Fundamental Rights
Part III (Arts 12 to 35) is called the Magna Carta of India. These rights are justiciable: if one is violated, you can go straight to the Supreme Court (Art 32) or a High Court (Art 226). They were borrowed from the US Bill of Rights. Ambedkar called Art 32 "the very soul of the Constitution".
Art 12 and Art 13
- Art 12: "State" includes the Government and Parliament of India, the Government and Legislature of each State, and all local and other authorities within India or under the control of the Government of India.
- Art 13: Any law (including ordinances, bye-laws, rules, customs) that is inconsistent with or takes away a Fundamental Right is void to that extent. This is the basis of judicial review.
- Doctrine of eclipse: an old law that conflicts with a right is not dead but "eclipsed". It revives if the conflict is removed.
- Doctrine of severability: only the offending part of a law is struck down.
- Fundamental Rights cannot be waived by a citizen.
The six groups
| Group | Articles |
|---|---|
| Right to Equality | 14 to 18 |
| Right to Freedom | 19 to 22 |
| Right against Exploitation | 23 to 24 |
| Right to Freedom of Religion | 25 to 28 |
| Cultural and Educational Rights | 29 to 30 |
| Right to Constitutional Remedies | 32 |
The Right to Property (old Art 31) was removed from this list by the 44th Amendment (1978). It is now only a legal right under Art 300A in Part XII.
Right to Equality (Arts 14 to 18)
- Art 14: equality before law (British idea) and equal protection of the laws (American idea). Available to all persons. Reasonable classification is allowed if it has an intelligible differentia and a rational link to the aim. In E.P. Royappa (1974) the Court held that arbitrariness violates Art 14.
- Art 15: no discrimination on grounds of religion, race, caste, sex or place of birth. Special provisions allowed for women and children, for SEBCs/SCs/STs (15(4), added by the 1st Amendment, 1951), for admission to educational institutions (15(5), 93rd Amendment, 2005) and for economically weaker sections (15(6), 103rd Amendment, 2019).
- Art 16: equality of opportunity in public employment. No ineligibility on grounds of religion, race, caste, sex, descent, place of birth or residence. 16(3) lets Parliament prescribe a residence requirement. 16(4) allows reservation for backward classes not adequately represented. 16(4A) promotions for SC/ST. 16(6) EWS.
- Art 17: abolition of untouchability. Punishable under the Protection of Civil Rights Act, 1955 and the SC/ST (Prevention of Atrocities) Act, 1989.
- Art 18: abolition of titles. The State cannot confer titles except military and academic distinctions. Bharat Ratna and Padma awards are not "titles" (Balaji Raghavan, 1996).
Right to Freedom (Arts 19 to 22)
Art 19(1) gives six freedoms to citizens only: (a) speech and expression, (b) assemble peaceably and without arms, (c) form associations, unions or co-operative societies, (d) move freely throughout India, (e) reside and settle in any part of India, (g) practise any profession or carry on any occupation, trade or business. Clause (f), the right to acquire property, was deleted in 1978. Reasonable restrictions are allowed by Art 19(2) to (6). Grounds for restricting speech: sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation and incitement to an offence.
- Art 20: protection in respect of conviction: no ex post facto criminal law, no double jeopardy, no compulsion to be a witness against oneself.
- Art 21: "No person shall be deprived of his life or personal liberty except according to procedure established by law." In A.K. Gopalan (1950) this was read narrowly. In Maneka Gandhi (1978) the Court held that the procedure must be fair, just and reasonable. This opened the door to many new rights: privacy (Puttaswamy, 2017), livelihood (Olga Tellis, 1985), speedy trial, free legal aid, dignity, a clean environment and health.
- Art 21A: free and compulsory education for children aged 6 to 14 (86th Amendment, 2002). The Right to Education Act came into force in April 2010.
- Art 22: rights of an arrested person: to be told the grounds, to consult a lawyer, and to be produced before a magistrate within 24 hours. These do not apply to enemy aliens or to persons held under preventive detention. Preventive detention beyond 3 months needs approval of an Advisory Board of High Court judges.
Right against Exploitation (Arts 23 and 24)
- Art 23: prohibits traffic in human beings, begar and other forced labour. Works against private persons too.
- Art 24: no child below 14 to work in a factory, mine or any hazardous job.
Freedom of Religion (Arts 25 to 28)
- Art 25: freedom of conscience and the right to profess, practise and propagate religion, subject to public order, morality and health.
- Art 26: freedom to manage religious affairs. Art 27: no one can be forced to pay taxes for promoting any religion. Art 28: no religious instruction in State-funded institutions.
Cultural and Educational Rights (Arts 29 and 30)
- Art 29: any section of citizens with a distinct language, script or culture can conserve it. No denial of admission on grounds of religion, race, caste or language.
- Art 30: minorities (religious or linguistic) can establish and administer educational institutions of their choice.
Right to Constitutional Remedies (Art 32)
The right to move the Supreme Court for enforcement of Fundamental Rights. The Supreme Court (Art 32) and High Courts (Art 226) can issue writs. Art 226 is wider because a High Court can also issue them for "any other purpose".
| Writ | Meaning | Use |
|---|---|---|
| Habeas Corpus | "to have the body" | Produce a person detained illegally. Can be issued against private persons too. |
| Mandamus | "we command" | Orders a public official to do a public duty. Not against the President, Governors or private persons. |
| Prohibition | "to forbid" | Higher court stops a lower court from exceeding jurisdiction. Issued while the case is going on. |
| Certiorari | "to be certified" | Quashes an order already passed by a lower court. Issued after the order. |
| Quo Warranto | "by what authority" | Challenges a person holding a public office without legal right. |
Art 33: Parliament can limit rights of the armed forces. Art 34: limits during martial law. Art 35: Only Parliament (not States) can make laws to give effect to certain Fundamental Rights.
Who gets which right
| Only citizens | Citizens and non-citizens |
|---|---|
| Arts 15, 16, 19, 29, 30 | Arts 14, 20, 21, 21A, 22, 23, 24, 25 to 28, 32 |
Reservation: key cases
- Champakam Dorairajan (1951) led to the first amendment adding Art 15(4).
- Indra Sawhney (1992): upheld 27 per cent OBC reservation, set the 50 per cent ceiling, introduced the creamy layer for OBCs, and held that reservation applies at initial appointment.
- Janhit Abhiyan (2022): the Supreme Court (3:2) upheld the 10 per cent EWS quota (103rd Amendment).
- Maratha Reservation case (2021): Maharashtra's quota was struck down for crossing the 50 per cent limit.
Read the full article: Fundamental Rights in the Indian Constitution (Articles 12 to 35).
Keep practising
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Prepared for exam revision from the Constitution of India and standard sources. Office-holders and recent developments change, so check official sources before relying on them. Found a mistake? Tell us.