INDIAN

CONSTITUTION
Fundamental
Rights – Part 1

By amit kilhor
Indian Constitution - Polity

PART- III
(Articles 12-35)

FUNDAMENTAL
RIGHTS
 Magna Carta – 1215
•Agreement between King of England and barons
•Recognized some rights of aristocratic class
•Important symbol of liberty

Bill of rights – American constitution

Evolutionof Genesis of Indian Constitutional FRts – 1928

Fundamental Motilal Nehru Committee – FRts needs to be
rights guaranteed in such a manner that they cannot be
withdrawn in any situation

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Nature of Fundamental rights

1. Not Absolute but qualified

2. Justiciable
3. Defended and guaranteed by SC
4. Not sacrosanct or permanent
5. Can be suspended during Emergency
6. Restricted in special circumstances
7. Few are only available to citizens and
some to foreigners also

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Article 12: Definition of State

“12. Definition.—In this Part, unless the

context otherwise requires, ―the State‖
includes the Government and Parliament of
India and the Government and the
Legislature of each of the States and all
local or other authorities within the territory
of India or under the control of the
Government of India..

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 Explanation
SC criterion of defining State
1. Government and Parliament of India A body is instrumentality of State if
2. Government and legislature of states 1. If entire share capital is owned by
3. All local self governing authorities Govt
4. “Other authorities” - Statutory and non- 2. Financial aid given by Govt
3. Controlled by Govt
statutory authorities 4. Performs public functions
(Any body working as an instrument of 5. If the body enjoys Monopoly status
state) as conferred by State

Is BCCI a State? – BCCI is not a state Under article 12 but amenable to writ jurisdiction under Article
226 of Indian constitution.

Is Judiciary under the ambit of definition of State? – Judiciary doesn’t fall under State while performing
Judicial functions, but during administrative functions it is “State” under definition of article 12
Associated ideas with article 12
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Article 13: Laws inconsistent with or in derogation of the fundamental rights

“
13. Laws inconsistent with or in derogation of the fundamental rights.—(1) All laws in force in the
territory of India immediately before the commencement of this Constitution, in so far as they are
inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part
and any law made in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,—
(a) ―”law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom
or usage having in the territory of India the force of law;
(b) ―”laws in force” includes laws passed or made by a Legislature or other competent
authority in the territory of India before the commencement of this Constitution and
not previously repealed, notwithstanding that any such law or any part thereof may not
be then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368

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 Explanation
Important:
Wide connotation of law
13(1) – Before the commencement of constitution 1. Permanent laws
2. Temporary laws – like ordinances
(Doctrine of Eclipse) 3. Any rule, regulation, notification by
executive
13(2) – State cannot make any law that takes away of 4. Non-legislative sources of law
abridges the FRts. (parliamentary conventions), like
customs ( e.g.. Sabrimala case
(Doctrine of Severability) { art 25(1),14, and 17})

13(3) – defines what law means

13(4) – constitutional amendment cannot be
challenged

Judicial Review : Article 13 provides for Judicial review expressively. On supreme Court through article
32 and on High courts through article 226.

Amendability of Fundamental rights : Clause 4 added by 24th amd Act, 1971.

(a) – Led to Keshavanand Bharti case
(b) - answers the issue of Amendability of Fundamental rights
Associated ideas with article 1311
 •Origin – USA constitution

•In Indian Constitution

Judicial Explicit in articles – 13,32,226

Implicit – Art 300A

Review
•JR is part of “basic structure”, as
held in Keshavanand Bharti case,
Hence cannot be taken away even
by constitutional amendment.

Judicial review is a process under

which executive or legislative actions
are subject to review by the judiciary.
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 •Question: Whether the word “law” as
used in art 13(2) include the constitutional
amendment act or not ?

Amendability of 1. Shankari prasad vs. Union of India,

Fundamental rights 1951

2. Sajjan singh vs State of rajasthan,

1965

3. Golak Nath v. State of Punjab, 1967

Judicial review is a process under
which executive or legislative action 4. 24th Constituinal amendment Act, 1971
s are subject to review by
5. Keshavananda Bharti case, 1973
the judiciary.
6. Minerva Mills v. Union of India, 1980
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Classification of Fundamental rights

•Article 14 to 18 – Rt to Equality
•Article 19 to 22 – Rt to Freedom
•Article 23 to 24 – Rt against exploitation
•Article 25 to 28 – Freedom of religion
•Article 29 to 30 – Cultural and
Educational Rts
•Article 32 – Rt to constitutional remedies

Article 31 – Right to property, deleted by 44th

amendment act, 1978.
Now a legal right under article 300-A in part XII

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Article 14: Equality before Law

“
14. Equality before law.—The
State shall not deny to any
person equality before the law or
the equal protection of the laws
within the territory of India.

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 Associated ideas – Article 14

Rule of Law

Mentioned in preamble and article 14

Equality before law Equal protection of laws

British origin American concept

Absence of any special privilege Equality of treatment under equal circumstances

Equal subjection of all persons to ordinary law Like should be treated alike

Negative concept Positive approach

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 Explanation : Rule of Law
1. SC – Where equals and
unequals are treated
▸ Elements of Rule of law differently, article 4 doesn’t
1. Absence of arbitrary power apply
2. Article 14 forbids class
2. Equality before law legislation, but permits
3. Primacy of individual rights reasonable classification of
persons based on “Intelligible
differential and substantial
distinction”

Article 14 is not Absolute : Few Exceptions

•President and Governor – No criminal proceedings

•Civil proceedings after two month notice
•Diplomatic immunity to ambassadors and diplomats
•UNO and its agencies”
Associated ideas with article 14
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Article 15: Prohibition of discrimination on certain grounds

“
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—(1) The State
shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or
any of them.
(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; or
(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.
(3) Nothing in this article shall prevent the State from making any special provision for women and
children.
(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special
provision for the advancement of any socially and educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes.
(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from
making any special provision, by law, for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special
provisions relate to their admission to educational institutions including private educational
institutions, whether aided or unaided by the State, other than the minority educational institutions
referred to in clause (1) of article 30.
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 Explanation
15(4) - Special provisions for Socially
“discrimination” – to distinguish unfavorably and Economically backward
from others” classes (added by 1st
Constitutional amendment)
“only” -
15(5) – Special provision regarding
admission to Educational institutes
(added by 93rd amd Act)

15(3) Special provisions for Women and related – Reservations in admission act,
children 2006. 27% reservation for OBCs

-Reservations
-Special provisions for bail
-Offence of adultery

Associated ideas with article 15

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Article 16: Equality of opportunity in matters of public employment

“
16. Equality of opportunity in matters of public employment.—(1) There shall be
equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State. 26
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place
of birth, residence or any of them, be ineligible for, or discriminated against in
respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law
prescribing, in regard to a class or classes of employment or appointment to
an office under the Government of, or any local or other authority within, a
State or Union territory, any requirement as to residence within that State or
Union territory prior to such employment or appointment.

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 Explanation

▸ Three exceptions to general rule of Equality of

opportunity in public employment.

State can make special provisions for

a. Making residence as the criteria for employment or appointment within a State or Union Territory,
if sanctioned by Parliamentary legislation [Clause. 15(3)]
b. Reservation of appointments or posts for underrepresented backward class [C.15(4)]
(i). Reservation in matters of promotion, with consequential seniority, to any class or
classes of posts for SCs and STs [Cl.15(4A)]
(ii). Filling up the backlog of vacancies for SCs and STs, irrespective of fifty per cent ceiling
imposed by the Constitution [CI. 15(4B)]
c. Prescription of the profession of a particular religion or belonging to a particular denomination, if the
office is in connection with the affairs of any religious or denominational institution [CI. 15(5)]

Associated ideas with article 16

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Article 17: Abolition of Untouchability

“
17. Abolition of “Untouchability”.—
―”Untouchability” is abolished and its practice in
any form is forbidden. The enforcement of any
disability arising out of ―”Untouchability” shall be
an offence punishable in accordance with law.

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 Explanation

▸ Parliament is authorized to make a law prescribing the

punishment for violation of fundamental rights
1. - Untouchability (offences) Act, 1955, renamed as Protection of
civil rights Act, 1955

Definition of Untouchability

Scheduled caste and Scheduled Tribes( Prevention of Atrocities) Act, 1989

- SC guidelines on SC/ST(PoA) Act, 1989
- The SC/ST(PoA) Amendment Act

Associated ideas with article 17

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Article 18: Abolition of Titles

“
18. Abolition of titles.—(1) No title, not being a military or academic
distinction, shall be conferred by the State.
(2) No citizen of India shall accept any title from any foreign State.
(3) No person who is not a citizen of India shall, while he holds any
office of profit or trust under the State, accept without the consent of
the President any title from any foreign State.
(4) No person holding any office of profit or trust under the State
shall, without the consent of the President, accept any present,
emolument, or office of any kind from or under any foreign State.

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 Explanation

▸ Is Bharat Ratna, Padma Vibhushan, Padma Shri(National

Awards) violative of article 18?

▸ SC – Upholds their validity in “Balaji Raghvan vs. Union of India”

Case

National awards

-Constituted in 1954
-Discontinued in 1977
-Reinstated in 1980

Associated ideas with article 18

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Article 19: Protection of certain rights regarding Freedom of speech etc.

“
19. Protection of certain rights regarding freedom of speech, etc.—(1)
All citizens shall have the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions 1 [or co-operative societies];
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(g) to practise any profession, or to carry on any occupation, trade or
business.

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 •Reasonable restrictions on grounds of
19 (1)(a)
1. Sovereignty and integrity of India
Freedom of 2. Security of State
3. Friendly relations with foreign states
Speech and Expression 4. Public order
5. Decency or Morality
6. Contempt of court
It includes 7. Defamation
-Freedom of press 8. Incitement to an offence
-Freedom of advertisements
-Right to know about government activities
-Right to silence

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 •Reasonable restrictions on two grounds
19(1)(b)
1. Sovereignty and integrity of India
2. and Public order including traffic
Freedom of maintenance

Assembly
Peaceful Assembly, Unarmed
Public meetings, Processions
Section 144 of IPC

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 •Reasonable restrictions on two grounds
19(1)(c)
1. Sovereignty and integrity of India
2. Public order and Morality
Freedom of
Association
Right to Form Unions, Societies,
Cooperatives
Any kind – Commercial, political, religious ,
Article 33 – Restricts the association of
economical Military, armed and police forces.
- Cannot strike
- Only non-political force

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 •Reasonable restrictions on two grounds
19(1)(d)
1. Interests of General public
2. Protection of interests of any
Freedom of Scheduled Tribes

Movement
Right to move freely throughout the territory of the
country

Article 19(1)(d) protects only internal movement

right within the country
External movement(right to move and come back
to country) comes under article 21
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 •Reasonable restrictions on two grounds
19(1)(e)
1. Interests of General public
2. Protection of interests of any
Freedom of Scheduled Tribes

Residence
Right to settle throughout the territory of
India
Right to reside vs Right to settle
Inner line permit System

•Issued to citizens to travel to restricted

areas
•By Central Government
•To protect interests of STs
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 •Reasonable restrictions on two grounds
19(1)(g)
1. Interests of General public

Freedom of
Further State can
Profession etc. - Prescribe professional or technicl
qualifications
- Carry on a partial or complete
Right to settle throughout the territory of monopoly
India
Right to reside vs Right to settle
- The right doesn’t include
immoral(human trafficking) or
dangerous(drugs, explosives) trades.

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LET’S REVIEW
Article 12 – Definition of Article 13 – Laws Article 14 – Equality
state inconsistent or in before law
abrogation with
fundamental rights

Article 15 – Prohibition of Article 16 – Equality of Article 17 – Abolition of

discrimination on opportunity in matters of Untouchability
grounds of religion, race, public employment
caste, sec or place of
birth

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LET’S REVIEW

Article 18 – Article 19 –
Fundamental
Abolition freedoms and rights.
of titles Democratic rights

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THANKS!
Any questions?
You can find me at

t.me/amitkilhor
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amit Varidhi kilhor