.

What The Change Tells Us

Two competing readings of this episode are available, and both are held by serious people.

On one reading, the removal was a democratic correction. A constitutional guarantee of property, enforced by unelected judges, was blocking redistributive laws that elected legislatures had passed to end a form of landholding widely regarded as unjust. Removing the obstacle allowed reform to proceed.

On the other reading, the episode is a warning. The Fundamental Rights exist precisely to be beyond the reach of ordinary majorities, and a right that can be amended away when it becomes inconvenient is a weaker guarantee than it appears. What was done to property could, on this view, be done to something else.

Land Reform From Two Chairs The tenant cultivator: I have farmed this land for a generation and own none of it; the law is correcting an injustice. The landholder: my title was lawful when I acquired it, and the Constitution promised that it could not be taken without fair compensation. Both agree: the question is not whether property may ever be taken, but on what terms and with what remedy.

Whichever reading is preferred, the constitutional position today is settled and should be stated exactly. Property is protected by Article 300A, which requires authority of law for any deprivation. It is not one of the six Fundamental Rights, and it cannot be enforced by a direct petition under Article 32.

8.9 The Right To Constitutional Remedies (Articles 32–35)

A right without a remedy is an announcement. The six rights studied so far would be worth no more than the paper they occupy if a citizen whose right was violated had nowhere to go.

The Right to Constitutional Remedies is what closes that gap. It is itself a Fundamental Right, and it is the only one whose whole purpose is to enforce the others.

8.9.1 The Right To Move The Court (Article 32)

Article 32 guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III. It empowers the Supreme Court to issue directions, orders or writs for that purpose. It allows Parliament to empower other courts to exercise the same powers within their jurisdiction. And it provides that the right guaranteed by the Article shall not be suspended except as the Constitution itself provides.

Source 8.6 — Ambedkar On Article 32 From: B. R. Ambedkar, Chairman of the Drafting Committee, speaking in the Constituent Assembly on the draft Article that became Article 32, December 1948. “It is the very soul of the Constitution and the very heart of it.” Discuss: Why would the chairman of the Drafting Committee rank a remedy above the rights it enforces?

Ambedkar’s answer, in the same speech, was that a Constitution which declared rights but gave no way to enforce them would be a nullity. That is the logic of the Article, and it explains its unusual design.

Note what Article 32 does that is unusual. It allows a citizen to go straight to the Supreme Court — the highest court in the country — without first working up through the lower courts. In most matters, the Supreme Court is a court of appeal reached at the end of a long road. For Fundamental Rights, it is a court of first instance.

Article 32 Says: A person may move the Supreme Court directly to enforce a Fundamental Right, and the Court may issue writs to do so. Does: It makes the Supreme Court the guarantor of Part III and gives judicial review its enforcement machinery. Leaves open: The Article assumes a citizen can reach the Court; it says nothing about cost, distance or legal help.

Article 32 And Article 226

The High Courts have a parallel power under Article 226, and the two are not identical.

Article 32 can be invoked only for the enforcement of a Fundamental Right. Article 226 can be invoked for the enforcement of a Fundamental Right and for any other purpose — for instance, to enforce an ordinary legal right against a public authority. The High Court’s writ jurisdiction is therefore wider in the subjects it covers, though it is limited to the territory over which that Court has jurisdiction.

This gives a person with a grievance a genuine choice, and in practice most Fundamental Rights litigation begins in a High Court.

Flowchart

FC 8.2 — How A Fundamental Rights Claim Reaches A Court Caption: The routes available to a person whose Fundamental Right has been violated. Nodes: Fundamental Right violated by the State → Person chooses a forum → [Branch A: petition to the Supreme Court under Article 32, available only for enforcement of a Fundamental Right] → [Branch B: petition to the High Court under Article 226, available for a Fundamental Right or for any other purpose, within that Court’s territory] → Court hears the petition → [If the claim succeeds: the Court issues an appropriate writ, direction or order, and the offending law or action is struck down or set aside] → [If the claim fails: the petition is dismissed; a High Court decision may be carried further on appeal to the Supreme Court]

Widening The Door: Public Interest Litigation

Article 32 assumes that the person whose right is violated will come to court. For a bonded labourer, an undertrial prisoner or a pavement dweller, that assumption is close to fiction. Such a person may not know the right exists, and could not pay for a lawyer if she did.

From the late 1970s the Supreme Court relaxed the traditional requirement that only the injured person may sue. Under what came to be called public interest litigation, any public-spirited person may move the Court on behalf of those unable to approach it themselves, and the Court has treated even letters written to it as petitions.

This development is defended as the only way Article 32 could mean anything for the poorest. It is criticised on the ground that it invites courts into questions of policy and administration that belong to elected governments. Both criticisms and defences are about the same feature: a court that is easy to reach will be asked to decide a great deal.

Q5. What can an ordinary citizen actually do, on a working day, when a Fundamental Right is violated?

A. Move the Supreme Court directly under Article 32, or the High Court under Article 226, and ask for a writ; and through public interest litigation, another person may do it on her behalf.

8.9.2 The Writs

A writ is a formal written order issued by a court, commanding a person or authority to do something or to stop doing it. The Constitution names five writs that the Supreme Court and the High Courts may issue. Each answers a different kind of wrong.

Habeas Corpus

Habeas corpus means ‘you may have the body’. The court orders whoever is holding a person in custody to produce that person before it and to justify the detention. If the detention is found to be unlawful, the court orders immediate release.

This is the writ that stands between a citizen and disappearance into a cell. It can be issued against public authorities and against private persons. It will not be issued where the detention is lawful, where it has been ordered by a competent court, where the proceeding is for contempt of a legislature or a court, or where the detention is outside the court’s jurisdiction.

Mandamus

Mandamus means ‘we command’. It is issued to a public official or public body, directing it to perform a public duty which it is legally bound to perform and which it has failed or refused to perform.

It cannot be issued against a private individual or organisation, to enforce a contract, or where the duty in question is discretionary rather than mandatory. It does not lie against the President of India or the Governor of a State.

Prohibition

Prohibition means ‘to forbid’. A higher court issues it to a lower court or tribunal, restraining it from proceeding in a matter that lies outside its jurisdiction.

It is preventive rather than corrective: it stops the proceeding before the wrong decision is made. It lies only against judicial and quasi-judicial authorities, and not against administrative bodies, legislatures or private persons.

Certiorari

Certiorari means ‘to be certified’. A higher court issues it to a lower court or tribunal to transfer a case to itself, or to quash a decision already made where there was excess or absence of jurisdiction, or an error of law.

The contrast with prohibition is exact and worth holding. Prohibition stops a proceeding that is still running; certiorari undoes a decision already made. Certiorari is therefore both preventive and corrective.

Quo Warranto

Quo warranto means ‘by what authority’. The court asks a person holding a public office to show the legal authority by which the office is held, and restrains the holder if the claim is bad.

It lies only in respect of a substantive public office of a permanent character, created by statute or by the Constitution, and not in respect of a private or ministerial office. It has one distinctive feature: unlike the other writs, any interested person may apply for it, not only someone personally injured by the usurpation.

8.9.3 Restrictions And Enforcement (Articles 33–35)

Three further Articles complete Part III. Two of them restrict the rights; the third makes them effective.

Article 33: The Armed Forces And Related Services

Article 33 empowers Parliament to restrict or abrogate the application of the Fundamental Rights to the members of the armed forces; to the forces charged with the maintenance of public order; to persons employed in any bureau or organisation established by the state for purposes of intelligence; and to persons employed in connection with telecommunication systems set up for any of those forces or organisations.

The object is the proper discharge of duties and the maintenance of discipline. A force whose members could hold public meetings about operational orders, or form unions to bargain over deployment, could not do the work it exists to do.

Two safeguards should be noted. The power belongs to Parliament alone; a State Legislature cannot exercise it. And it is a power to restrict by law, not a licence for a commanding officer to disregard the Constitution at will.

Article 34: Martial Law

Article 34 provides that Parliament may by law indemnify any person in the service of the Union or of a State, or any other person, in respect of acts done in connection with the maintenance or restoration of order in an area where martial law was in force, and may validate sentences passed, punishments inflicted and other acts done under martial law in such an area.

Martial law is the temporary supersession of ordinary civil administration by military authority in a disturbed area. Article 34 does not itself declare martial law or define it; it deals with the legal consequences afterwards. It is one of the sharpest limitations on Part III in the entire Constitution, and it exists nowhere else in the text.

Article 35: Only Parliament May Legislate

Article 35 provides that the power to make laws on certain matters in Part III belongs to Parliament alone, and not to the State Legislatures. This includes the power to prescribe punishment for the acts declared offences by Part III — such as the practice of untouchability under Article 17 and forced labour under Article 23 — and the power to legislate on residence requirements for public employment and on empowering other courts to issue writs.

The reasoning is uniformity. A right guaranteed to every Indian would be an uneven thing if the offence of enforcing untouchability carried one punishment in one State and another elsewhere.

Is Article 32 Really The Heart Of The Constitution? Claim: Article 32 is the most important Article, because without it the rest of Part III is unenforceable. Reasons: A guarantee with no remedy leaves the citizen exactly where she was before it was written. Strongest objection: The remedy is only as good as the citizen’s ability to use it — cost, distance and legal help decide who actually reaches the Court. What it turns on: Whether we judge a right by what it promises or by who in practice obtains it.

8.10 Fundamental Rights: Citizens And Foreigners

One question runs quietly through the whole of Part III and is easy to miss on a first reading: who exactly holds these rights?

The Constitution does not give a single answer. Some Articles begin with the words ‘all citizens’. Others begin with ‘any person’ or ‘no person’. The difference is deliberate, and it decides who may stand in court and claim the Article.

Rights Available To Citizens Only

Five Articles are confined to citizens of India.

  1. Article 15 — prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
  2. Article 16 — equality of opportunity in matters of public employment.
  3. Article 19 — the six freedoms: speech and expression, assembly, association, movement, residence, and profession or trade.
  4. Article 29 — protection of the language, script and culture of any section of citizens.
  5. Article 30 — the right of minorities to establish and administer educational institutions.

A pattern connects them. These are the rights that concern membership of the political community — participation in public employment, political and economic activity within the country, and the preservation of the cultures that make up India. A state may reasonably decide that such rights belong to those who belong to it.

Rights Available To All Persons

The remaining Articles use the language of persons, and therefore protect foreigners in India as well as citizens.

  1. Article 14 — equality before law and equal protection of the laws.
  2. Article 20 — protection in respect of conviction for offences.
  3. Article 21 — protection of life and personal liberty.
  4. Article 21A — the right to free and compulsory elementary education.
  5. Article 22 — protection against arrest and detention in certain cases.
  6. Article 23 — prohibition of traffic in human beings and forced labour.
  7. Article 24 — prohibition of employment of children in hazardous work.
  8. Articles 25 to 28 — the freedoms of religion, of religious denominations, from religious taxation and from compulsory religious instruction.

A pattern connects this group too, and it is a different one. These are the rights that attach to being human rather than to being Indian — life, liberty, fair treatment by the criminal law, freedom of conscience, freedom from being bought and sold. It would be strange to say that a foreign visitor may be enslaved or punished under a retrospective law because she holds another passport.

The right to move the courts under Article 32 follows the right it enforces. Any person whose Fundamental Right has been violated may invoke it; but a foreigner cannot invoke Article 32 to enforce Article 19, because Article 19 was never hers to enforce.

One qualification applies within this second group. The safeguards in Article 22 concerning grounds of arrest, access to a lawyer and production before a magistrate within twenty-four hours do not apply to a person who is for the time being an enemy alien — a national of a country at war with India.

Fig. 8.10-1 sets out the division.

Diagram

Fig. 8.10-1 Caption: Some Fundamental Rights belong to citizens alone; the rest belong to every person in India. Brief: Two columns of equal width under a single heading band. Left column headed ‘Citizens only’, listing in order: Article 15, Article 16, Article 19, Article 29, Article 30, each with a four-word description. Right column headed ‘All persons, citizens and foreigners’, listing in order: Article 14, Article 20, Article 21, Article 21A, Article 22, Article 23, Article 24, Articles 25–28, each with a four-word description. A single footnote line beneath the right column: ‘The safeguards in Article 22 do not apply to enemy aliens.’

Why The Division Matters

This is not a piece of trivia to be memorised. The division tells us how the framers understood the rights they were writing.

Part III is not a single kind of document. Part of it is a charter of human rights, claimed by anyone within Indian territory against Indian public power. Part of it is a charter of citizenship, defining what it means to be a full member of this particular political community.

Whether the line has been drawn in the right place is a fair question to raise. A foreign worker in India may not claim the freedom to carry on a trade under Article 19, though her livelihood depends on it as much as anyone’s. She may, however, claim Article 21, and the courts have read a right to livelihood into Article 21. The boundary, in other words, is firmer in the text than it always turns out to be in practice.

Should Any Fundamental Rights Be Reserved For Citizens? One view: rights such as public employment and political freedoms define membership of a political community, and a state may reserve them for its own members. Another view: a person subject to India’s laws and police is subject to India’s power, and power should be limited in favour of everyone it touches. What would you need to know to decide?

8.11 Summary

  1. A right is a claim on society and the state that carries a matching duty on someone else. Rights are claimed above all against public power, because the state is the strongest actor a citizen faces.

  2. Rights come in five widening-to-narrowing kinds: natural rights, human rights, civil rights, constitutional rights and Fundamental Rights. Each later category is narrower and better protected than the one before.

  3. A right is fundamental because of two features together: it is guaranteed by the Constitution, so ordinary law cannot remove it, and it is justiciable, so a court will enforce it.

  4. The Fundamental Rights are in Part III, Articles 12 to 35, under six heads: Equality (14–18), Freedom (19–22), against Exploitation (23–24), Freedom of Religion (25–28), Cultural and Educational Rights (29–30), and Constitutional Remedies (32–35).

  5. The Indian scheme is enumerated rather than natural; largely civil and political rather than socio-economic; qualified rather than absolute; amendable but subject to the basic structure; suspendable in an Emergency except for Articles 20 and 21; and it expressly permits special provision for particular groups.

  6. Article 12 defines ‘State’ widely — the Union, the States, local authorities and other authorities — and so decides whom Part III can be claimed against. Article 13 makes an inconsistent law void and is the textual foundation of judicial review.

  7. Article 14 joins two ideas: equality before law, which denies special privilege, and equal protection of the laws, which requires like treatment of like cases. It permits reasonable classification but forbids arbitrary classification.

  8. Articles 15 and 16 forbid discrimination on grounds only of religion, race, caste, sex, place of birth and (for employment) descent and residence, while expressly permitting protective discrimination in favour of women, children, backward classes and the Scheduled Castes and Scheduled Tribes.

  9. Article 17 abolishes untouchability, is stated without any permitted restriction, and binds private persons as well as the state. Article 18 abolishes titles, permitting only military and academic distinctions.

  10. Article 19 guarantees six freedoms to citizens — speech and expression, assembly, association, movement, residence, and profession or trade — each subject to restrictions that must be reasonable and must fall within grounds the Constitution itself names.

  11. Article 20 gives three criminal-law protections: no retrospective criminal law, no double jeopardy, no compelled self-incrimination. Together with Article 21, it cannot be suspended even during an Emergency.

  12. Article 21 protects the life and personal liberty of every person. After Maneka Gandhi (1978) the procedure it requires must be fair, just and reasonable, and the Article has since been read to include dignity, livelihood, environment, health, legal aid, speedy trial and privacy.

  13. Article 21A guarantees free and compulsory education to children aged six to fourteen, given statutory shape by the Right of Children to Free and Compulsory Education Act, 2009.

  14. Article 22 has two halves: safeguards for an arrested person — grounds of arrest, a lawyer of choice, production before a magistrate within twenty-four hours — and a permission for preventive detention, from which those safeguards are withheld.

  15. Articles 23 and 24 bind private persons. Article 23 prohibits traffic in human beings, begar and forced labour, and ‘force’ has been read to include economic compulsion. Article 24 bars children below fourteen from factories, mines and hazardous work.

  16. Articles 25 to 28 establish religious freedom without a state religion: conscience, profession, practice and propagation for the individual; management of religious affairs for a denomination; no taxation for a particular religion; and no compelled religious instruction in publicly funded or aided institutions.

  17. Articles 29 and 30 protect cultural difference. Article 29 gives any section of citizens the right to conserve its language, script or culture, and bars exclusion from publicly funded institutions. Article 30 gives minorities the right to establish and administer educational institutions of their choice.

  18. The right to property was removed from Part III by the Forty-fourth Amendment Act, 1978, and now exists as a constitutional legal right under Article 300A, enforceable but not by a direct petition under Article 32.

  19. Article 32 makes the Supreme Court directly available to any person whose Fundamental Right is violated, and empowers it to issue five writs: habeas corpus, mandamus, prohibition, certiorari and quo warranto. The High Courts have a wider parallel power under Article 226. Public interest litigation widened who may approach the Court.

  20. Articles 33 to 35 complete Part III: Parliament may restrict these rights for the armed and related forces, may indemnify acts done under martial law, and alone may legislate on prescribed Part III matters.

  21. Five Articles — 15, 16, 19, 29 and 30 — belong to citizens only. The rest belong to every person in India, with the Article 22 safeguards withheld from enemy aliens.

The Arguments In One Place

The chapter’s central claim is that a written, justiciable list of rights is what converts a government of law into a government limited by law. Article 13 makes an inconsistent law void, Article 32 puts the Supreme Court within a citizen’s direct reach, and together they mean that the state must justify itself to a court.

The strongest position against this claim, as the chapter states it, is that the guarantee is thinner than it looks. Almost every right may be restricted on broad grounds; the rights may be amended, and one of them has been removed outright; they may be suspended in an Emergency; and the remedy belongs in practice to those who can afford to reach a court.

A second, connected disagreement runs through the chapter: who should have the last word. An elected Parliament can claim democratic authority to define rights; an appointed court can claim that rights exist precisely to restrain majorities. Kesavananda Bharati answered this by holding that Parliament may amend but may not destroy the basic structure — an answer that settles the legal position without settling the argument.

The third disagreement is about equality itself. Article 14 permits reasonable classification and Article 15 permits protective discrimination, so the Constitution rejects identical treatment as the whole of equality. Whether equality is properly measured at the point of treatment or at the point of outcome is a question the text leaves open, and the chapter has not closed it.

8.12 Key Terms

  1. begar: Forced labour exacted from a person without payment, historically demanded from tenants under the zamindari system.

  2. Civil rights: Rights conferred on people within a country by its constitution or its ordinary laws, and therefore varying from country to country.

  3. Constitutional rights: Civil rights written into a country’s constitution rather than into an ordinary statute, and so harder to change.

  4. Equal protection of the laws: The requirement that persons in similar circumstances be treated alike in the benefits and burdens the law imposes.

  5. Equality before law: The principle that no person is above the law and that all persons are equally subject to the ordinary law of the land.

  6. Ex post facto law: A law that makes an act punishable after it was done, or increases the punishment for it afterwards; forbidden in criminal matters by Article 20.

  7. Forced labour: Work exacted from a person against his or her will, whether by physical force, legal compulsion or economic compulsion.

  8. Freedom of the press: The liberty of newspapers, broadcasters and other media to gather and circulate information and opinion without prior state control; read into Article 19(1)(a).

  9. Fundamental Rights: The basic rights of the individual placed in Part III of the Constitution, guaranteed against ordinary law and enforceable in court.

  10. Human rights: Rights held by every person everywhere irrespective of nationality, religion, race, sex or social position, as set out in the Universal Declaration of Human Rights, 1948.

  11. Judicial review: The power of a court to examine a law or an executive action and declare it invalid if it conflicts with the Constitution.

  12. Justiciable: Capable of being enforced by going to a court, which can order a remedy if the right has been violated.

  13. Natural rights: Rights said to belong to a person simply by virtue of being human, existing before the state and recognised rather than created by law.

  14. Ordinance: A law made by the President or a Governor when the legislature is not in session.

  15. Preventive detention: Detention of a person without trial or conviction, ordered to prevent an apprehended future act rather than to punish a past offence.

  16. Protective discrimination: The making of special provision in favour of disadvantaged groups so that they can compete on more equal terms.

  17. Public interest litigation: Proceedings in which a public-spirited person may move a court on behalf of those unable to approach it themselves.

  18. Religious denomination: An organised body of people holding a common faith, with a common name and a common organisation.

  19. Right: A claim that a person can make on society and the state, which they are under a duty to recognise and honour.

  20. Secularism: The principle that the state does not identify itself with any religion and treats all faiths equally before the law.

  21. Traffic in human beings: Dealing in people as though they were goods, including their buying, selling and trafficking, and slavery in any form.

  22. Untouchability: The practice by which persons of certain castes were treated as ritually polluting and excluded from ordinary social and public life; abolished by Article 17.

  23. Writ: A formal written order issued by a court commanding a person or authority to do something or to stop doing it.

8.13 Points to Ponder

  1. If Parliament can amend the Fundamental Rights, in what sense do those rights limit the Parliament that amends them?

  2. The right to property was once a Fundamental Right and is now an ordinary constitutional right. Does that change tell us that the list in Part III reflects what a society values at a given moment, or that some rights were never fundamental in the first place?

  3. Article 14 permits the state to treat unequals differently. How would you decide when such treatment has corrected a disadvantage and when it has become a new privilege?

  4. Almost every Fundamental Right may be restricted on grounds the Constitution names, but Article 17 carries no such clause. What is it about untouchability that made the framers refuse to allow any exception?

  5. Courts have read rights to livelihood, health, shelter and privacy into the twenty-two words of Article 21. Is a court that does this interpreting the Constitution or adding to it — and does the answer depend on whether the legislature could have acted instead?

  6. Article 32 gives every person the right to move the Supreme Court. If distance, cost and legal knowledge decide who actually arrives there, is the right unequal in law or only unequal in fact — and does the distinction matter?

8.14 Objective Questions

  1. Which Part of the Constitution of India contains the Fundamental Rights?

    1. Part II
    2. Part III
    3. Part IV
    4. Part V [1 mark]

  2. The right to property was removed from the list of Fundamental Rights by the

    1. Twenty-fifth Amendment Act, 1971
    2. Forty-second Amendment Act, 1976
    3. Forty-fourth Amendment Act, 1978
    4. Eighty-sixth Amendment Act, 2002 [1 mark]

  3. Which of the following Fundamental Rights is available to citizens only?

    1. Protection of life and personal liberty
    2. Equality before law
    3. Freedom of speech and expression
    4. Prohibition of forced labour [1 mark]

  4. The writ issued to a public authority directing it to perform a public duty it has failed to perform is

    1. habeas corpus
    2. mandamus
    3. certiorari
    4. quo warranto [1 mark]

  5. Fill in the blank: Article ______ of the Constitution defines the term ‘State’ for the purposes of Part III. [1 mark]

  6. True or False: The safeguards in Article 22 relating to the grounds of arrest and production before a magistrate apply to a person detained under a preventive detention law. [1 mark]

  7. Match the following Articles with what each provides: [1 mark]

Column A Column B
a. Article 17 i. Right of minorities to establish and administer educational institutions
b. Article 21A ii. Free and compulsory education for children aged six to fourteen
c. Article 27 iii. Abolition of untouchability
d. Article 30 iv. Freedom from taxes for the promotion of a particular religion
  1. Assertion (A): A law that classifies persons into different groups does not by itself violate Article 14. Reason (R): Article 14 guarantees similarity of treatment among those similarly situated, not identical treatment of everyone.
    1. Both Assertion and Reason are true and Reason is the correct explanation of Assertion.
    2. Both Assertion and Reason are true but Reason is not the correct explanation of Assertion.
    3. Assertion is true and Reason is false.
    4. Assertion is false and Reason is true. [1 mark]
  2. Assertion (A): The Right to Constitutional Remedies has been called the heart and soul of the Constitution. Reason (R): It is the only Fundamental Right whose purpose is the enforcement of the other Fundamental Rights.
    1. Both Assertion and Reason are true and Reason is the correct explanation of Assertion.
    2. Both Assertion and Reason are true but Reason is not the correct explanation of Assertion.
    3. Assertion is true and Reason is false.
    4. Assertion is false and Reason is true. [1 mark]
  3. Assertion (A): During a Proclamation of Emergency, the enforcement of every Fundamental Right may be suspended. Reason (R): The Forty-fourth Amendment Act, 1978 placed Articles 20 and 21 outside the power of suspension.
    1. Both Assertion and Reason are true and Reason is the correct explanation of Assertion.
    2. Both Assertion and Reason are true but Reason is not the correct explanation of Assertion.
    3. Assertion is true and Reason is false.
    4. Assertion is false and Reason is true. [1 mark]

8.15 Check Your Concepts

  1. Define a justiciable right and give one example from Part III. [2 marks]

  2. State any two categories of authority included within the meaning of ‘State’ under Article 12. [2 marks]

  3. List the six freedoms guaranteed by Article 19. [2 marks]

  4. Differentiate between equality before law and equal protection of the laws. [3 marks]

  5. Differentiate between the writs of prohibition and certiorari. [3 marks]

  6. Give reasons why the Constitution treats Article 21 differently from most other Fundamental Rights during an Emergency. [3 marks]

  7. Explain protective discrimination with one example drawn from Article 15 or Article 16. [4 marks]

  8. Explain, with an example, what makes a restriction on a freedom under Article 19 a ‘reasonable’ one. [4 marks]

  9. Evaluate the claim that Article 17 is the only Fundamental Right stated in absolute terms. [4 marks]

  10. Describe the rights conferred by Articles 29 and 30, and explain why the Constitution gives minorities these guarantees in addition to the general guarantee of equality. Include one criticism of this arrangement. [6 marks]

  11. Discuss the causes and consequences of the removal of the right to property from Part III, with reference to Indian land reform legislation and to Article 300A. [6 marks]

  12. Compare the writ jurisdiction of the Supreme Court under Article 32 with that of the High Courts under Article 226, and explain why Article 32 is itself a Fundamental Right. [6 marks]

8.16 Source & Passage-Based Questions

  1. Read the extract and answer the questions that follow.

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

a. Identify the Article from which this extract is taken. [1 mark]
b. The Article uses the word 'person' and not 'citizen'. Explain what follows from that choice. [2 marks]
c. A State government frames a scheme giving scholarships only to students whose annual family income falls below a stated figure. Applying this Article, explain whether the scheme amounts to unconstitutional discrimination. [3 marks]
  1. Read the situation and answer the questions that follow.

A group of workers is brought from another district to a brick kiln. Their employer pays them an advance, houses them on the premises, and pays a daily wage well below the minimum fixed under law. He tells them they may leave only when the advance has been worked off. No one is beaten, and no one is locked in.

a. Name the Fundamental Right that is engaged by these facts, and the Article that contains it. [2 marks]
b. The employer argues that the workers came voluntarily and are free to walk away. Explain how the meaning given to the word 'force' answers this argument. [3 marks]
c. Name one law made by Parliament that gives effect to this Article, and state what it does. [2 marks]
  1. Read the situation and answer the questions that follow.

A district administration issues an order prohibiting all public meetings in the town for one month. The order gives no reasons. A residents’ association that had planned a peaceful meeting about the condition of local roads challenges the order in the High Court.

a. Which freedom under Article 19 has been affected, and under which Article may the association approach the High Court? [2 marks]
b. State the grounds on which the Constitution permits this freedom to be restricted. [2 marks]
c. Explain what the court would have to be satisfied of before upholding the order. [2 marks]
  1. Read the description of a cartoon and answer the questions that follow.

A cartoon shows a large open book labelled ‘Part III’ lying on a table. A figure in judicial robes holds a magnifying glass over one page. Behind him, a queue of ordinary people stretches out of the frame, and the first person in the queue is holding up a sheet of paper labelled ‘Petition’.

a. Which Fundamental Right is the cartoon commenting on? Name the Article. [1 mark]
b. Explain what the cartoonist is suggesting by drawing the queue stretching out of the frame. [2 marks]
c. State one thing this cartoon cannot tell us about the working of the right it depicts. [2 marks]