Fundamental Rights under Part-III

Part-III is magna carta of the Constitution, it’s an

integral part of the constn. Speaks about basic human rights,
which are fundamental without which humans cannot
survive.
human rights means the rights relating to life, liberty, equality
and dignity of the individual guaranteed by the Constitution
These rights ensure the fullest physical, mental and moral
development of every citizen.
Arts. 12-35 deals with fundamental rights.

What is right?
It is an interest or privilege recognized and protected by law.
 Need for Fundamental Rights
Fundamental Rights were deemed essential to protect
the rights and liberties of the people against the
encroachment of the power of the govt.
It’s an attempt to protect the individual from
oppression and injustice. These rights are regarded as
fundamental because they are most essential for
attainment by the individual or his full intellectual,
moral and spiritual status. The negation of these
rights will keep the moral and spiritual life stunted and
his potentialities undeveloped.
 Features of Fundamental Rights
• Fundamental Rights are an indispensable part of our
Constitution. Parliament can amend Fundamental
Rights by a special procedure.
• Fundamental Rights are only for Indian citizens. No
alien is permitted to enjoy these rights except right to
life, liberty and personal property.
• Fundamental Rights are not absolute. Therefore within
some reasonable restrictions citizens can enjoy them.
Fundamental Rights without prescribed conditions
may disrupt public order.
• Some Fundamental Rights are positive while some
others are negative in nature.
• Fundamental Rights are suspendable during the time of
emergency and rights of the citizen are curtailed
temporarily except right to life and personal liberty
(article-20-21)
• Fundamental Rights are justifiable also. A citizen can go to the
court for enforcement of his Fundamental Rights if some one
violates them. Under Article 32 and Article 226 of the Indian
Constitution, a citizen can approach the Supreme Court and
High Court respectively in this regard.
• Fundamental Rights aim at restoring collective interest along
with individual interest.
• Fundamental Rights are superior to ordinary law of the land.
They are conferred a special sanctity(very imp and deserves
respect). These are entrenched(which cannot be changed) one
Justiciability and enforceability of Fundamental
Rights
Art. 13 – Laws inconsistent with Fundamental Rights :-
this is the key provision as it gives teeth to the
Fundamental Rights and makes them justiciable. The
effect of Art. 13 is that the Fundamental Rights
cannot be infringed by the govt either by enacting a
law or through administrative action.
Art. 13 makes the judiciary as the guardian, protector &
the interpreter of the Fundamental Rts.
If courts has deprived of power of judicial review then
fundamental rights become “mere adornment” they
become right without remedy.
Art. 12 ‘State’
Most of the Fundamental Rights are claimed against the State and
its instrumentalities and not against private bodies.
Art. 12 definition of State: State includes;
• The Government and Parliament of India
• The Government and Legislature of each State
• Local or other Authorities within the territory of India or under
the control of the Govt of India.
This is inclusive definition, the impression “other authorities” has
been expanded to give better enforceability to Fundamental
Rights. Ex; statutory bodies, govt companies and public
corporations etc
Case law : Ajay Hasia v. Khalid Mujib
CSIR(Council of Scientific and Industrial Research) was held as
State
Classification of Fundamental Rights
The Fundamental Rights in the Indian Constitution can
be classified under the following six heads;
1. Right to Equality comprising Arts. 14 to 18, of which
Art. 14 is the most important.
2. Right to Freedom comprising Arts. 19 to 22, which
guarantees several freedoms, of which freedom of
speech is most important.
3. Right against Exploitation consists of Arts. 23 and 24.
4. Right to Freedom of Religion is guaranteed by Arts 25
to 28.
5. Cultural and Educational Rights are
guaranteed by Arts 29 and 30.
6. Right to Constitutional Remedies is secured by
Arts. 32 to 35.
These Arts provide the remedies to enforce
the Fundamental Rights, and of these the
most important is Art. 32.
 Right to Equality (Arts. 14-18)
The Constitution guarantees the right to Equality through
arts. 14-18.
“Equality is one of the magnificent corner-stones of Indian
democracy”.
The doctrine of equality before law is a necessary corollary
of Rule of Law which pervades the Indian Constitution.
Art. 14 embodies the general principles of equality and
prohibits unreasonable discrimination b/w persons
Art. 15, 16, 17 and 18 lay down specific application of
general principles of equality lay down in art. 14
Art. 14 is genus and 15,16, 17 and 18 are the species.
In case of M.G.Badappanavar v. State of Karnataka
“Equality is a basic feature of the Constitution of
India and treatment of equals unequally or
unequals as equals will be violation of basic
structure of the Constitution of India”
Art.14 bars discrimination and prohibits
discriminatory laws.
Art.14 declares that; “The State shall not deny to any
person equality before the law or the equal
protection of the laws within the territory of India”.
 Two concepts in Rt to equality
Equality before law Equal protection of law
It is negative concept which
It is a positive concept
ensures that there is no
special privilege in favour of implying equality of
any one, that all are equally treatment in equal
subject to the ordinary law of circumstances. it postulates
the land and that no person the application of the same
whatever be his rank or law alike and without any
condition, is above the law. discrimination to all persons
It has certain exceptions that similarly situated.
foreign diplomats, President The rule is that like should be
Governor etc are having
treated alike
special privileges.
Art.14 bars discrimination and prohibit discriminatory
laws and now it is proving as a bulwark against any
arbitrary or discriminatory state action.
Art.14 prescribes equality before law,
All persons are not equal by nature, attainment or
circumstances therefore a mechanical equality before
the law may result in injustice.
The same application of same laws at different situation
also creates inequality.
Thus it makes way for a reasonable classification, which
is not arbitrary, artificial or evasive
 Case laws
In Ajay Hassia v. Khalid Mujib, the rule stating that
allocation of 1/3rd of total marks for oral
interview was held plainly arbitrary and
unreasonable and violative of Art.14
In Air India v. Nargesh Meerza
A regulation providing for termination of service
of an air hostess in Air India International on
her first pregnancy has been held to be
arbitrary and abhorrent(morally very bad) to
the notions of a civilised society.
No Discrimination on grounds of Religion,
Race, Caste etc.
Art.15(1) 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 ‘discrimination’ involves an element of unfavourable
bias. It is unfavourable treatment.
The word ‘only’ connotes that discrimination purely and solely
on account of any of the grounds mentioned.
Case Law:
In re Shaikh Husein Shaik Mahomed, A law which penalised old
offenders born outside Greater Bombay, but exempted those
born inside Greater Bombay was held to be discriminatory on
the ground of place of birth.
(2) No citizen shall, on grounds only of religion, race, caste, sex,
place of birth or any of them, be subject to any disability,
liability, restriction or condition with regard to-
(a) Access to shops, public restaurants, hotels and places of
public entertainment
(b) The use of wells, tanks, bathing ghats, roads and places of
public resort maintained wholly or partly out of State funds
or dedicated to the use of the general public.
No law, custom or usage could authorise any person to
prevent any Harijans, depressed classes or the like
from having access to the public places
Special provision for women and
children
Art.15(3) is one of the exceptions to the general rule
laid down in clauses (1) and (2)
This provisions states that nothing in Art.15 shall
prevent the State from making any special provision
for women and children.
The purpose is to eliminate this socio-economic
backwardness of women and to empower them
Ex; special maternity benefits, extra care during
pregnancy etc
 Special provision for advancement of Backward
Classes
Art. 15(4) is another exception to the clauses (1) and
(2), this was added by the 1st Constitutional
amendment in 1951.
It declares that, the State is not prevented from making any
special provisions for “the advancement of any socially and
educationally backward classes of citizens or for the Scheduled
Castes and the Scheduled Tribes”.
Case: State of Madras v. Champkam Dorairajan, in this case
Madras Govt’s Communal G.O. allotted seats to medical and
eng colleges based on caste and communities like Non-
Brahmin, Brahmin, Harijan, Backward Hindus etc. It was held
invalid as it is based on caste.
This special provision is for upliftment of socially and
educationally backward classes.
It is “Positive discrimination” or “protective discrimination”
This article has wider scope, State can take several kinds of
positive action programmes in addition to reservations.

In Balaji v. State of Mysore, an order was passed u/art. 15(4),

reserving seats in the Medical & Eng. Colleges in the State like
Backward 28%, more backward 20%,SCs&STs 18% etc, thus
68% of seats were available for reserved, only 32% was made
available to merit pool. This was challenged and court held
that the order was not justifiable, as classification was made
solely on caste bases, court held that caste shall not be
predominant factor and reservation should less than 50%.
Art.15(5) states that State can make special
provisions for the advancement of any socially
and educationally backward classes of citizens
or for the SCs or the STs relating to their
admission to educational institutions including
private aided or unaided
Equality of Opportunity in Public
Employment
Art.16(1) is a facet of Art.14
Art.16(1) takes its roots from Art.14 and it particularizes
the generality of art.14 and identifies, in a
constitutional sense, “equality of opportunity” in
matters of employment under the state.
Art.16(1) guarantees equality of opportunity to all citizens “in
matters relating to employment” or “appointment to any
office” under the state.
Equal protection of the laws does not postulate equal treatment
of all persons without distinction, it merely guarantees the
application of the same laws alike without discrimination to all
persons similarly situated.
Art.16 does not bar a reasonable classification of
employees & it does not prevent the State from
prescribing the necessary qualifications & selective tests
for recruitment for Govt services.
Classification can be made on a rationale differentia
without any arbitrariness and evasiveness.
Educational qualification is an acceptable criterion for
determining suitability for any appointment to a
particular post or cadre.
Such qualifications can be made the basis for classification
of employees in State service in the matter of pay scales,
promotions, etc.
Equality of opportunity of employment means equality as
between members of the same class of employees and
not equality between members of separate, independent,
classes.
Art16(2) lays down specific grounds on the basis of which
citizens are not to be discriminated against each other in
respect of any appointment or office under the State. The
prohibited grounds of discrimination are religion, race,
caste, sex, descent, place of birth or residence.
Case Laws
In Gazula Dasharatha Rama Rao v. State of Andra Pradesh,
Supreme Court held that, appointment based on the
hereditary principle are bad because ‘descent’ is a
prohibited ground of discrimination u/art.16(2)
In C.B. Muthamma v. Union of India, a provision in
service rules requiring a female employee to obtain
the permission of the Govt in writing before her
marriage is solemnized and denying her the right to be
promoted on the ground that the candidate was
married woman was held to be discrimination against
woman and hence unconstitutional.
Clause (3) Residence can be a ground for Reservation of
Posts
Its an exception to art16(2) which forbids discrimination
on the ground of residence, according to this provision
state can make certain reservation on the basis of
residence.
Clause(4) Reservation for Backward Classes
Art.16(4) is another exception to the general embodied in
Arts.16(1) and (2).
It empowers the State to make special provision for the
reservation of appointments of posts in favour of any
backward class of citizens which in the opinion of the State
are not adequately represented in the services under the
State.
In case of Devadasan v. UOI, the Supreme Court held that the carry
forward rule is unconstitutional as it affects the rights of other
communities, the power vested in the Govt u/art.16(4) could not
be exercised so as to deny reasonable equality of opportunity in
matters of public employments for members of other
communities who does not belong to backward community.
Indra Sawhney v. Union of India-The Mandal
Commission case
This is the historic case in which the scope and extent of the
art.16(4) was examined thoroughly. The views of Supreme
Court are as follows;
1. Backward class of citizen in art.16(4) can be identified on
the basis of caste and not only on economic basis.
2. Creamy layer must be excluded from backward classes.
3. Classification of backward classes into backward and
more backward classes.
4. Reservation shall not exceed 50 percent.
5. No reservation in promotions.
6. Permanent statutory body to examine complaints of over-
inclusion/under-inclusion.
Supreme Court directed the Union Govt., State Govts, to appoint a
permanent statutory body to examine complaints of ‘wrong
inclusion or non-inclusion of groups’, classes and sections in
the list of other backward classes. (helpful in determining
creamy layer)
This landmark judgment has solved many of the reservation crisis
in the matters of public employment.
Case Law:
In Ashoka Kumar Thakur v. St. of Bihar it was held that person
belonging to a backward class who becomes a member of the
IAS, IPS or any other All India Service could not seek benefits
of reservation for his children.
Art.16(4-A) State can make provisions for
reservation in matters of promotion to any
class or classes of posts in the services of the
State in favour of the SCs and STs which in the
opinion of the State, are not adequately
represented in the services under the State.
This shows the political lobby.
Art. 17 Abolition of Untouchability
Art. 17 abolishes ‘untouchability’ and forbids its
practise in any form.
The enforcement of any disability arising out of untouchability is
to be an offence punishable in accordance with law.
It declares that forbidden of ‘untouchability’ is not to be
henceforth practised in any form.
The object is to liberate the society from blind and ritualistic
adherence and traditional belief which has lost all legal or
normal base.
It seeks to establish new ideas for society-equality to the Dalits at
par with general public, absence of disabilities, restrictions or
prohibitions on grounds of caste or religion.
Art. 18 Abolition of Titles
Art.18(1) prohibits the state from conferring any ‘title’
except a military or academic distinction.
Art.18(2) prohibits citizens of India from accepting any
title from a foreign govt.
Art18(3) provides that a foreigner holding any office of
profit or trust under the State cannot accept any title
from any foreign State without the consent of the
President. This is to ensure loyalty to the Govt he
serves for time being & to shut out all foreign
influence in govt affairs or administration.
Art.18(4) any person holding any office of profit
under the state shall not accept any
emolument or any office from the foreign
countries without the consent of the
President.
In Balaji Raghavan v. UOI, Supreme Court has ruled
that the national awards like “Bharat Ratna”,
“Padma Vibhushan” etc., awarded by the Govt of
India are not ‘titles’ within the meaning of
Art.18(1). These awards are not violative of the
principles of equality.
Right to Freedom (Arts.19-22)
Art.19 guarantees to the citizens of India six
freedoms, those are
Art.19(1)(a) Speech and expression
Art.19(1)(b) peaceable assembly without any arms
Art.19(1)(c) form association or unions
Art.19(1)(d) free movement throughout the territory of
India
Art.19(1)(e) residence
Art.19(1)(f) rt to property, has been removed.
Art.19(1)(g) practice any profession and carry on any
occupation, trade or business.
These various freedoms are necessary not only to promote
certain basic rights of the citizens but also certain democratic
values in, and the oneness and unity of the country.
Art.19 guarantees some of the basic, valued and natural rights
inherent in a person. These are available to citizens of India.
Foreigner enjoys no rights u/art.19.
However, these freedoms are not absolute. Absolute individual
rights cannot be guaranteed by any modern State.
There cannot be any right which is injurious to the community as
a whole.
If people were given complete & absolute liberty without any
social control the result would be ruin.
Liberty has got to be limited, liberty of one person must not
offend the liberty of others.
 Reasonable restrictions Arts.19(2)-19(6)
State can impose certain reasonable restrictions on the
rights conferred u/art.19 in the interest 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.
Restrictions to be constitutionally valid must satisfy
following 2 tests;
1. The restriction must be for the purposes mentioned
in the clauses 2 to 6 of art.19
2. The restrictions must be reasonable.
Reasonable restrictions means that the restrictions imposed
on a person in the enjoyment of his right should not be
arbitrary or of an excessive in nature, beyond what is
required in the interests of the public.
Freedom of Speech and expression
Art.19(1)(a)
Importance of freedom of Speech
Freedom of speech is the bulwark (which protects from
danger) of democratic govt. This freedom is essential for
the proper functioning of the democratic process. It is
regarded as first condition of liberty.
In a democracy, freedom of speech & expression opens up
channels of free discussion of issues. It plays a crucial
role in the formation of public opinion on social, political
and economic matters.
It serves following purposes;
1)Helps individual to attain self-fulfillment
2)Assists in discovery of truth
3)Strengthens the capacity of an individual in participating in
decision making
Freedom of speech & expression means the right to express
one’s own convictions and opinions freely by words of mouth,
writing, printing, pictures or any other mode. It thus includes
the expression of one’s ideas through any communicable
medium or visible representation, such as, gesture, signs, and
the like.
Implicit rights in freedom of speech
Freedom of press
The expression connotes publication also so freedom speech &
expression also includes freedom of press. Free propagation
of new ideas is the necessary objective.

In Sakal Papers v. UOI, an order fixing a minimum price & number

of pages for newspaper was held unconstitution & violative of
freedom of press.
Auto Shankar Case in this case Supreme Court held that Govt has
no authority in law to impose a prior-restraint upon
publication of defamatory materials against its officials. Court
ordered for the publication of autobiography of Auto Shankar,
a condemned prisoner who had been charged for as for as
many six murders.
Rt to receive Information
The freedom of speech & expression involves not only
communication, but also includes right to acquire information
and disseminate the same.
Right to Silence
In Bijoe Emmanuel v. St of Kerala popularly known as the National
Anthem case, Supreme court has held that no person can be
compelled to sing the National Anthem, “if he has genuine
conscientious objections based on his religious faith”. In this
case 3 students were expelled out from the school for not
singing the National Anthem, but they were respectfully stood
up when Anthem was being sung, according to them singing
anthem was against their religious faith. Court held that they
have given respect and expulsion from the school is violation of
art.19(1)(a) which also includes freedom of silence.
Restrictions u/Art.19(2)
It is necessary to place some curbs on the freedom of
speech and expression to maintain such right in the
democracy.
Grounds of restrictions
State can impose restrictions in the interest of;
(a) Security of the State and Public order
(b) Sovereignty and integrity of India
(c) Friendly relations with foreign states
(d) Incitement to an offence
(e) Decency or morality
(f) Contempt of court
(g) Defamation
Right to Assembly (Arts.19(1)(b) & 19(3)
Art.19(1)(b) guarantees to all citizens of India right “to
assemble peaceably and without arms”.
The right to assembly includes the right to hold
meetings and to take out processions.
This right is subjected to following conditions;
1)The assembly must be peaceable;
2)It must be unarmed;
3)Reasonable restrictions can be imposed u/art.19(3)
State can impose certain restrictions in the interest of
public order, and sovereignty & integrity of India.
Rights to form Association
(Arts.19(1)(c) & 19(4)
Art.19(1)(c) guarantees to the citizens of India the right
to form associations or unions.
Art.19(4) declares that reasonable restrictions in the
interest of public order or morality or sovereignty and
integrity of India may be imposed on this right by law.
This right is the very lifeblood of democracy. Without
such a right, political parties cannot be formed, &
without such parties a democratic form of govt
cannot be run properly.
Right not to form association
Declaration of association as unlawful one.
Rights to Movement (Arts.19(1)(d) & 19(5)
Art.19(1)(d) guarantees to all citizens of India the right
“to move freely throughout the territory of India”.
Under Art.19(5) State can impose reasonable
restrictions in the interest of general public or for the
protection of interests of any Scheduled Tribe.
Wearing Helmets
In Ajay Canu v. UOI, it was held that a rule made under the
Motor Vehicles Act requiring compulsory wearing of helmet
by a person driving a scooter or motor cycle is not violative
of right to move freely, it is justifiable u/art.19(5) as
reasonable restriction for the benefit of public.
Rights of Residence (Arts.19(1)(e) & 19(5)

According to Art.19(1)(e) every citizen of India has the

right “to reside and settle in any part of the territory
of India.”
This right underlines the concept that India is one unit
so far as the citizens are concerned.
Reasonable restrictions can be imposed in the interest
of general public and for the protection of STs.
Rights to carry on Trade & Commerce
(Arts.19(1)(g) & 19(6)
Art.19(1)(g) guarantees to all citizens the right to
practise any profession, or to carry on any
occupation, trade or business.
This right is however subjected to reasonable
restrictions made in the interest of general public.
State is not prevented from making-
i)A law relating to professional or technical
qualifications necessary for practising a profession or
carrying on any occupation, trade or business.; or
ii) A law relating to the carrying on by the state,
Case Laws
Liquor Trade: In Khoday Distilleries Ltd. V. State of
Karnataka, it was held that no person has
fundamental right to do liquor trade, as it is against
the social order or public morality, state can impose
severe restrictions on such trade.
In Om Prakash v. St of UP. It was held that Prohibition
on sale of eggs within the municipal limits of
Rishikesh is a reasonable restriction.
In MRE Ltd. V. Inspector, Kerala Govt, it was held that
an order increasing the number of holidays is not
violative of art. 19(1)(g).
Protection in respect of conviction for
offences (Art.20)
Art. 20 provides the following safeguards to the
persons accused of crimes;
(a) Ex Post Facto Law – art.20(1)
(b) Double jeopardy – art.20(2)
(c) Prohibition against self-incrimination- art. 20(3)
Art. 20(1) provides the necessary protection against an
ex-post-facto law.
An ex-post-facto law is a law which imposes penalties
retroactively.
Art.20(1) says that no person shall be convicted of any offence
except the violation of law in force at the time of the
commission of the act charged as an offence nor be subjected
to a penalty greater than that which might have been inflicted
under the law in force at the time of the commission of the
offence.
2 parts of art. 20(1)
Case Laws: In Kedar Nath v. St of West Bengal, the accused
committed an offence in 1947, which under the Act then in
force was punishable by imprisonment or fine or both. The Act
was amended in 1949 which enhanced the punishment,
Supreme Court held that enhanced punishment is not
applicable to the act committed in 1947.
In Ratanlal v. St of Punjab, a boy of 16 years was convicted for
committing an offence of house trespass and outraging the
modesty of girl aged 7 years. He was sentenced for rigorous
imprisonment and fine, but after the judgment the Probation of
Offenders Act, 1958, came into force. It provided that a person
below 21 years should not ordinarily be sentenced to
imprisonment. The court applied the principle of beneficial
interpretation and held that this can be applied retrospectively.
Art.20(2) Protection against double jeopardy
It says that no person shall be prosecuted and punished for the
same offence more than once.
Art.20(3) Prohibition against self-incrimination; it declares that
no person accused of any offence shall be compelled to be a
witness against himself.