Foundational aspects of Fundamental Rights

When we read Part III, we should not think that Fundamental Rights are like absolute gifts given without conditions. They have certain characteristics that make them special. Let’s see them one by one:

Features of Fundamental Rights

Available to Citizens as well as non-Citizens

• Some rights are only for citizens (like Article 19 – freedom of speech, assembly, movement, etc.).
• Others are available to all persons – which means even foreigners or legal persons (like companies, corporations) can enjoy them.
  • Example: Right to Equality before law (Article 14) is for all persons, not just citizens.

Not Absolute but Qualified

• Rights are not unlimited.
• The State can impose reasonable restrictions in the interest of society.
• Whether such restrictions are “reasonable” or not is finally decided by the courts.
  👉 This ensures a balance between individual liberty and social control.

Primarily Against the State, Sometimes Against Individuals

• Most rights are enforceable against the State only.
• But some rights (like Right against Untouchability – Article 17, or Right against Exploitation – Articles 23, 24) are also enforceable against private individuals.

Negative as well as Positive in Nature

• Negative rights → place restrictions on the State. Example: Article 15 prohibits discrimination by the State.
• Positive rights → confer privileges or demand action from the State. Example: Article 21A – Right to Education.

Justiciable in Nature

• If your Fundamental Right is violated, you can directly approach the courts.
• Courts act as the guardian of these rights.

Defended by the Supreme Court

• You can directly move the Supreme Court under Article 32, without waiting for High Court appeal.
  👉 Dr. Ambedkar called Article 32 the “heart and soul” of the Constitution.

Not Permanent, but Protected

• Fundamental Rights are not sacrosanct or untouchable.
• Parliament can amend them, but only by a constitutional amendment (not by ordinary law).
• And even amendment cannot violate the basic structure of the Constitution (Kesavananda Bharati case, 1973).

Suspension during National Emergency

• During a National Emergency:
  • All rights except Articles 20 (protection in criminal offences) and 21 (right to life and personal liberty) can be suspended.
  • Article 19 rights can be suspended only during external emergency (war or external aggression), not during internal emergency (armed rebellion).

Subject to Special Provisions (Articles 31A, 31B, 31C)

• Certain laws like land reforms (Article 31A), laws in the 9th Schedule (Article 31B), and laws giving effect to Directive Principles (Article 31C) can limit the operation of Fundamental Rights.

Restricted for Armed Forces, Police, etc. (Article 33)

• Parliament can curtail or abrogate Fundamental Rights for members of armed forces, para-military, police, intelligence agencies etc. to ensure discipline and proper functioning.

Restricted during Martial Law (Article 34)

• If martial law (military rule) is imposed in any area, Parliament can restrict Fundamental Rights there.
  👉 Note: Martial law is different from National Emergency. It is local and temporary, used to restore order.

Self-executory or Dependent on Law

• Most rights are directly enforceable (like Article 14 – Equality).
• Some need a law by Parliament to become enforceable.
  • Example: Article 35 says only Parliament (not state legislatures) can make laws to enforce certain rights → like prescribing punishment for untouchability or human trafficking.
    👉 This ensures uniformity across the country.

DEFINITION OF STATE (Article 12)

Now, very important for UPSC: Against whom can you enforce Fundamental Rights?

👉 Answer: Against the ‘State’ (as defined in Article 12).

State includes:

1. Government & Parliament of India – Executive + Legislature of the Union.
2. Government & Legislature of States – Executive + Legislature of states.
3. Local Authorities – Municipalities, Panchayats, District Boards, Improvement Trusts, etc.
4. Other Authorities – This is the broadest term. It includes statutory bodies like LIC, ONGC, SAIL, etc.

⚖️ According to the Supreme Court: Even a private body or agency can be considered ‘State’ under Article 12 if it is performing public functions or is an instrumentality of the State (e.g., government-funded universities, state-controlled corporations).

👉 So, Article 12 gives a very wide meaning to the word State, to make sure citizens can challenge any arbitrary action of State agencies in courts.

✨ In essence: Fundamental Rights are not abstract ideals; they are carefully designed rights with conditions, checks, and balances — powerful enough to protect the individual, yet flexible enough to protect society and the State’s interests.

Laws Inconsistent with Fundamental Rights (Article 13)

👉 Article 13 says:

• If any law is inconsistent with (i.e., contradictory to) or in derogation of (i.e., takes away or reduces) Fundamental Rights → that law shall be void.

In simple words: No law can violate Fundamental Rights.

This is the foundation of judicial review in India.

• Judicial Review means: Courts (Supreme Court under Article 32, High Courts under Article 226) can examine laws and strike them down if they violate Fundamental Rights.

What is ‘Law’ under Article 13?

The Constitution gives very wide meaning to the word “law”:

• Permanent laws made by Parliament or State Legislatures.
• Temporary laws like Ordinances issued by President or Governors.
• Delegated legislation: rules, regulations, bye-laws, notifications, orders made by executive under authority of law.
• Customs or usages that have the force of law.

👉 So, not just Acts of Parliament but even customs or executive orders can be challenged in court if they violate Fundamental Rights.

Can Constitutional Amendments be Challenged?

• Article 13 originally said: “Constitutional Amendment is not a law” → so it cannot be challenged.
• But, in the Kesavananda Bharati case (1973), the Supreme Court held:
  • A Constitutional Amendment can be challenged if it damages the “basic structure” of the Constitution.
  • Fundamental Rights that are part of this basic structure cannot be destroyed even by amendment.

👉 Thus, Parliament’s power to amend the Constitution is not unlimited.

Fundamental Rights at a Glance

Let’s now look at the classification:

(i) Right to Equality (Articles 14–18)

• Article 14: Equality before law and equal protection of laws.
• Article 15: Prohibition of discrimination (religion, race, caste, sex, place of birth).
• Article 16: Equality of opportunity in public employment.
• Article 17: Abolition of untouchability.
• Article 18: Abolition of titles (except military/academic).

(ii) Right to Freedom (Articles 19–22)

• Article 19: Six freedoms (speech, assembly, association, movement, residence, profession).
• Article 20: Protection in conviction for offences (no ex post facto law, no double punishment, no self-incrimination).
• Article 21: Protection of life and personal liberty.
• Article 21A: Right to elementary education.
• Article 22: Protection against arbitrary arrest and detention.

(iii) Right against Exploitation (Articles 23–24)

• Article 23: Prohibition of human trafficking and forced labour.
• Article 24: Prohibition of child labour in hazardous jobs.

(iv) Right to Freedom of Religion (Articles 25–28)

• Article 25: Freedom of conscience and free profession, practice, propagation of religion.
• Article 26: Freedom to manage religious affairs.
• Article 27: No tax for promotion of religion.
• Article 28: No religious instruction in certain educational institutions.

(v) Cultural and Educational Rights (Articles 29–30)

• Article 29: Protection of language, script, culture of minorities.
• Article 30: Right of minorities to establish and administer educational institutions.

(vi) Right to Constitutional Remedies (Article 32)

• Right to approach Supreme Court for enforcement of Fundamental Rights.
• Includes writs: Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo Warranto.
  👉 This is called the “heart and soul of the Constitution” (Dr. Ambedkar).

Fundamental Rights of Foreigners

This is a classic UPSC favourite: Which Fundamental Rights are available only to citizens, and which to all persons (including foreigners)?

✅ Available only to Citizens:

• Article 15: No discrimination on grounds of religion, race, caste, sex, place of birth.
• Article 16: Equality of opportunity in public employment.
• Article 19: Six freedoms.
• Article 30: Right of minorities to establish educational institutions.

✅ Available to all (citizens + foreigners, except enemy aliens):

• Article 14: Equality before law.
• Article 20: Protection in conviction for offences.
• Article 21: Right to life and personal liberty.
• Article 21A: Right to education.
• Article 22: Protection against arbitrary arrest/detention.
• Article 23: Prohibition of trafficking/forced labour.
• Article 24: Prohibition of child labour.
• Articles 25–28: Freedom of religion.

✨ In essence: Article 13 acts as a safety valve. It ensures that no law or authority—whether Parliament, State Legislature, or Executive—can override the Fundamental Rights. That’s why our judiciary is often called the guardian of the Constitution and Fundamental Rights.