Rights, bills of rights and the features of Part III

Detail

1. Why rights matter: two Indian stories

• Rights enforced: the Asiad workers case (1982) (People's Union for Democratic Rights v. Union of India)
• Workers building venues for the 1982 Asian Games in Delhi were paid less than the minimum wage.
• The Supreme Court held that paying below the minimum wage is begar (forced labour), which Art. 23 bans.

• The Court enforced minimum wages. A right written on paper became real.

• Rights denied: Machal Lalung

• He was arrested at 23 and held as an undertrial (a prisoner whose trial has not finished).
• He was freed only in July 2005, at 77, after a team of the NHRC (National Human Rights Commission) stepped in.

• Lesson: a right exists only when a remedy works. Delay can wipe out the right to life and liberty (Art. 21).

• Right to livelihood: in Olga Tellis v. Bombay Municipal Corporation (1985), the Supreme Court read the right to livelihood into Art. 21 when it heard the case of pavement dwellers facing eviction. Courts can stretch Part III to cover new needs.

2. What a bill of rights is

• 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) if they are broken.

• Who it guards against:

• Other persons. The State must step in and protect you, e.g. against untouchability (Art. 17) or trafficking (Art. 23).

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

• Magna Carta (1215): the English charter that first limited the king's power. Part III is called India's Magna Carta because it limits the power of the Indian State in the same way.

• The "dominance of the majority" (Class 7, The State, the Government, and You):
• A Resident Welfare Association (RWA) votes to ban deliveries after 9 pm. A majority vote alone cannot cancel the rights of the few residents who need late deliveries.
• Lesson: in a republic, the rule of law (everyone, including the government and the majority, is bound by law) outranks what the majority wants. Fundamental rights protect minorities against majority rule.

3. Global lineage of bills of rights

Year	Document	Key idea
1215	Magna Carta (England)	King's power limited by law
1689	English Bill of Rights	Parliament's rights against the Crown
1789	French Declaration of the Rights of Man and of the Citizen	Liberty and equality as natural rights
1791	US Bill of Rights (first 10 amendments)	Rights enforced by courts against the government
1948	Universal Declaration of Human Rights (UDHR)	Rights for all people everywhere

• The UDHR was proclaimed by the UN General Assembly in Paris on 10 December 1948 (resolution 217 A). It was "a common standard of achievements for all peoples and all nations" [8].
• It was adopted with 48 votes in favour and 8 abstentions. 10 December is now marked every year as Human Rights Day [8].

4. Indian demands for a bill of rights

• Constitution of India Bill, 1895: an early demand for free speech, privacy and equality.
• Commonwealth of India Bill, 1925: pushed by Annie Besant. It asked for rights such as liberty of person and free elementary education.
• Nehru Report, 1928 (Motilal Nehru committee):
• It asked for a full list of fundamental rights. It already included some socio-economic rights [6].

• It said every person of either sex aged 21 or above, and not disqualified by law, should be able to vote [7].

• Karachi Resolution, 1931 (Indian National Congress): its full name was the "Resolution on Fundamental Rights and Economic and Social Change".

• It said political freedom must include real economic freedom for "the starving millions" [6].
• Rights listed: free expression, free association, peaceful assembly, freedom of conscience and religion, equality before law whatever one's caste, creed or sex, and universal adult suffrage (every adult can vote) [6].

• What was new: it put socio-economic rights at the centre of India's goals, with a clear socialist leaning [6].

• Sapru Committee, 1945: it split rights into justiciable (enforceable in court) and non-justiciable (not enforceable in court). This split later became Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy, DPSP).

5. Making Part III in the Constituent Assembly

• Advisory Committee on Fundamental Rights, Minorities, and Tribal and Excluded Areas: chaired by Sardar Vallabhbhai Patel.
• Fundamental Rights Sub-Committee: chaired by J.B. Kripalani.
• Criticism: on 29 April 1947, Somnath Lahiri said the rights were framed "from the point of view of a police constable". He meant there were too many limits on each right and too few real freedoms.

6. 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 (the core features of the Constitution, such as democracy and judicial review)	Ordinary law can make or end them
Enforcement	Directly in the Supreme Court (Art. 32) and the High Courts (Art. 226)	Ordinary courts, through ordinary suits
NCERT phrase	"Promises that must be kept" (Class 7)	—

• Art. 12 defines "the State": the Union and state governments, Parliament, state legislatures, local bodies and "other authorities" such as government-controlled bodies.
• Art. 13 says any law that breaks a fundamental right is void (has no legal force). This is the basis of judicial review (the power of courts to strike down unconstitutional laws).

7. The six groups of fundamental rights

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.

8. Features of Part III

• Not absolute: the State can put "reasonable restrictions" on rights, e.g. Art. 19(2)-(6) for speech, assembly and movement.
• Mostly negative: most rights are limits on the State ("the State shall not…").
• Some positive: some rights ask the State to act, e.g. Art. 21A (free and compulsory education for ages 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 and child labour).
• Justiciable: they can be enforced in court, unlike the DPSP.
• Can be suspended during a national emergency (Arts. 358-359), except Arts. 20 and 21.

9. Who holds the rights

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 by itself. Its shareholders can sue 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).
• NCERT slip to know:
• Class 11 (Rights in the Indian Constitution) says every "citizen" has the Art. 21 right.
• Class 7 (The State, the Government, and You) says fundamental rights belong to "all its citizens".
• In fact, Art. 21 and many other rights protect every person, including foreigners.

10. Constitutional rights outside Part III

These are constitutional rights, not fundamental rights. Courts enforce them through Art. 226 (High Courts) or ordinary suits, not Art. 32.

Article	Right
265	No tax can be levied or collected without the authority of law
300A	No person can lose property except by authority of law
301	Freedom of trade, commerce and intercourse across India
326	Elections on the basis of adult suffrage

11. Comparison: the Constitution of South Africa (1996)

• Constitution of South Africa: adopted in December 1996 after apartheid ended. Its Bill of Rights is in Chapter 2 and is called a "cornerstone of democracy".
• Equality: it bans unfair discrimination on many grounds, from race, gender and pregnancy to marital status, sexual orientation, age, disability, culture, language and birth.
• Socio-economic rights are justiciable: housing, health care, food, water, social security and education.
• These rights are subject to progressive realisation (the State must improve them step by step, as far as its resources allow).
• They are enforced by a Constitutional Court.
• Grootboom (2000): the State's housing plan was held unreasonable because it gave no help to people in desperate need.

• Treatment Action Campaign (TAC) (2002): the State had to make an anti-HIV drug (nevirapine) widely available to stop mother-to-child transmission.

• NCERT's three-list exercise:

Common to India and South Africa	Explicit in South Africa, read into Art. 21 in India	Only Directive Principles in India
Equality, speech and expression, religion, cultural rights	Dignity, privacy, environment, housing (shelter), information	Food, health care, social security

• India got its extra Art. 21 rights through judicial interpretation (judges reading wider meaning into the text). South Africa wrote them into the text. (See dpsp-fundamental-duties.)

12. Limits built into Part III (Arts. 33-35)

Art. 33: restriction of rights of the armed forces

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

• telecommunication staff working for these forces and agencies.

• Laws made under it: the Army Act, 1950, and the Police Forces (Restriction of Rights) Act, 1966. These limit things like joining unions and making political speeches.

• Only Parliament can make such laws. State legislatures cannot.

Art. 34: martial law

• Martial law: military rule over an area when normal order has broken down, for example during a riot or rebellion. The Constitution does not define it.
• Parliament may by law indemnify (legally protect from punishment) any Union or state official, or any other person, for acts done to keep or restore order in the area [3].
• It may also validate (make legally valid) any sentence, punishment or forfeiture ordered under martial law [3].
• How martial law differs:

Point	Martial law (Art. 34)	National emergency (Art. 352)
Area	A specific area only	All of India or any part of it
Text	Not defined; no procedure set out	Detailed procedure in the Constitution
Effect on government	Ordinary courts and government may be suspended	Courts and governments keep working
Effect on rights	Rights hit in that area	Only Arts. 358-359 suspensions

• Not the same as AFSPA: in Naga People's Movement of Human Rights v. Union of India (1998), the Supreme Court upheld the Armed Forces (Special Powers) Act, 1958. It held that deploying the army under AFSPA is not martial law, because civil government continues.

Art. 35: laws only Parliament can make

• Art. 35 gives Parliament alone power to make laws on these subjects [4]:
• Art. 16(3): a residence requirement for certain public jobs in a state;
• Art. 32(3): letting other courts issue writs;

• Art. 33 and Art. 34.

• It also lets Parliament set punishments for offences under Part III, mainly [4]:

• Art. 17 (untouchability), done through the Protection of Civil Rights Act, 1955;

• Art. 23 (forced labour and trafficking), done through the Bonded Labour System (Abolition) Act, 1976.

• Purpose: one law for all of India, not different state laws.

13. Suspension of fundamental rights during an 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 an emergency for war or external aggression, not armed rebellion (44th Amendment, 1978)	Any national emergency
Rights affected	Art. 19 only	Any right named, except Arts. 20 and 21 (44th Amendment, 1978)
Scope	Applies across the emergency	May cover all of India or part of it

The ADM Jabalpur case and its overruling

• ADM Jabalpur v. Shivakant Shukla (1976): during the 1975-77 Emergency, the majority held that people could not seek habeas corpus while the Art. 359 order was in force. Habeas corpus is the writ that orders the State to produce a detained person in court and justify the detention.
• Justice H.R. Khanna dissented. He said the right to life does not depend on the Constitution alone.
• Response by Parliament: the 44th Amendment (1978) made Arts. 20 and 21 non-suspendable.
• Response by the Court: in K.S. Puttaswamy v. Union of India (August 2017), a nine-judge bench held privacy to be a fundamental right under Art. 21, and the majority overruled ADM Jabalpur [9].
• Mechanics are covered in emergency-provisions and history in emergency-1975.

Prelims Hooks

• The 50th Amendment, 1984 extended Art. 33 to intelligence agencies and to the telecom staff of forces and agencies [5].
• Art. 35 gives only Parliament power over laws under Arts. 16(3), 32(3), 33 and 34, and over punishments for Art. 17 and Art. 23 offences. State legislatures have no such power [4].
• Rights for citizens only: Arts. 15, 16, 19, 29, 30. Trap: Art. 14 and Art. 21 also protect foreigners.
• Art. 300A (property) is a constitutional right, not a fundamental right. It is enforced through Art. 226 or a suit, not Art. 32.
• "Martial law" is mentioned in Art. 34 but is not defined anywhere in the Constitution.
• Art. 358 suspends Art. 19 only in an emergency for war or external aggression. Under Art. 359, Arts. 20 and 21 can never be suspended (44th Amendment, 1978).
• Sapru Committee (1945) made the justiciable vs non-justiciable split. The Karachi Resolution (1931) was the Congress's charter of rights plus economic change [6].
• UDHR: adopted on 10 December 1948 by UNGA resolution 217 A, with 48 votes for and 8 abstentions [8].
• Case and principle pairs: Asiad workers (1982) = wages below the minimum are begar. R.C. Cooper (1970) = shareholders can claim Art. 19. Naga People's Movement (1998) = AFSPA is not martial law. Puttaswamy (2017, nine judges) = privacy is a right under Art. 21 [9].
• Chairs: Patel chaired the Advisory Committee. J.B. Kripalani chaired the FR Sub-Committee.

Mains Points

• Rights on paper vs rights in practice: the Machal Lalung case (54 years in jail as an undertrial) shows that Art. 21 means little without speedy trials, legal aid and active bodies such as the NHRC. Reforms: bail reform, wider legal aid and the Asiad-style public interest litigation.
• Restricted rights vs national security: Arts. 33-34 and laws like AFSPA keep forces disciplined and restore order. Critics say the immunity they give weakens accountability. Naga People's Movement (1998) upheld AFSPA but ordered safeguards, a balance worth quoting.
• Lessons from the Emergency: ADM Jabalpur showed that rights can vanish when courts give way to the executive. The 44th Amendment (Arts. 20-21 non-suspendable) and Puttaswamy (2017) [9] made the protections stronger. Khanna J's dissent is a model of judicial independence.
• India vs South Africa: South Africa makes housing, food and health justiciable, subject to progressive realisation (Grootboom, TAC). India leaves them in Part IV and lets judges stretch Art. 21. Debate: should India move some directives into Part III, given the limits of State resources and the separation of powers?