Fundamental Rights -Part III

Fundamental Rights

Fundamental Rights of Individual are regarded as fundamental because they are the most indispensable assets for the attainment by an individual of his fullest intellectual, physical and spiritual stature and thus realization of true democracy.

Fundamental Rights prohibits unreasonable interference of State in the exercise or enjoyment and also prohibits legislature and executive (i.e. state as defined by Article 12) from becoming arbitrary or Authoritarian.

Ordinary Legal Rights may be changed by the legislature in its ordinary process of legislation, a fundamental right being guaranteed by the Constitution cannot be amended by any process shorter than that required for amending the Constitution(by Special majority).

FRs cannot be suspended or abridged except in the manner laid down in the Constitution itself. No Organ of state can act in contravention of such rights and any law or act which is repugnant to such rights must be void.


In 1931, the Indian National Congress in its Karachi Session, presided over by Sardar Patel had adopted a resolution on Fundamental Rights.

Objective Resolution In the early moves towards constitution making.

In case of violation of legal rights, the aggrieved person can get relief by filing an ordinary suit in the subordinate courts or by writ application to the High Court, which are subject to appeals where as in the case of violation of fundamental right, an individual is entitled to approach the Supreme Court directly.

FRs provide protection only against state action and do not safeguard against the action of Private Individuals, except the rights pertaining to abolition of Untouchability and the right against exploitation. In these two cases FRs available both against the State and Individuals.

FRs granted to individuals are not absolute rights. They are qualified rights in the sense that these rights are subject to reasonable restrictions imposed by the state, on their use and exercise in the name of national interest, security and general welfare of the society. It is for Supreme Court and High Courts to decide whether the restrictions imposed are reasonable or not.

Constitution of India provides for 6 categories of Fundamental Rights but all of them do not carry weight. Generally Personal Rights are preferred over other rights when any legislation is reviewed by the court.

Judicial Review

Judicial Review is the power of Superior Court (i.e. Supreme Court & high court) to declare a law unconstitutional and void if it is inconsistent with the provision of the Constitution to the extent of such inconsistency. Under Article 13 of the Constitution the power of Judicial Review is available to the courts in the contravention of FRs not only against the legislature but against the executive as well.

Amendment of Fundamental Rights

Art. 13(2) states that the state shall not make any “law” which takes way or abridges the rights conferred by part 3 of the Constitution, and any law made in contravention of the Art. 13(2) shall to the extent of contravention be void

Constitutional ambiguity with regard to Amendment of Fundamental Rights

Whether the “law” stated in Art.13 (2) means general law or Constitutional Amendment. If it means “general law” than all FRs can be amended otherwise Fundamental Rights (FRs) are unamendable.

Important Judgments on Fundamental Rights

The Supreme Court starting from Shankari Prasad V/S Union Of India (1951) to Sajjan Singh V/s State of Rajasthan (1965) held in a number of cases that the word “law” as found in Art. 13(2) means ‘rules and regulations made in exercise of ordinary legislative power’ and not to ‘Amendments to the constitution made in exercise of constituent power of parliament. The SC was of the view that Parliament bu using its amending powers under Art.368 can amend any part of the Constitution including Part III.

But in Golaknath V/s State of Punjab (1967) case, the Supreme Court overruled its earlier decision and held that the Fundamental Rights had been given a “transcendental position” by the Constitution. So no authority functioning under constitution has power to amend the constitution including Parliament exercising its amending power under Art.368. The court was of the view that the word ‘law’ in Art 13(2) included amendment to the constitution as well.

24th Constitutional Amendment Act, 1971:

Parliament amended Arts. 13 and 368 to make it clear that Parliament has the power to amend any part of the Constitution, including part III and word “law” as used in Art.13 does not include a Constitutional Amendment Act. 24th Constitutional Amendment Act was challenged before Supreme Court in the Kesavananda Bharti V/s State of Kerela case in 1973. The Court held that Parliament has power to amend any provision of the Constitution under Art. 368, including fundamental Rights enshrined in the part III of the Constitution. However, the court held that the Parliament’s amending power is subject to Basic Structure of the Constitution. The Concept of Basic Structure is nowhere found in the Constitution. It is a judicial innovation and was created in the Kesavananda Bharti V/s State of Kerela case in 1973. The Court held that if an amendment act passed by the parliament, destroys the basic structure of the constitution, then to the extent of its destruction the Act would be void.

However Supreme Court has nowhere defined “Basic Structure” but from various judgments the following has emerged as the basic features such as supremacy of the Constitution, Sovereign, Democratic and Republican nature of the Indian Polity, Secular character of the Constitution, Separation of Powers between different forms of Govt., Judicial Review, Free & Fair elections, rule of law, unity and integrity of the nation, welfare state, parliamentary form of the government.

Rule of Law:

Rule of law is an integral feature of a democracy. In India “Rule of law” find expression in Article 14 which emphasizes equality and equality before law. The most clear and accepted explanation of rule of law was given by A.V. Dicey that originated in England. According to him the basic principles of rule of law are:

  1. No person can be punished or made to suffer in body or goods except for the violation of law. Such a violation must be established in an ordinary court of the land in an ordinary legal manner.
  2. No person is above law and all persons are subject to the ordinary law of the land without any distinction of rank or position and are subject to jurisdiction of the ordinary courts.
  3. The constitution is the supreme law of the land and all laws passed by the Legislature must conform to the provisions of the Constitution.

The Supreme Court has placed rule of law under Art. 14 in the category of Basic structure of the Constitution. The president, Governor, foreign diplomats, ambassadors representing foreign governments etc. are exceptions to the practice of rule of law.

Principles of Natural Justice

  1. No person can be a judge in his own cause.

This is why judges recuse themselves from hearing case when near/dear ones are party.

  1. Both sides must be heard
  2. There should be no bias and the authority must act honestly in an impartial manner.

Classification of Fundamental Rights

  1. Right to Equality(Art. 14 – Art. 18)
  2. Right to Freedom(Art. 19 – Art. 22)
  3. Right against Exploitation (Art. 23 – Art. 24)
  4. Right to Freedom of Religion (Art. 25 – Art. 28)
  5. Cultural and Educational Rights(Art. 29 – Art. 30)
  6. Right to Constitutional Remedies(Art. 32 – Art. 35)

Right to Equality :   Equality before Law and Equal Protection of Law

Article 14 guarantees to all persons equality before law and equal protection of law. The first expression means that everyone is equal before law whatever caste, class or social status one comes from. It is more of a negative concept. Everyone is subject to the jurisdiction of the court and equally. There are few exceptions:-

Exception 1: The president or the Governor of a state shall not be answerable to any court for the exercise and performance of the powers and duties of his office.

Exception 2: No Civil proceeding whatsoever shall be instituted or continued against the president or a Governor in any Court during his term of office.

Exception 3: No civil proceeding in which relief is claimed against the president or the Governor of a state shall be instituted during his term of office in any court, until the expiration of two months after a notice is served on him. These immunities shall not bar impeachment of president or suits or other proceedings.

Exception 4:  Exception in favour foreign diplomats due to Vienna Convention.

On the other hand, the expression equal protection of laws is a positive concept which means that among equals, the law should be equal and equally administered. “Like should be treated alike”.

Art. 14 does not mean that same rules of law should be applicable to all persons. It only means that all persons similarly placed shall be treated alike both in privileges conferred and liabilities imposed. In other words, Art. 14 ensures equality among equals. Art. 14 therefore does not forbid classification of people. However in order to be valid a classification must not be arbitrary but must be rational. Thus the Legislature may (i) exempt certain classes of property from taxation such as charities, libraries, etc., (ii) impose differential tax rates upon different trades and profession, (iii) tax, income and property of individuals in different manner, etc.

Right against Discrimination (Art. 15)

Article 15 directs that the state shall not discriminate against a citizen on grounds only of religion, race, caste, sex or place of birth or any of them. The second clause prohibits citizen themselves as well as the state from making such discrimination with regard to access to shops, hotels, etc. The first caluse of Article 15 mentions the prohibited grounds in any matter which is within the control of the state. The second clause prohibits both the state and private individual who are in control of the public place mentioned in that clause. The third clause gives power to state to specially protect women and children. The Fourth clause has been added to Art. 15 by the First Constitutional Amendment Act, 1951, in order to give special protection to backward classes of Scheduled Castes and Scheduled Tribes. The Fifth Clause was introduced by 93rd Constitutional Amendment Act, 2005. It empowers the state for making special provisions by law for the advancement of any social and educationally backward classes of citizen for the admission to educational institution whether aided or unaided except minority educational institutions.

Note: The word ‘Only’ means in this context two things-

 1. Discrimination on grounds other than religion, race, caste, sex or place of birth is not prohibited.

  1. Discrimination based on any of these stated grounds and also on other grounds is not prohibited by Art. 15.

Equality of Opportunity (Article 16)

Art. 16, Clause (1) and (2) deals with equality of opportunity in public employment. No citizen can be discriminated against or be ineligible for any employment under the State on grounds only of religion, race, caste, sex, descent, place of birth or residence. In Art. 16 clauses 3, 4 and 5 are three exceptions to the general rule of equality of opportunity.

It should be noted that Art. 16 does not prevent state from prescribing the necessary qualifications and selective tests for recruitment of Government services.

Art. 16(3) is an exception to clause 2 which forbids discrimination on the grounds of residence. There may be reason to reserve certain posts in state for residents only. This Article empowers parliament to regulate by law the extent to which it would be permissible for a state to depart from above principle.

Art. 16(4) is the second exception to the general rule embodied in clause (1) and (2). It empowers state to make special provision for the reservation of appointments or posts in favour of backward class of citizens which in opinion of state is not adequately represented in the services under the state. Art. 16(4) applies only if two conditions exists:

  1. The class of citizen is socially and educationally backward
  2. The Class of citizen is not adequately represented in the Services under the state. The second test cannot be the sole criterion.

Art. 16(4A) introduced by the Constitution’s 77th Amendment Act, 1995: provides for reservation of seats in promotion of Scheduled Castes and Scheduled Tribes.

Art. 16(4B) introduced by the Constitution’s 81st Amendment Act, 2000: provides for carrying over of unfilled vacancies reserved for SC/ST to subsequent years.

Art. 16(5) is the Third exception to the general rule of this Article. Art. 16(5) says that a law which provides that a person holding an office in connection with the affairs of a religious or denominational institution etc., shall be a person professing same religion or belonging to a particular denomination.

Abolition of Untouchability (Article 17):

Forbids practice of Untouchability and abolishes it. Practice or professing of untouchability in any of its form is an offence punishable in accordance with the law.

In exercise of its powers conferred by Art. 35, parliament has enacted the Untouchability Offences Act, 1955. It has been further amended to Civil Rights (Protection) Act, 1976. The 1976 Act has been enlarged to include the following as offences: insulting a member of SC on the grounds of Untouchability, preaching untouchability, justifying untouchability on historical, religious or philosophical grounds or on the basis of the tradition of the caste system. A person convicted of the offence of untouchability shall be disqualified for elections to any legislature. Art. 15(2) also helps in eradication of untouchability by prohibiting denial of access to public places such as tanks, roads , bathing Ghats, public resorts maintained partly or wholly out of state funds or dedicated to the use of general public. The constitution nowhere defines untouchability nor Act passed by Parliament do so. However judiciary has clearly held that social practice among the Hindus which looks down upon certain class of people on account of their birth and discriminates against them on this ground.

Abolition of Titles (Art. 18):  

Art. 18 prohibits State from conferring titles to citizen or non-citizen. Military and Academic distinctions are exempted from this. Padma Awards, Bharat Ratna and Other State Awards are not regarded as title in terms of Art. 18(1) of the Constitution.

Art. 16(2) prohibits a citizen of India from accepting any title from a foreign state. Art. 16(3) provides that a foreigner holding any office of profit or trust under state cannot accept any title from any foreign nation without the consent of the President. Art. 16(4) provides that no person holding any office of profit or trust under the state is to accept without the consent of the President, any gift, emoluments or office of any kind from or under any foreign state.

There is no penalty prescribed for infringement of the above prohibition. Art. 18 is mere directory. It is open for parliament to make a law for dealing with such person who accepts a title in violation of the prohibition prescribed in Art. 18.

Right to Freedom (Article 19):

Article 19 of the Constitution guarantees to the citizens of India the following six fundamental Freedoms:

  1. Freedom of Speech and Expression
  2. Freedom to assemble peacefully and without arms
  3. Freedom to form Association
  4. Freedom of Movement
  5. Freedom of Residence and Settlement
  6. Freedom of Profession, Occupation, Trade or Business

The Freedoms enumerated in Art. 19(1) are natural rights. But none of these freedoms is absolute or uncontrolled and reasonable restrictions can be put in the interests of the general public, security of the state, sovereignty and integrity of India, Public order, decency, morality, friendly relations with foreign states, protection of interest of any SC & ST, etc. A law restricting the exercise of any of the six freedoms guaranteed by clause (1) of Article 19 to be constitutionally valid must satisfy two conditions namely :

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