THE CONSTITUTION OF INDIA, 1949

PART III: FUNDAMENTAL RIGHTS

The Fundamental Rights are enshrined T in Part III of the Constitution from
Articles 12 to 35. In this regard, the framers of the Constitution derived inspiration
from the Constitution of USA (i.e., Bill of Rights).

Part III of the Constitution is rightly described as the Magna Carta of India.' It
contains a very long and comprehensive list of 'justiciable' Fundamental Rights. In
fact, the Fundamental Rights in our Constitution are more elaborate than those
found in the Constitution of any other country in the world, including the USA.

The Fundamental Rights are guaranteed by the Constitution to all persons without
any discrimination. They uphold the equality of all individuals, the dignity of the
individual, the larger public interest and unity of the nation.

Originally, the Constitution provided for seven Fundamental Rights viz,

1. Right to equality (Articles 14-18) 2. Right to freedom (Articles 19-22)

3. Right against exploitation (Articles 23-24) 4. Right to freedom of religion

(Articles 25-28)

5. Cultural and educational rights (Articles 29-30)

6. Right to property (Article 31) 7. Right to constitutional remedies (Article 32)

However, the right to property was deleted from the list of Fundamental Rights by
the 44th Amendment Act, 1978. It is made a legal right under Article 300-A in Part
XII of the Constitution. So at present, there are only six Fundamental Rights.

FEATURES OF FUNDAMENTAL RIGHTS

The Fundamental Rights guaranteed by the Constitution are characterized by the
following:

1. Some of them are available only to the citizens while others are available to all
persons whether citizens, foreigners. or legal persons like corporations or companies.
2. They are not absolute but qualified. The state can impose reasonable restrictions on
them. However, whether such restrictions are reasonable or not is to be decided by the
courts. Thus, they strike a balance between the rights of the individual and those of the
society as a whole, between individual liberty and social control.

3. All of them are available against the arbitrary action of the state. However, some of
them are also available against the action of private individuals.

4. Some of them are negative in character, that is, place limitations on the authority of
the State, while others are positive in nature, conferring certain privileges on the
persons.

5. They are justiciable, allowing persons to move the courts for their enforcement, if and
when they are violated.

6. They are defended and guaranteed by the Supreme Court. Hence, the aggrieved
person can directly go to the Supreme Court, not necessarily by way of appeal against
the judgement of the high courts.

7. They are not sacrosanct or permanent. The Parliament can curtail or repeal them but
only by a constitutional amendment act and not by an ordinary act. Moreover, this can
be done without affecting the basic structure of the Constitution.

8. They can be suspended during the operation of a National Emergency except the
rights guaranteed by Articles 20 and 21. Further, the six rights guaranteed by Article 19
can be suspended only when emergency is declared on the grounds of war or external
aggression (ie, external emergency) and not on the ground of armed rebellion (i.e.,
internal emergency). (The suspension of fundamental rights during a national
Emergency is explained in detail in Chapter 16).

ARTICLE 12: DEFINITION OF STATE

State falls within the meaning of the State under Article 12.
The term 'State has been used in different provisions concerning the fundamental rights
Hence, Article 12 has defined the term for the purposes of Part III. According to it the
State includes the following: 

(a) Government and Parliament of India, that is, executive and legislative organs of the
Union government. 

(b) Government and legislature of states, that is, executive and legislative organs of
state government. 

(c) All local authorities,that is, municipalities, panchayats, district boards, improvement
trusts, etc. 
(d) All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC,
SAIL, etc. 

Thus, State has been defined in a wider sense so as to include all its agencies. It is the
actions of these agencies that can be challenged in the courts as violating the
Fundamental Rights. According to the Supreme Court, even a private body or an
agency working as an instrument of the State.

ARTICLE 13: LAWS INCONSISTENT WITH FUNDAMENTAL

RIGHTS
Article 13 declares that all laws that are inconsistent with or in derogation of any of the
fundamental rights shall be void. In other words, it expressively provides for the doctrine
of judicial review. This power has been conferred on the Supreme Court (Article 32) and
the high courts (Article 226) that can declare a law unconstitutional and invalid on the
ground of contravention of any of the Fundamental Rights.

The term 'law' in Article 13 has been given a wide connotation so as to include the
following:

(a) Permanent laws enacted by the Parliament or the state legislatures;

(b) Temporary laws like ordinances issued by the president or the state governors;

(c) Statutory instruments in the nature of delegated legislation (executive legislation) like
order, bye-law, rule, regulation or notification; and 

(d) Non-legislative sources of law, that is,

custom or usage having the force of law. Thus, not only a legislation but any of the
above can be challenged in the courts as violating a Fundamental Right and hence, can
be declared as void.

Further, Article 13 declares that a constitutional amendment is not a law and hence
cannot be challenged. However, the Supreme Court held in the Kesavananda Bharati
case (1973) that a Constitutional amendment can be challenged on the ground that it
violates a fundamental right that forms a part of the basic structure' of the Constitution
and hence, can be declared as void.

RIGHT TO EQUALITY

ARTICLE 14: Equality before Law and Equal Protection of

Laws
Article 14 says 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. This provision confers rights on
all persons whether citizens or foreigners. Moreover, the word 'person' includes legal
persons, viz, statutory corporations, companies, registered societies or any other type of
legal person.

The concept of 'equality before law' is of British origin while the concept of 'equal
protection of laws has been taken from the American Constitution. The first concept
connotes: (a) the absence of any special privileges in favour of any person, (b) the
equal subjection of all persons to the ordinary Taw of the land administered by ordinary
law courts, and (c) no person (whether rich or poor high or low, official or non-official) is
above the law. (-concept).

The second concept, on the other hand, connotes: (a) the equality of treatment under
equal circumstances, both in the privileges conferred and liabilities imposed by the laws,
(b) the similar application of the same laws to all persons who are similarly situated, and
(c) the like should be treated alike without any discrimination. Thus, the former is a
negative concept while the latter is a positive concept. However, both of them aim at
establishing equality of legal status, opportunity and justice.

The Supreme Court held that where equals and unequals are treated differently, Article
14 does not apply. While Article 14 forbids class legislation, it permits reasonable
classification of persons, objects and transactions by the law. But the classification
should not be arbitrary, artificial or evasive. Rather, it should be based on an intelligible
differential and substantial distinction.

Rule of Law The concept of 'equality before

law' is an element of the concept of 'Rule of Law', propounded by A.V. Dicey, the British
jurist. His concept has the following three elements or aspects:

(i) Absence of arbitrary power, that is, no man can be punished except for a breach of
law.

(ii) Equality before the law, that is, equal subjection of all citizens (rich or poor, high or
low, official or non-official) to the ordinary law of the land administered by the ordinary
law courts.

(iii) The primacy of the rights of the individual, that is, the constitution is the result of the
rights of the individual as defined and enforced by the courts of law rather than the
constitution being the source of the individual rights. (not applicable in INDIA)

The first and the second elements are applicable to the Indian System and not the third
one. In the Indian System, the constitution is the source of the individual rights.

The Supreme Court held that the 'Rule of Law' as embodied in Article 14 is a 'basic
feature' of the constitution. Hence, it cannot be destroyed even by an amendment.
Exceptions to Equality: The rule of equality before law is not absolute and there are
constitutional and other exceptions to it. These are mentioned below:

1. The President of India and the Governor of States enjoy the following immunities
(Article 361):

(i) The President or the Governor is not answerable to any court for the exercise and
performance of the powers and duties of his office.

(ii) No criminal proceedings shall be instituted or continued against the President or the
Governor in any court during his term of office.

(iii) No process for the arrest or imprisonment of the President or the Governor shall be
issued from any court during his term of office.

(iv) No civil proceedings against the President or the Governor shall be instituted during
his term of office in any court in respect of any act done by him in his personal capacity
before , whether before or after he entered upon his office, until the expiration of two
months next after notice has been delivered to him.

2. No person shall be liable to any civil or criminal proceedings in any court in respect of
the publication in a news paper (or by radio or television) of a substantially true report of
any proceedings of either House of Parliament or either House of the Legislature of a
State (Article 361-A).

3. No member of Parliament shall be liable to any proceedings in any court in respect of

anything said or any vote given by him in Parliament or any committee thereof (Article
105).

4. No member of the Legislature of a state shall be liable to any proceedings in any

court in respect of anything said or any vote given by him in the Legislature or any
committee thereof (Article 194).

5. Article 31-C is an exception to Article 14. It provides that the laws made by the state
for implementing the Directive Principles contained in clause (b) or clause (c) of Article
39 cannot be challenged on the ground that they are violative of Article 14. The
Supreme Court held that "where Article 31-C comes in, Article 14 goes out".

6. The foreign sovereigns (rulers), ambassadors and diplomats enjoy immunity from
criminal and civil proceedings. (By Vienna convention)

 7. The UNO and its agencies enjoy the diplomatic immunity.