Fundamental rights

Also called: Part III · Topic: Fundamental Rights and Constitutional Remedies · NCERT: Class 7, Ch 9 "From the Rulers to the Ruled: Types of Governments"; Class 7, Ch 10 "The Constitution of India: An Introduction"; Class 7, Ch 6 "The State, the Government, and You"; Class 9, Ch 6 "Democracy"; Class 11, Ch 1 "Constitution: Why and How?"; Class 11, Ch 2 "Rights in the Indian Constitution"

Meaning

Fundamental rights are the basic rights written into Part III of the Constitution (Articles 12-35). They mostly limit the State, and a person can enforce them directly in the Supreme Court (Art. 32) or a High Court (Art. 226). The State may place reasonable restrictions on them. They can be changed only by a constitutional amendment (Art. 368), and even an amendment cannot destroy the basic structure (the core features of the Constitution, such as democracy and judicial review).

Part III is called India's Magna Carta because it limits the power of the Indian State, much as the English charter of 1215 limited the king. It also protects minorities. In a republic, the rule of law (everyone, including the government and the majority, is bound by law) ranks above what the majority wants.

Explanation

What makes a right "fundamental"

• Bill of rights: a list of rights written into a constitution. It does three things:
• It lists the rights.
• It stops the government from breaking them.

• It promises a remedy (a way to get justice in court) when they are broken.

• Who it protects you against:

• The State's own organs: the legislature, the executive, the police and the bureaucracy.

• Other persons: the State must step in and protect you, for example against untouchability (Art. 17) or trafficking (Art. 23).

• Art. 12 defines "the State". It covers:

• the Union and state governments;
• Parliament and the state legislatures;
• local bodies;

• "other authorities", such as government-controlled bodies.

• Art. 13: any law that breaks a fundamental right is void (it has no legal force).

• This is the basis of judicial review (the power of courts to strike down unconstitutional laws).

• Fundamental rights vs legal rights:

Feature	Fundamental rights	Legal rights
Source	Constitution (Part III)	Ordinary law made by Parliament or a state legislature
How changed	Only by constitutional amendment (Art. 368), and never so as to destroy the basic structure	Ordinary law can create or end them
Enforcement	Directly in the Supreme Court (Art. 32) and the High Courts (Art. 226)	Ordinary courts, through ordinary suits

The six groups

Group	Articles	Examples
Right to Equality	14-18	Equality before law; no untouchability (17)
Right to Freedom	19-22	Six freedoms (19); life and liberty (21); education (21A)
Right against Exploitation	23-24	No forced labour; no child labour in factories
Right to Freedom of Religion	25-28	Conscience, practice and propagation
Cultural and Educational Rights	29-30	Minorities' language, script and institutions
Right to Constitutional Remedies	32	Writs from the Supreme Court

• There were seven groups until 1978.
• The 44th Amendment, 1978 removed the right to property (Art. 19(1)(f) and Art. 31).
• Property is now only a constitutional right, under Art. 300A.

Key features and who holds the rights

• Not absolute: the State can put "reasonable restrictions" on these rights. For example, Art. 19(2)-(6) allows limits on speech, assembly and movement.
• Mostly negative: most rights are limits on the State ("the State shall not…").
• Some positive: a few rights require the State to act.

• Example: Art. 21A (free and compulsory education for children aged 6-14), added by the 86th Amendment, 2002.

• Some bind private persons:

• Art. 15(2) (access to shops and wells);
• Art. 17 (untouchability);

• Arts. 23-24 (forced labour and child labour).

• Justiciable (enforceable in court), unlike the Directive Principles of State Policy (DPSP) in Part IV.

• Who holds them:

Holder	Articles
Citizens only	15, 16, 19, 29, 30
Every person (citizens and foreigners)	14, 20, 21, 21A, 22, 23-28

• Companies: a company is not a citizen, so it cannot claim Art. 19 on its own.
• Its shareholders can go to court when the company's rights are hit.
• Cases: R.C. Cooper v. Union of India (1970, bank nationalisation) and Bennett Coleman v. Union of India (1973, newsprint quotas).

Limits built into Part III

• Art. 33 (armed forces): Parliament may decide how far Part III rights are "restricted or abrogated" (limited or removed) for the armed forces and for forces that maintain public order. The aim is to make sure they do their duties properly and keep discipline [2].
• The 50th Amendment, 1984 added intelligence and counter-intelligence agencies, and the telecommunication staff who work for these forces and agencies [5].

• Laws made under it: the Army Act, 1950 and the Police Forces (Restriction of Rights) Act, 1966.

• Art. 34 (martial law): martial law means military rule over an area when normal order has broken down. The Constitution does not define it.

• Parliament may indemnify (legally protect from punishment) officials and other persons for acts done to keep or restore order in that area [3].

• It may also validate (make legally valid) sentences, punishments or forfeitures ordered under martial law [3].

• Art. 35: only Parliament can make laws under Arts. 16(3), 32(3), 33 and 34, and set punishments for offences under Part III, mainly Art. 17 and Art. 23 [4]. State legislatures cannot.

• Suspension during a national emergency:

Point	Art. 358	Art. 359
What happens	Art. 19 is suspended automatically	The President orders that the right to go to court is suspended for named rights
Which emergency	Only one declared for war or external aggression, not armed rebellion (44th Amendment, 1978)	Any national emergency
Limit	Art. 19 only	Never Arts. 20 and 21 (44th Amendment, 1978)

In the Constitution and practice

• Where it sits: Part III, Arts. 12-35. Arts. 32 and 226 provide the remedies. Arts. 358-359 cover suspension during an emergency.
• How Part III came about:
• Nehru Report, 1928: asked for a full list of fundamental rights, including some socio-economic rights [6]. It also said every person of either sex aged 21 or above, unless disqualified by law, should be able to vote [7].
• Karachi Resolution, 1931 (Congress): listed free expression, free association, freedom of religion, equality before law and universal adult suffrage (every adult can vote). It linked political freedom to economic freedom for "the starving millions" [6].
• Sapru Committee, 1945: split rights into justiciable (enforceable in court) and non-justiciable (not enforceable in court). This split later became Part III and Part IV.
• Constituent Assembly: Sardar Patel chaired the Advisory Committee, and J.B. Kripalani chaired the Fundamental Rights Sub-Committee.

• On 29 April 1947, Somnath Lahiri said the rights had been framed "from the point of view of a police constable". He meant there were too many limits on each right.

• Landmark cases:

• People's Union for Democratic Rights v. Union of India (1982, the Asiad workers case): paying below the minimum wage is begar (forced labour), which Art. 23 bans.
• Olga Tellis v. Bombay Municipal Corporation (1985): the right to livelihood is part of Art. 21. The case concerned pavement dwellers facing eviction.
• ADM Jabalpur v. Shivakant Shukla (1976): during the Emergency, the majority held that no one could seek habeas corpus (the writ ordering the State to produce a detained person in court and justify the detention) while an Art. 359 order was in force. Justice H.R. Khanna dissented.
• Parliament's response: the 44th Amendment, 1978 made Arts. 20 and 21 non-suspendable.
• K.S. Puttaswamy v. Union of India (August 2017): a nine-judge bench held that privacy is a fundamental right under Art. 21. The majority also overruled ADM Jabalpur [8].

• Naga People's Movement of Human Rights v. Union of India (1998): the Court upheld AFSPA and held that deploying the army under it is not martial law, because civil government continues.

• The gap between law and practice: Machal Lalung was held as an undertrial from age 23. He was freed only in July 2005, at 77, after the NHRC stepped in. A right is real only when the remedy works.

Don't confuse with

• Legal rights: these come from ordinary law and can be changed by ordinary law. Fundamental rights can be changed only by constitutional amendment and can be enforced directly under Art. 32.
• Constitutional rights outside Part III (Arts. 265, 300A, 301, 326): these are in the Constitution but are not fundamental rights. They are enforced through Art. 226 or an ordinary suit, not Art. 32.
• Directive Principles (Part IV): both came from the Sapru Committee's split. Part III rights are justiciable. DPSP are not enforceable in court.
• Human rights (UDHR, 1948): the UDHR is a UN standard for all people everywhere and cannot be enforced in Indian courts as such. Fundamental rights bind the Indian State and are enforceable under Arts. 32 and 226.

Prelims Hooks

• Rights for citizens only: Arts. 15, 16, 19, 29, 30. Trap: Arts. 14 and 21 also protect foreigners, even though NCERT Class 11 says every "citizen" has the Art. 21 right.
• 44th Amendment, 1978: removed the right to property (now Art. 300A, a constitutional right), made Arts. 20 and 21 non-suspendable under Art. 359, and limited Art. 358 to emergencies declared for war or external aggression.
• 50th Amendment, 1984: extended Art. 33 to intelligence agencies and to the telecom staff of forces and agencies [5].
• Art. 35: only Parliament can make laws under Arts. 16(3), 32(3), 33 and 34, and set punishments for Art. 17 and Art. 23 offences [4].
• "Martial law" is mentioned in Art. 34 but is not defined anywhere in the Constitution.
• Case and principle pairs: Asiad workers (1982) = wages below the minimum are begar. R.C. Cooper (1970) = shareholders can claim Art. 19. Puttaswamy (2017, nine judges) = privacy is part of Art. 21 [8].

Mains Points

• Rights on paper vs rights in practice: Machal Lalung spent 54 years in jail as an undertrial, which shows that Art. 21 means little without speedy trials.
• Needed: bail reform, wider legal aid and active bodies such as the NHRC.

• Public interest litigation of the Asiad kind shows how courts can turn written rights into real ones.

• Lessons from the Emergency: ADM Jabalpur showed that rights can vanish when courts give way to the executive.

• Parliament responded with the 44th Amendment (Arts. 20-21 non-suspendable).
• The Court responded with Puttaswamy (2017) [8].

• Khanna J's dissent remains a model of judicial independence.

• Rights vs security, and India vs South Africa:

• Arts. 33-34 and AFSPA help keep forces disciplined and restore order, but the protection they give officials can weaken accountability.
• South Africa makes housing, food and health enforceable in court, subject to progressive realisation (the State improves them step by step, as far as its resources allow), as in Grootboom (2000) and TAC (2002).
• India keeps these rights in Part IV and lets judges widen Art. 21. The debate is whether India should move some directives into Part III, given its limited resources and the separation of powers.

Related concepts

• Bill of rights
• Magna Carta
• Legal rights
• Constitution of South Africa
• Constitutional rights outside Part III
• Restriction of rights of armed forces
• Martial law
• Article 35
• Suspension of fundamental rights during emergency

Read more

• Rights, bills of rights and the features of Part III