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FUNDAMENTAL RIGHTS

FUNDAMENTAL RIGHTS-Article 12 to 22
Part III of the Indian Constitution contains the Fundamental Rights from Articles
12 to 35. Part III of the Constitution is described as the Magna Carta of India and is
inspired by the Constitution of USA (Bill of Rights). The Fundamental Rights are
provided to all the persons without any discrimination to uphold their equality
and freedom. They function in a way as limitations to the arbitrariness of the
State against the liberty and freedom of the individuals. The aim of the
Fundamental Rights is establishing ‘a government of laws and not of men’.

However, the State can impose reasonable restrictions on the functioning of the
Fundamental Rights. In this way, they are not absolute. The State can curtail or
repeal them through constitutional amendment act. However, the ‘basic
structure’ of the Constitution should not be affected while passing such laws.
Fundamental Rights are justiciable, i.e. a person can move the courts for their
enforcement when they are violated. In Kesavananda Bharati case (1973), the
Supreme Court held that a Constitutional amendment could be challenged if it
violates a fundamental right that forms a part of the ‘basic structure’ of the
Constitution and hence, can be declared as void.

The Supreme Court is the guarantor and the defender of the Fundamental Rights.
The person whose Fundamental Rights have been violated can directly go to the
Supreme Court for their enforcement.

The Fundamental Rights are the bedrock of democracy in a country as they

establish the rule of law by facilitating the participation of people in the political
and administrative process. They lay down the foundation stone of social equality
and social justice and protect the interests of minorities and weaker sections of
society.

The Fundamental Rights and some privileges that are available only to the citizens
and not to foreigners, according to the Constitution, are as follows:

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Fundamental Rights

1) Right against discrimination on the grounds of religion, race, caste, sex or

place of birth (Article 15).
2) Right to equality of opportunity in the matter of public employment (Article
16).
3) Right to freedom of speech and expression, assembly, association,
movement, residence and profession (Article 19).
4) Cultural and Educational Rights (Articles 29 and 30).

Other Rights

5) Right to vote in elections to the Lok Sabha and state legislative assembly.
6) Right to contest for the membership of the Parliament and the state
legislature.
7) Eligibility to hold certain public offices, i.e. President of India, Vice-
President of India, judges of the Supreme Court and the high courts,
governor of states, the attorney general of India and advocate general of
states.

Article 12 to 22
● Article 12: Definition of the State
● Article 13: Declaration of some laws that are inconsistent with or violative
of any of the fundamental rights to be void
● Article 14: Equality before the law and equal protection of laws (Right to
Equality)
● Article 15: Prohibition of discrimination only on the grounds of religion,
race, caste, sex or place of birth (Right to Equality).
● Article 16: Equality of opportunity in matters of public employment (Right
to Equality)
● Article 17: Abolition of untouchability and prohibition of its practice (Right
to Equality)
● Article 18: Abolition of titles except military and academic (Right to
Equality)

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● Article 19: Protection of six rights with respect to freedom of (i) speech and
expression, (ii) assembly, (iii) association, (iv) movement, (v) residence, and
(vi) profession (Right to Freedom)
● Article 20: Protection in respect of conviction for offences (Right to
Freedom).
● Article 21: Protection of life and personal liberty (Right to Freedom).
● Article 21 A: Right to elementary education (Right to Freedom).
● Article 22: Protection against arrest and detention in certain cases (Right to
Freedom).

Article 12:

● Article 12 contains the definition of the ‘State’ to be used in different

provisions related to the fundamental rights.
● According to Article 12, the State includes:
(a) Government and Parliament of India;
(b) Government and legislature of states;
(c) All local authorities such as municipalities, panchayats, district boards,
etc.
(d) All other authorities, statutory or non-statutory authorities such as LIC,
SAIL, ONGC, etc.
● There have been disputes and discussion around phrase of Article 12 i.e
“other authorities” which has evolved over time:
● Earlier, a restrictive interpretation was given to this term, i.e, the
authorities exercising governmental or sovereign function would only be
covered under other authorities.
● The liberal interpretation says that it is not necessary for an authority to be
engaged in sovereign or governmental function to come under the
definition of the state. The bodies like State Electricity Board, LIC, ONGC
and IFC also come under “other authorities”.
● In R.D Shetty v. Airport Authority of India, Justice P.N Bhagwati gave a 5
Point test to determine whether a body is an agency or instrumentality of
the state or Not;
o Financial resources of the State, where State is the chief funding
source i.e. the entire share capital is held by the government.

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o Deep and pervasive control of the State.

o The functional character being Governmental in its essence, meaning
thereby that its functions have public importance or are of a
governmental character.
o A department of Government transferred to a corporation.
o Enjoys “monopoly status” which State conferred or is protected by it.
● The Judiciary is not expressly mentioned in Article 12 and a great amount of
dissenting opinions exist on the same matter.
● In Rupa Ashok Hurra v. Ashok Hurra, the Apex Court reaffirmed and ruled
that no judicial proceeding could be said to violate any of the Fundamental
rights and that it is a settled position of law that superior courts of justice
do not fall within the ambit of ‘state’ or ‘other authorities’ under Article 12.
● This gave the rationale that a Superior Judicial body when acting “Judicially”
would not fall under the definition of State but when it performs
any administrative or similar functions e.g conducting examination, it will
fall under the definition of “state” and that remedy could be sought in that
context only in case of violation of fundamental rights.
● Recently, Delhi High Court has given judgement in Sanjaya Bahel v. Union
of India & Others case, that the United Nations is not a "State" within the
meaning of Article 12 of the Constitution of India and is not amenable to
the jurisdiction of the Court under Article 226 of the Constitution of India.
● The actions of these agencies can be challenged in the courts when found
violative of the Fundamental Rights.

Article 13:

● According to Article 13 of the Constitution, the laws that are inconsistent

with or violative of any of the fundamental rights shall be declared void.
Article 13 implicitly provides for the doctrine of judicial review.
● In Kesavananda Bharati case (1973), the Supreme Court held that the
Parliament could amend any part of the Constitution, including the
Fundamental Rights without destroying the Basic Structure of the
Constitution. A Constitutional amendment could be challenged if it violates
a fundamental right that forms a part of the ‘basic structure’ of the
Constitution and hence, can be declared as void.

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● The Constitution has conferred the power of Judicial Review on the

Supreme Court (Article 32) and the high courts (Article 226) to declare a law
that is unconstitutional and violates any of the Fundamental Rights.

RIGHT TO EQUALITY:
Article 14:

● Article 14 guarantees to all the individuals, (a) the Right to equality before
the law and, (b) the Right to equal protection of the laws. This right is
available to all persons, whether citizens or foreigners.
● The concept of ‘equality before law’ is a negative concept which originated
in the English Constitution. It means the absence of any special privileges to
any person in the eye of law and all persons are equally subjected to the
ordinary law of the land as no person is above the law.
● The concept of ‘equal protection of laws’ is a positive concept which is
derived from the American Constitution. It is based on the Aristotelian
concept of equality which says that there can be equality among the equals
and there can be no equality among unequal. It confers the equality of
treatment under equal circumstances and, the similar application of the
same laws to all persons who are similarly situated. This means that the like
should be treated alike without any discrimination.
● Rule of Law: The concept of ‘Rule of Law’ was propounded by A.V. Dicey. It
lays down the principles that govern the rule of law. The concept confers
that
(i) No person shall be punished except for violation of law (absence of
arbitrary power).
(ii) All persons are equally subjected to the ordinary law of the land without
any distinction, administered by the ordinary court of law (equality before
the law).
(iii) The Constitution is the result of the rights of the individual rather than
the Constitution being the source of individual rights (the primacy of the
rights of the individual).
● The first and second principles of the Rule of Law are applicable to the
Indian System. However, the third principle is not applied in the Indian
System as the Constitution is the supreme law of the land and is the source
of individual rights.

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● The Supreme Court held the ‘Rule of Law’ embodied in Article 14 as a ‘basic
feature’ of the Constitution.
● However, the rule of equality before law is not absolute and there are
exceptions to it.
1) The President or the Governor is not answerable to any court for the
exercise of the powers and duties of his office and no criminal
proceedings can be instituted against the President or the Governor in
any court during his term of office. Further, no process for the arrest or
imprisonment of the President or the Governor can be issued from any
court during his term of office. The civil proceedings against the
President or the Governor can only be instituted during his term of
office in any court for any act done by him after the expiration of two
months notice given to him.
2) A person shall not be liable to any civil or criminal proceedings in any
court for publication of a substantially true report of any proceedings of
the Parliament or the State Legislature in a newspaper or radio or
television.
3) A member of Parliament shall not be liable to any proceedings in any
court for anything said or any vote given by him in Parliament or any
committee. The same exception has been provided to the members of
the State Legislature.
4) Article 31-C states that the laws made by the State for implementing the
Directive Principles contained in Article 39 (b) & (c) of cannot be
challenged on the ground that they are violative of Article 14.
5) The United Nations and its agencies enjoy diplomatic immunity. The
foreign rulers, diplomats and ambassadors, enjoy immunity from
criminal and civil proceedings.

Article 15:

● Article 15 forms the part of the Basic Structure of the Constitution. The
Fundamental Rights under Article 15 is available only to the citizens.
● Article 15(1) prohibits the State from discriminating against its citizen on
grounds only of religion, race, caste, sex or place of birth. The word ‘only’
here means that above grounds can be one of the grounds but not the only
ground for discrimination. The discrimination if valid on other grounds is
not prohibited. For example – the preference is given to the males in

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recruitment into armed forces etc. This provision prohibits discrimination

only by the State.
● Article 15(2) says that no citizen shall be denied admission into public
places such as access to shops, restaurants, hotels and places of public
entertainment; or the use of wells, tanks, bathing ghats, road etc. on
grounds only of religion, race, caste, sex, or place of birth. The
discrimination is prohibited by both the State and private individuals.
● Article 15(3) empowers the State to make any special provision for women
and children. For example, reservation of seats for women in local bodies
or provision of free education for children.
● Article 15(4) confers the power on the State to make any special provision
for the advancement of socially and educationally backward classes of
citizens including the scheduled castes (SCs) and scheduled tribes (STs). For
example, reservation of seats, scholarships or fee concessions in public
educational institutions. It was introduced into the Constitution by the 1st
Constitutional Amendment Act, 1951.
● In the NALSA vs Union of India and others, 2014 case, the Supreme Court
recognized transgenders as the third gender and recognized their right to
decide their sexual orientation.
● Article 15(5) empowers the State to make any special provision for the
advancement of any socially and educationally backward classes of citizens
or for the SCs or the STs with respect to their admission in the educational
institutions including private institutions, whether receiving aid out of the
state funds or unaided, excluding the minority educational institutions. This
provision was added by the 93rd Constitutional Amendment Act, 2005.
● The Parliament enacted the Central Educational Institutions (Reservation in
Admission) Act, 2006, to give effect to Article 15(5). The Act provides that
not more than 27% of the seats have been reserved in favour of the
candidates belonging to the Other Backward Classes (OBCs) in all central
higher educational institutions including the IITs and IIMs etc. but not in the
research institutions.
● In Ram Singh & Others vs Union of India, 2015 case, the Supreme Court
held that reservation benefits must be extended to the transgenders in
educational institutions and public employment.

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Article 16:

● Article 16 provides for equality of opportunity in public employment to all

the citizens.
● Article 16(1) provides equality of opportunity for all citizens in public
employment
● Article 16(2) prohibits discrimination by the State against its citizens on
grounds only of religion, race, caste, sex, descent, place of birth or
residence in matters of public employment.
● Article 16(3) confers power on the Parliament to provide by law prescribing
residence as a condition for certain classes of employment under the State.
● The Public Employment (Requirement as to Residence) Act, 1957 was
enacted by the Parliament to give effect to Article 16(3). The Act expired in
1974.
● Article 16(4) confers the powers on the State to provide reservation in the
matters of appointments or posts in favour of any backward class that is
not adequately represented in the employment under the State
● Article 16(4A) was introduced by the 77th Constitutional Amendment Act,
1995 which confers the power on the State to provide reservation in
promotion in favour of SCs and STs if they are not adequately represented
in public employment.
● The Supreme Court in M. Nagraj & others vs Union of India, 2006 case
upheld the constitutional validity of Article 14(4A).
● The 85th Amendment Act, 2001 provides for ‘consequential seniority’ in the
case of promotion of the government servants belonging to the SCs and
STs by the rule of reservation with retrospective effect from June 1995.
● Article 16(4B) was introduced by the 81st Constitutional Amendment Act,
2000. It empowers the State to consider the unfilled reserved vacancies of
a year as a separate class of vacancies to be filled up in any succeeding
years. These vacancies are not to be combined with the regular vacancies
whether the 50% quota has been exceeded nor not.
● The 76th Constitutional Amendment Act, 1994 has placed the Tamil Nadu
Reservations Act, 1994 which provided for 69 per cent of reservation
(exceeding the 50% ceiling) in the Ninth Schedule to protect it from judicial
review.

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● Recently, the Constitutional (103rd Amendment) Act, 2019, has provided

for 10% reservation in government jobs and educational institutions for the
“economically backward” in the unreserved category.
● It introduced economic reservation by amending Articles 15 and 16. It
inserted Article 15 (6) and Article 16 (6) in the Constitution to allow
reservation for the economically backward in the unreserved category.
● It was enacted to promote the welfare of the poor not covered by the 50%
reservation policy for SCs, STs and Socially and Educationally Backward
Classes (SEBC).
● It enables both Centre and the states to provide reservation to the EWSs of
society.
● Since this is a central law on subjects (employment, education) in the
concurrent list (subjects on which states and the central government both
have jurisdiction), the state governments need to ratify it before adopting
it locally.
●

Article 17:

● Article 17 declares the practice untouchability as a punishable offence in

accordance with the law. It forbids its practice in any form. The
Fundamental Right under Article 17 is also available against private
individuals.
● The Parliament enacted the Untouchability (Offences) Act, 1955 which was
amended in 1976 and renamed as the Protection of Civil Rights Act, 1955 to
enlarge the scope and make penal provisions more stringent.
● The Parliament also enacted the SCs & STs (Prevention of Atrocities) Act,
1989 to protect SCs and STs from exploitation.
● The term ‘untouchability’ has not been defined in the Constitution.
● The Protection of Civil Rights Act, 1955 declares some acts of untouchability
as offences such as preventing a person from entering any place of public
worship; justifying untouchability on religious, philosophical, traditional or
other grounds; preaching untouchability directly or indirectly; denying
access to hotels, shops, or places of public entertainment and refusing to
admit persons in hospitals, educational institutions or hostels established
for public benefit; refusing to sell goods or render services to any person
and insulting a person belonging to SC on the ground of untouchability.

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Article 18:

● Article 18 prohibits the State from conferring titles.

● Article 18(1) prohibits the State from conferring any title (except military or
academic distinction) on any person, whether a citizen or a foreigner.
● Article 18(2) prohibits an Indian citizen from receiving any title from any
foreign state. However, a citizen can accept an award from a foreign state.
● Article 18(3) prohibits a foreigner holding any office of profit or trust under
the State from accepting any title from any foreign state without the prior
permission of the President of India.
● Article 18(4) prohibits a citizen or a foreigner holding any office of profit or
trust under the State from accepting any present, emolument or office
from or any foreign State without the prior permission of the President of
India.
● Thus the hereditary titles of nobility such as Maharaja, Raj Bahadur, Rai
Bahadur, Rai Saheb, Dewan Bahadur, etc., which were conferred by colonial
States are prohibited under Article 18.
● The Supreme Court in 1996, upheld the constitutional validity of the
National Awards—Bharat Ratna, Padma Vibhushan, Padma Bhushan and
Padma Sri. It held that these awards do not amount to ‘titles’ within the
meaning of Article 18. However, they should not be used as suffixes or
prefixes to the names of awardees.

RIGHT TO FREEDOM:

Article 19:

● Article 19 guarantees six fundamental rights to all citizens.

1) Right to freedom of speech and expression.
2) Right to assemble peaceably and without arms.
3) Right to form associations or unions or co-operative societies.
4) Right to move freely throughout the territory of India.
5) Right to reside and settle in any part of the territory of India.
6) Right to practice any profession or to carry on any occupation, trade or
business.

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● These rights are protected against only state action and not private
individuals. They are available only to the citizens and to shareholders of a
company but not to foreigners or legal persons like companies or
corporations, etc.
● The Rights under Article 19 are not absolute, and the State can impose
reasonable restrictions on the grounds mentioned in Article 19 only.

1) Freedom of Speech and Expression – Article 19(1)(a) confers on every

citizen, the right to freedom of speech and expression. A person can freely
express his opinions, views, and belief by word of mouth, printing, writing,
picturing or in any other manner.
● The Supreme Court held that this freedom also includes the Right to
propagate one’s views as well as views of others; Freedom of the press;
Freedom of commercial advertisements; Right against tapping of
telephonic conversation; Right to telecast; Right to know about
government activities; Freedom of silence; Right to demonstration or
picketing but not right to strike etc.
● However, they are not absolute, and the State can impose reasonable
restrictions on the exercise of the freedom of speech and expression on the
grounds of sovereignty and integrity of India, the security of the State,
friendly relations with foreign states, public order, decency or morality,
contempt of court, defamation, and incitement to an offence.
● The Supreme Court in Maneka Gandhi vs Union of India, 1978 case held
that the freedom of speech and expression is not limited by geographical
boundaries and can be enjoyed by the citizen even while travelling abroad.

2) Freedom of Assembly – Article 19(1)(b) confers on every citizen, the right to

assemble peacefully and without arms. It also includes the right to hold
public meetings, demonstrations and take out processions.
● This right does not include the right to strike.
● However, the State can impose reasonable restrictions on this right on the
grounds of sovereignty and integrity of India and maintenance of public
order and traffic in the area concerned.
● Section 144 of Criminal Procedure Code and Section 141 of the Indian Penal
Code provides for conditions in which assembly, meeting or procession can
be prohibited by the authority.

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3) Freedom of Association – Article 19(1)(c) confers on all citizens, the right to

form associations or unions or co-operative societies. The right to form co-
operatives was introduced as a Fundamental Right by the 97th
Constitutional Amendment Act, 2011.
● It also includes the right to form political parties, societies, partnership
firms, clubs, companies, organisations, trade unions etc. as well as the
negative right of not to form or join an association or union.
● However, the State can impose reasonable restrictions on the grounds of
sovereignty and integrity of India, public order and morality. However, the
right to obtain recognition of the association is not a fundamental right.
● The Supreme Court in CPM vs Bharat Kr, 1998 case held all forms of Bandh
as illegal.

4) Freedom of Movement – Article 19(1)(d) confers to every citizen, the right

to move freely throughout the territory of the country.
● This right has two dimensions, i.e., right to move inside the country
(internal) and right to move out of the country and the right to come back
to the country (external). The internal dimension is protected by Article 19,
whereas the external dimension by Article 21.
● However, the State can impose reasonable restrictions on the grounds of
the interests of the general public and the protection of interests of any
scheduled tribe.

5) Freedom of Residence – Article 19(1)(e) confers on every citizen, the right

to reside and settle in any part of the territory of the country. It included
the right to reside in any part of the country, i.e., staying at any place
temporarily, and the right to settle in any part of the country, i.e., setting up
a home or domicile at any place permanently.
● The State can impose reasonable restrictions on this right on the grounds of
the interest of the general public and the protection of interests of any
scheduled tribes.

6) Freedom of Profession – Article 19(1)(g) confers on all citizens, the right to

practise any profession or to carry on any occupation, business or trade.
● The State can impose reasonable restrictions on the ground of the interest
of the general public. The State can also prescribe professional or technical
qualifications necessary for practising any profession or carrying on any

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occupation, business or trade. The State is also empowered to carry on by

itself any trade, business, industry or service by excluding citizens
completely or partially.
● This right does not include the right to carry on a profession or business or
trade or occupation that is immoral or dangerous. The State is empowered
to prohibit or regulate them.

ARTICLE 20 to ARTICLE 28:

RIGHT TO FREEDOM:

Article 20:

● Article 20 of the Constitution grants protection against arbitrary and

excessive punishment to an accused person. It applies to the person
whether he/she is a citizen or a foreigner or any legal person such as a
corporation or a company.
● There are three provisions for its enforcement:
(a) No ex-post-facto law: Under it, the State cannot enact criminal
legislation and give it retrospective effect. A person can be convicted only
for a violation of law in force at the time of the commission of the act. The
person cannot be given punishment greater than that prescribed by the law
in force during the time of the commission of the act.
However, this provision applies only to criminal laws and not to civil laws or
tax laws. The protection does not apply to cases of preventive detention.
(b) No double jeopardy: The person cannot be prosecuted and punished
more than once for the commission of the same offence.
This protection is available only against criminal courts or criminal tribunals
and not against civil courts and non-judicial bodies. It is also not available in
proceedings either before departmental or administrative authorities.
(c) No self-incrimination: A person accused of any offence cannot be forced
to be a witness against himself. Any confessional statement, voluntary or
under compulsion made by an accused to the police is not admissible as
evidence in the court. The provision extends only to criminal proceedings
and not to civil proceedings.

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This protection does not apply to the judicial bodies as any confessional
statement made by an accused before the judicial magistrate is admissible
as evidence in the court. The protection is also not available against
compulsory production of material objects; the compulsion to give thumb
impression, specimen signature, blood specimens; and compulsory
exhibition of the body.
● The Supreme Court in Selvi vs the State of Karnataka, 2010 case held that
no person can be compelled to undergo the polygraph test, brain mapping
and narco analysis as they are violative of the right against self-
incrimination under Article 20(3), and right to life and personal liberty
under Article 21.

Article 21:

● According to Article 21 of the Constitution, the State shall not deprive a

person of his life or personal liberty except according to the procedure
established by law. Both citizens and non-citizens enjoy this right.
● In A K Gopalan vs State of Madras (1950) case, the Supreme Court held that
the protection under Article 21 is available only against arbitrary executive
action and not from arbitrary legislative action, i.e. the State can deprive
the right to life and personal liberty of a person by enacting a law.
● The Constitution under Article 21 provides for the ‘procedure established
by law’ which originated under the English Constitution, rather than the
‘due process of law’ which is contained in the American Constitution.
● Under the ‘procedure established by law’, the validity of a law that has
prescribed a procedure cannot be questioned on the ground that the law is
unreasonable, unfair or unjust. The court does not examine the
reasonableness of the law.
● Under the ‘due process of law’, protection should be available not only
against arbitrary executive action but also against arbitrary legislative
action. Here, the court applies the Principle of Natural Justice and looks into
the reasonableness of the law.
● In Menaka Gandhi vs Union of India (1978) case, the Supreme Court ruled
that the right to life and personal liberty of a person can be deprived by law
provided the procedure prescribed by that law is reasonable, fair and just.
The court has introduced the expression of the ‘due process of law’. Thus in
effect, the protection under Article 21 should be available against both
arbitrary executive action and arbitrary legislative action of the State.
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● The Supreme Court has also declared some of the rights such as Right to
live with dignity, Right to the decent environment, Right to livelihood, Right
to privacy, Right to health, Right to free legal aid, Right to travel abroad,
Right against bonded labour, Right to information etc. as part of Article 21.
● The Supreme Court in Aruna Shanbugh vs Union of India, 2011 case allowed
passive euthanasia to be practised on a case by case basis and recognized
the right of a person to die with dignity.
● The Supreme Court in Justice K S Puttaswamy vs Union of India, 2017 case
held the right to privacy as an intrinsic part of the right to life under Article
21.

Article 21 A:

● Article 21 A was added to the Indian Constitution by the 86th Constitutional

Amendment Act of 2002.
● Article 21 A says that all children of the age of six to fourteen years shall be
provided free and compulsory education in such a manner as determined
by the State.
● It makes elementary education a Fundamental Right.
● Before the 86th Constitutional Amendment Act of 2002, Article 45 in Part IV
(DPSP) of the Constitution contained the provision for free and compulsory
education for children
● The 86th Amendment Act changed the subject matter of Article 45, and now
it reads—‘The State shall endeavour to provide early childhood care and
education for all children until they complete the age of six years.’
● The 86th Amendment Act also added a new fundamental duty under Article
51A(k). According to Article 51A(k) —‘It shall be the duty of every citizen of
India to provide opportunities for education to his child or ward between
the age of six and fourteen years’.
● The Supreme Court in Unnikrishnan vs State of Andhra Pradesh 1993 case,
recognised a Fundamental Right to primary education in the right to life
under Article 21. It also held that every child or citizen of this country has a
right to free education until he completes 14 years of age.
● The Right of Children to Free and Compulsory Education Act, 2009 (RTE Act)
was enacted by the Parliament to implement Article 21A.
● The RTE Act seeks to provide free and compulsory elementary education of
satisfactory and equitable quality in a formal school which satisfies certain

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essential norms and standards. It also ensures that no children are denied
admissions if not having documents such as birth certificates etc.

Article 22:

● Article 22 provides protection to persons who are arrested or detained. It

does not confer the Fundamental Right against arrest and detention but,
comes in play when a person is arrested.
● There are two types of detention, punitive and preventive. Punitive
detention means detention of a person to punish him/her for an offence
after trial and conviction in a court of law. In preventive detention, a
person is detained without trial and conviction by a court. Its purpose is to
prevent the person from committing an offence in the near future.
● Article 22 confers to the person who is arrested or detained under an
ordinary law following rights:
(i) Right to be informed of the grounds of arrest.
(ii) Right to consult and be defended by a legal practitioner.
(iii) Right to be produced before a magistrate within 24 hours, excluding the
journey time.
(iv) Right to be released after 24 hours unless the magistrate authorizes
further detention.
● A person detained under a preventive detention law or an enemy alien is
not provided with these safeguards.
● The protection from arrest and detention under the ordinary law applies
only to an act of a criminal or quasi-criminal nature or some activity
prejudicial to the public interest, and not under the orders of a court, civil
arrest, arrest on failure to pay the income tax and deportation of an alien.
● The protection under preventive detention is available to both citizens as
well as aliens.
(i) The detention cannot exceed three months unless an advisory board
(consisting of the judges of a high court) reports sufficient cause for the
same.
(ii) The detenu should be communicated the grounds of detention.
However, the facts need not be disclosed, keeping in mind the public
interest.
(iii) An opportunity should be afforded to the detenu to make a
representation against the order of the detention.

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● Under Article 22, the Parliament is authorized to prescribe the

circumstances and the classes of cases in which (a) a person can be
detained for more than three months under a preventive detention law
without obtaining the opinion of an advisory board; (b) the maximum
period for the detention of a person in any classes of cases under a
preventive detention law; and (c) the procedure to be followed in an
inquiry by an advisory board.
● In the 44th Amendment Act of 1978, the period of detention without
obtaining the opinion of an advisory board has been reduced from 3 to 2
months. This provision has not been brought into the force yet.
● Preventive detention falls under the Concurrent List. Both the Parliament
and the state legislatures can make a law on the reasons associated with
the security of a state, the maintenance of public order and the
maintenance of supplies and services essential to the community. However,
the Parliament has an exclusive authority to make a law on preventive
detention for the reasons associated with defence, foreign affairs and the
security of India.
FUNDAMENTAL RIGHTS: ARTICLE 20 to ARTICLE 28

Part III of the Indian Constitution contains the Fundamental Rights from Articles 12 to 35. Part III of the
Constitution is described as the Magna Carta of India, and it is inspired by the Constitution of USA (Bill of
Rights).
The Supreme Court is the guarantor and the defender of the Fundamental Rights. The person whose
Fundamental Rights have been violated can directly go to the Supreme Court for their enforcement.

 Article 20: Protection in respect of conviction for offences (Right to Freedom)

 Article 21: Protection of life and personal liberty (Right to Freedom)
 Article 21 A: Right to elementary education (Right to Freedom)
 Article 22: Protection against arrest and detention in certain cases (Right to Freedom)
 Article 23: Prohibition of traffic in human beings and forced labour (Right Against Exploitation)
 Article 24: Prohibition of employment of children in factories, etc. (Right Against Exploitation)
 Article 25: Freedom of conscience and free profession, practice and propagation of religion
(Right to Freedom of Religion)
 Article 26: Freedom to manage religious affairs (Right to Freedom of Religion)
 Article 27: Freedom from payment of taxes for promotion of any religion (Right to Freedom of
Religion)
 Article 28: Freedom from attending religious instruction or worship in certain educational
institutions (Right to Freedom of Religion)

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ARTICLE 20 to ARTICLE 28: 

RIGHT TO FREEDOM:

Article 20:

 Article 20 of the Constitution grants protection against arbitrary and excessive punishment to an
accused person. It applies to the person whether he/she is a citizen or a foreigner or any legal
person such as a corporation or a company.
 There are three provisions for its enforcement:
(a) No ex-post-facto law: Under it, the State cannot enact criminal legislation and give it
retrospective effect. A person can be convicted only for a violation of law in force at the time of
the commission of the act. The person cannot be given punishment greater than that prescribed
by the law in force during the time of the commission of the act. 
However, this provision applies only to criminal laws and not to civil laws or tax laws. The
protection does not apply to cases of preventive detention.
(b) No double jeopardy: The person cannot be prosecuted and punished more than once for the
commission of the same offence.
This protection is available only against criminal courts or criminal tribunals and not against civil
courts and non-judicial bodies. It is also not available in proceedings either before departmental
or administrative authorities.
(c) No self-incrimination: A person accused of any offence cannot be forced to be a witness
against himself. Any confessional statement, voluntary or under compulsion made by an
accused to the police is not admissible as evidence in the court. The provision extends only to
criminal proceedings and not to civil proceedings.
This protection does not apply to the judicial bodies as any confessional statement made by an
accused before the judicial magistrate is admissible as evidence in the court. The protection is
also not available against compulsory production of material objects; the compulsion to give
thumb impression, specimen signature, blood specimens; and compulsory exhibition of the
body.
 The Supreme Court in Selvi vs the State of Karnataka, 2010 case held that no person can be
compelled to undergo the polygraph test, brain mapping and narco analysis as they are v iolative
of the right against self-incrimination under Article 20(3), and right to life and personal liberty
under Article 21.

Article 21:

 According to Article 21 of the Constitution, the State shall not deprive a person of his life or
personal liberty except according to the procedure established by law. Both citizens and non-
citizens enjoy this right.
 In A K Gopalan vs State of Madras (1950) case, the Supreme Court held that the protection
under Article 21 is available only against arbitrary executive action and not from arbitrary
legislative action, i.e. the State can deprive the right to life and personal liberty of a person by
enacting a law.
 The Constitution under Article 21 provides for the ‘procedure established by law’ which
originated under the English Constitution, rather than the ‘due process of law’ which is
contained in the American Constitution. 

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 Under the ‘procedure established by law’, the validity of a law that has prescribed a procedure
cannot be questioned on the ground that the law is unreasonable, unfair or unjust. The court
does not examine the reasonableness of the law.
 Under the ‘due process of law’, protection should be available not only against arbitrary
executive action but also against arbitrary legislative action. Here, the court applies the Principle
of Natural Justice and looks into the reasonableness of the law.
 In Menaka Gandhi vs Union of India (1978) case, the Supreme Court ruled that the right to life
and personal liberty of a person can be deprived by law provided the procedure prescribed by
that law is reasonable, fair and just. The court has introduced the expression of the ‘due process
of law’. Thus in effect, the protection under Article 21 should be available against both arbitrary
executive action and arbitrary legislative action of the State.
 The Supreme Court has also declared some of the rights such as Right to live with dignity, Right
to the decent environment, Right to livelihood, Right to privacy, Right to health, Right to free
legal aid, Right to travel abroad, Right against bonded labour, Right to information, etc., as part
of Article 21.
 The Supreme Court in Aruna Shanbugh vs Union of India, 2011 case allowed passive euthanasia
to be practised on a case by case basis and recognised the right of a person to die with dignity.
 The Supreme Court in Justice K S Puttaswamy vs Union of India, 2017 case held the right to
privacy as an intrinsic part of the right to life under Article 21.

Article 21 A:

 Article 21 A was added to the Indian Constitution by the 86th Constitutional Amendment Act of
2002. 
 Article 21 A says that all children of the age of six to fourteen years shall be provided free and
compulsory education in such a manner as determined by the State. 
 It makes elementary education a Fundamental Right.
 Before the 86 Constitutional Amendment Act of 2002, Article 45 in Part IV (DPSP) of the
th

Constitution contained the provision for free and compulsory education for children.
 The 86 Amendment Act changed the subject matter of Article 45, and now it reads—‘The State
th

shall endeavour to provide early childhood care and education for all children until they
complete the age of six years.’
 The 86 Amendment Act also added a new fundamental duty under Article 51A(k). According to
th

Article 51A(k) —‘It shall be the duty of every citizen of India to provide opportunities for
education to his child or ward between the age of six and fourteen years’.
 The Supreme Court in Unnikrishnan vs State of Andhra Pradesh 1993 case, recognised a
Fundamental Right to primary education in the right to life under Article 21. It also held that
every child or citizen of this country has a right to free education until he completes 14 years of
age.
 The Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) was enacted by the
Parliament to implement Article 21A. 
 The RTE Act seeks to provide free and compulsory elementary education of satisfactory and
equitable quality in a formal school that satisfies certain essential norms and standards. It also
ensures that no children are denied admissions if not having documents such as birth
certificates etc. 

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Article 22:

 Article 22 provides protection to persons who are arrested or detained. It does not confer the
Fundamental Right against arrest and detention but, comes in play when a person is arrested.
 There are two types of detention, punitive and preventive. Punitive detention means the
detention of a person to punish him/her for an offence after trial and conviction in a court of
law.  In preventive detention, a person is detained without trial and conviction by a court. Its
purpose is to prevent the person from committing an offence in the near future.
 Article 22 confers to the person who is arrested or detained under an ordinary law following
rights: 
(i) Right to be informed of the grounds of arrest
(ii) Right to consult and be defended by a legal practitioner
(iii) Right to be produced before a magistrate within 24 hours, excluding the journey time
(iv) Right to be released after 24 hours unless the magistrate authorizes further detention
 A person detained under a preventive detention law or an enemy alien is not provided with
these safeguards.
 The protection from arrest and detention under the ordinary law applies only to an act of a
criminal or quasi-criminal nature or some activity prejudicial to the public interest, and not
under the orders of a court, civil arrest, arrest on failure to pay the income tax and deportation
of an alien.
 The protection under preventive detention is available to both citizens as well as aliens. 
(i) The detention cannot exceed three months unless an advisory board (consisting of the judges
of a high court) reports sufficient cause for the same.
(ii) The detenu should be communicated on the grounds of detention. However, the facts need
not be disclosed, keeping in mind the public interest. 
(iii) An opportunity should be afforded to the detenu to make a representation against the order
of the detention. 
 Under Article 22, the Parliament is authorized to prescribe the circumstances and the classes of
cases in which (a) a person can be detained for more than three months under a preventive
detention law without obtaining the opinion of an advisory board; (b) the maximum period for
the detention of a person in any classes of cases under a preventive detention law; and (c) the
procedure to be followed in an inquiry by an advisory board.
 In the 44th Amendment Act of 1978, the period of detention without obtaining the opinion of
an advisory board has been reduced from 3 to 2 months. This provision has not been brought
into the force yet.
 Preventive detention falls under the Concurrent List. Both the Parliament and the state
legislatures can make a law on the reasons associated with the security of a state, the
maintenance of public order and the maintenance of supplies and services essential to the
community. However, the Parliament has an exclusive authority to make a law on preventive
detention for the reasons associated with defence, foreign affairs and the security of India.

RIGHT AGAINST EXPLOITATION:

Article 23:

 Article 23 of the Constitution prohibits traffic in human beings, beggar (forced labour) and
similar forms of forced labour. Such practices are punishable under the law made by the
Parliament, and this right is available to both citizens as well as non-citizens.

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 Article 23 protects the individual against both the State and private persons.
 Traffic in human beings means selling and buying of human beings just like goods; forcing
women and children into immoral activities, including prostitution; devadasis; and slavery. The
Parliament has enacted the Immoral Traffic (Prevention) Act, 1956 to punish such acts.
 Begar means a person is made to do compulsory work without payment. 
 Forced labour includes compelling a person to work against his will. It includes not only physical
or legal force but also the forces arising from economic compulsions. The Parliament has
enacted the Bonded Labour System (Abolition) Act, 1976; the Minimum Wages Act, 1948; the
Contract Labour Act, 1970 and the Equal Remuneration Act, 1976 to give effect to this right.
 However, the State can impose compulsory services, such as the military service or social
service, for which it is not bound to pay. The persons convicted with regressive imprisonment
may be forced to work provided that they are paid a fair remuneration. 
 The Parliament has (and the state legislature does not have) power to make laws for prescribing
punishment for offences related to traffic in human beings and forced labour.

Article 24:

 Article 24 prohibits the employment of children below 14 years of age in any hazardous
employment, such as in a factory, mine, construction work, etc. Their employment in any
innocent or harmless work is not prohibited. 
 The Parliament has enacted the Child Labour (Prohibition and Regulation) Act, 1986, to prohibit
the employment of children below a certain age. The 1986 Act has identified nearly 15
hazardous industries in which the employment of children below 14 years of age has been
prohibited. 
 The Supreme Court in 1996 called for the establishment of Child Labour Rehabilitation Welfare
Fund in which a fine of Rs 20,000 was to be deposited by the offending employer for each child
employed by him. 
 The Parliament enacted the Commissions for Protection of Child Rights Act, 2005 which
provided for the establishment of a National and State Commissions for Protection of Child
Rights. It also provided for the establishment of the Children’s Courts for speedy trial of offences
against children.
 The government in 2006 banned the employment of children as domestic servants or workers in
hotels, dhabas, restaurants, shops, factories, tea-shops, etc. 
 The Parliament has enacted Child Labour (Prohibition and Regulation) Amendment Act, 2016,
which prohibits the employment of children below 14 years in all occupations whether
hazardous or non-hazardous. 

RIGHT TO FREEDOM OF RELIGION:

Article 25:

 Article 25 confers on all the individuals, the right to freedom of religion. 

 All the individuals are equally entitled to freedom of conscience and the right to freely profess,
practice and propagate religion. It is available to both citizens and non-citizens.
 Freedom of conscience means the inner freedom of an individual to shape his relationship with
God in his own desirable way.

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 Right to profess includes declaration of one’s religious beliefs and faith freely and openly. 
 Right to practice means the performance of rituals, ceremonies, and exhibition of ideas and
beliefs.
 Right to propagate means transmission and propagation of one’s religious beliefs to others or
propagating the ideas of one’s religion. But, it does not include a right to convert another person
to one’s own religion. 
 The Supreme Court in Reverend Fr. Stanislaus vs State of Madhya Pradesh, 1977 case held that
the fundamental right of an individual to spread or transmit the tenets of his religion cannot be
questioned.
 However, these rights are not absolute and are subject to reasonable restrictions in the interest
of maintaining public order, morality, health and other provisions.  
 The State can restrict or regulate any economic, financial, political or other secular activity
associated with religious practice; and may provide for social welfare and reform or throw open
Hindu religious institutions of a public character to all classes and sections of Hindus. 

Article 26:

 Article 26 recognises religious freedom of the religious denominations. According to it, every
religious denomination or any of its sections has the right to establish and maintain institutions
for religious and charitable purposes. They have a right to manage its own affairs in matters of
religion. They also have a right to own and acquire movable and immovable property and the
right to administer such property in accordance with the law. 
 These rights subject to reasonable restrictions such as public order, morality and health but not
subject to other provisions relating to the Fundamental Rights.
 The Supreme Court held that a religious denomination must satisfy that it should be a collection
of individuals who have a system of beliefs which they regard as conducive to their spiritual
well-being and should have a common organisation. It should also be designated by a distinctive
name, such as ‘Ramakrishna Mission’, ‘Ananda Marga’, etc.

Article 27:

 Article 27 prohibits the State from levying and collecting any taxes for the promotion or
maintenance of any particular religion or religious denomination.
 The public money should not be spent by the State for the promotion or maintenance of any
particular religion.
 It prohibits only levying of a tax and not a fee. A fee can be imposed on religious endowments
for meeting the regulation expenditure. A fee can also be levied on pilgrims for providing some
special service or safety measures to them. 
 It lays down the principle of secularism of the State in which all religions co-exist together.

Article 28:

 Article 28 deals with freedom from attending religious instruction or worship in certain
educational institutions. 
 It says that religious instruction shall not be provided in any educational institution wholly
maintained out of State funds, such as government schools and colleges, etc. 
 In educational institutions administered by the State but established under any endowment or
trust, religious instruction is permitted. 

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 A person attending any educational institution recognised by the State or receiving aid out of
State funds shall not be required to attend any religious instruction or worship in that institution
without his consent. The consent of the guardian is needed in case of a minor. 
 Article 28 provides four types of educational institutions: 
(a) Institutions that are wholly maintained by the State
(b) Institutions that are administered by the State but established under any trust or
endowment
(c) Institutions that are recognised by the State
(d) Institutions that receive aid from the State
 Religious instruction is prohibited completely in the institutions wholly maintained by the State
while it is permitted in the institutions administered by the State but established under any
endowment or trust. 
 Religious instruction is permitted on a voluntary basis in the institutions recognised by the State
and the institutions receiving aid from the State. 

FUNDAMENTAL RIGHTS - Article 29 to 35

 Article 29: Protection of language, script and culture of minorities (Cultural and Educational
rights)
 Article 30: Right of minorities to establish and administer educational institutions (Cultural and
educational rights)
 Article 31: Right to compulsory acquisition of property (Repealed)
 Article 32: Right to move the Supreme Court for the enforcement of fundamental rights (Right
to constitutional remedies)
 Article 33: Power of the Parliament to restrict or abrogate the fundamental rights of the
members of armed forces, etc. 
 Article 34: Restriction on fundamental rights while martial law is in force in any area within the
territory of India
 Article 35: Power of the Parliament to make laws to give effect to certain specified fundamental
rights.

CULTURAL AND EDUCATIONAL RIGHTS:

Article 29:

 Article 29(1) states that any section of the citizens resident in India having a distinct language,
script or culture of its own, has the right to conserve its separate identity. This right belongs to
any community, including the majority community.
 Article 29(2) states that citizens shall not be denied admission into any educational institution
maintained by the State or receiving aid out of State funds on grounds only of religion, race,
caste, or language.
 Article 29(1) protects the right of a group while Article 29(2) provision protects the right of a
citizen as an individual irrespective of the community to which he belongs.
 The protection is granted under Article 29 to both religious as well as linguistic minorities. 

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Article 30:

 Article 30 grants the Right of minorities (religious or linguistic), to establish and administer
educational institutions.
 The term ‘minority’ has not been defined in the Constitution anywhere.
 A minority educational institution enjoys the right to property as the fundamental right. The
State can acquire the property of the minority educational institution by law in public interest
provided that it pays adequate compensation to such institution. This provision was added by
the 44th Constitutional Amendment Act, 1978.
 The State shall not discriminate against any educational institution managed by a minority in
granting the aid.
 The protection under Article 30 is provided only to the minorities (religious or linguistic) and
does not to any other section of the citizens (as under Article 29). 
 Under Article 15(5), the reservation policy of the state in favour of backward classes in
educational institutions does not apply to a minority educational institution.
 The Supreme Court in St. Stephens College vs Delhi University, 1992 case held that a minority
educational institution can reserve not more than 50% of its seats in favour of children coming
from its own community.
 The Supreme Court in TMA Pai vs The State of Karnataka, 2002 case held that a Minority
Educational Institution is free to follow its own admission process, provided that it must be
transparent and merit-based. Similarly, it can also follow its own fee structure.

RIGHT TO PROPERTY (REPEALED):

 Originally, the right to property was one of the seven fundamental rights under Part III of the
Constitution. 
 Article 31 guaranteed that no person shall be deprived of his property except by authority of
law. This right was available to both citizens and foreigners.
 Article 19(1)(f) guaranteed to every citizen the right to acquire, hold and dispose of the
property.
 The State was empowered to acquire the property of a person for the public purpose provided
that it should compensate the owner adequately.
 The 44th Constitutional Amendment Act, 1978 abolished the right to property as a Fundamental
Right and repealed Article 19(1)(f) and Article 31. The Act inserted a new Article 300A in Part XII
named ‘Right to Property’ which provides that no person shall be deprived of his property
except by the law.
 Thus, the right to property remains as a legal right or a constitutional right, and not a
fundamental right. 

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RIGHT TO CONSTITUTIONAL REMEDIES:

Article 32:

 Article 32 confers on all citizens, the right to move to the Supreme Court for the enforcement of
Fundamental Rights, if violated, i.e., the right to constitutional remedies.
 Dr B.R. Ambedkar described Article 32 as the very soul of the Constitution and the very heart of
it.
 The Supreme Court ruled that Article 32 is a basic feature of the Constitution. It cannot be
abridged or taken away even by an amendment to the Constitution.
 The Supreme Court has the power to issue directions or writs (habeas corpus, mandamus,
prohibition, certiorari and quo-warranto) for the enforcement of any of the fundamental rights.
Parliament can also empower any other court to issue directions, orders and writs of all kinds.
However, under Article 32, the Supreme Court cannot determine a question that does not
involve Fundamental Rights.
 The President can suspend the right to move any court for the enforcement of the fundamental
rights during a national emergency as provided by Article 359.
 The Supreme Court, in case of the enforcement of Fundamental Rights, has original jurisdiction
but not exclusive jurisdiction as it is concurrent with the jurisdiction of the high court under
Article 226. 
 Writs: The Supreme Court (under Article 32) and the high courts (under Article 226) can issue
the writs of habeas corpus, mandamus, prohibition, certiorari and quo-warranto. However, the
Parliament can also empower any other court to issue these writs. These writs are borrowed
from English law where they are known as ‘prerogative writs’.
 The Supreme Court can issue writs only for the enforcement of fundamental rights, whereas a
high court can issue writs for other purposes also. Thus, the writ jurisdiction of the high court is
wider than that of the Supreme Court. 
 The Supreme Court can issue writs throughout the territory of India, whereas a high court can
issue writs within its territorial jurisdiction. 
 The Supreme Court cannot refuse to exercise its writ jurisdiction, whereas a high court may
refuse to exercise its writ jurisdiction as the remedy under Article 226 is discretionary.
1. Habeas Corpus: It literally means ‘to have the body of’. It is issued when a person has been
detained by another person. If the detention is found to be illegal, the court will set the
detained person free. This writ can be issued against both public and private individuals. The
writ is not issued when the detention is lawful, or the proceeding is for contempt of a court or a
legislature or, detention is outside the jurisdiction of the court.
2. Mandamus: It literally means ‘we command’. It is issued to a public official asking him to
perform the official duties that he has failed to perform. It can also be issued against any public
body, a corporation, a tribunal, an inferior court or government for the same purpose. This writ
is not issued against a private individual or, when the duty is discretionary and not mandatory
or, to enforce departmental instruction that does not possess statutory force or, to enforce a
contractual obligation. It cannot be issued against the President or the governors and against
the chief justice of a high court acting in a judicial capacity.
3. Prohibition: It literally means ‘to forbid’. It is issued by a higher court to a lower court or tribunal
to prevent the latter from exceeding its jurisdiction. It can only be issued only against judicial
and quasi-judicial authorities. It is not available against legislative bodies, administrative
authorities, and private individuals.

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4. Certiorari: It literally means ‘to be certified’ or ‘to be informed’. It is issued by a higher court to a
lower court or tribunal to transfer a pending case to itself or to squash the order. The writ of
certiorari is both preventive as well as curative, unlike the writ of prohibition, which is only
preventive. Certiorari can also be issued against administrative authorities besides judicial and
quasi-judicial authorities. It cannot be issued against private individuals and legislative bodies.
5. Quo-Warranto: It literally means ‘by what authority or warrant’. It is issued by the court to
prevent illegal usurpation of public office by a person. It can only be issued in case of a
substantive public office of a permanent character under the law or by the Constitution. It
cannot be issued in cases of ministerial office or private office. Unlike the other writs, it can be
sought by any interested person and not necessarily by the aggrieved person.

ARMED FORCES AND FUNDAMENTAL RIGHTS:

Article 33:

 Article 33 confers the power on the Parliament to restrict or abrogate the fundamental rights of
the members of armed forces, para-military forces, intelligence agencies, police forces, etc. This
is to ensure the maintenance of discipline and the proper discharge of their duties.
 Only the Parliament and not the state legislatures have the power to make laws related to this
which cannot be challenged in any court on the ground of violation of any fundamental rights. 
 The Parliament has enacted the Army Act, 1950, the Navy Act, 1950, the Air Force Act, 1950, the
Police Forces (Restriction of Rights) Act, 1966, etc., which imposes restrictions on their freedom
of speech, right to form associations, right to be members of trade unions or political
associations, right to communicate with the press, right to attend public meetings or
demonstrations, etc.

MARTIAL LAW AND FUNDAMENTAL RIGHTS:

Article 34:

 Article 34 empowers the state to provide for the restrictions on fundamental rights while martial
law is in force in any area within the territory of India. The Parliament can also validate any
sentence passed, punishment inflicted, or other act done under martial law in such area.
 Such an Act made by the Parliament cannot be challenged in any court on the ground of
contravention of any of the fundamental rights. 
 The expression ‘martial law’ is not defined anywhere in the Constitution. It has been borrowed
in India from the English law. Martial Law implies the suspension of ordinary law and the
government by military tribunals for maintaining or restoring order in society. It is imposed
under extraordinary circumstances like war, rebellion, riot or any violent resistance to the law. 

EFFECTING CERTAIN FUNDAMENTAL RIGHTS:

Article 35:

 Article 35 vests the power to make laws, to give effect to certain fundamental rights only in the
Parliament and not in the state legislatures. 

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 According to Article 35, the Parliament shall have, and the state legislature shall not have the
power to make laws with respect to prescribing (a) residence as a condition for certain
employments or appointments in a state or union territory (Article 16); (b) empowering courts
other than the Supreme Court and the high courts to issue directions, orders and writs (Article
32); (c) restricting or abrogating the application of Fundamental Rights to members of armed
forces, etc. (Article 33); (d) indemnifying any government servant or any other person for any
act done during the operation of martial law in any area (Article 34).
 It also provides that the Parliament shall have and the state legislature shall not have the
powers to make laws for prescribing punishment for the offences under the fundamental rights
in Article 17 and Article 23. 

BASIC STRUCTURE DOCTRINE

 The Supreme Court in Shankari Prasad vs Union of India, 1951 case held that the power of the
Parliament to amend the Constitution under Article 368 also includes the power to amend
Fundamental Rights. The word ‘law’ in Article 13 includes only ordinary laws and not the
constitutional amendment acts. Thus, the Parliament can abridge the Fundamental Rights by
enacting a constitutional amendment act. 
 In Golak Nath vs the State of Punjab, 1967, case the Supreme Court reversed its earlier stand
and held that the Parliament can not abridge fundamental rights as constitutional amendment
act is also a law within the meaning of Article 13 and hence, would be declared void for violating
the Fundamental Rights. 
 The 24th Constitutional Amendment Act, 1971 was enacted, which provided that the Parliament
has the power to abridge the Fundamental Rights under Article 368 and such an act will not be
considered a law under Article 13.
 In Kesavananda Bharati vs the State of Kerala, 1973 case, the Supreme Court held that the
Parliament is empowered to abridge or take away any of the Fundamental Rights but without
altering the Basic Structure of the Constitution. 
 In Indira Gandhi vs Raj Narain, 1975 case, the Supreme Court invalidated a provision of the 39th
Amendment Act (1975) which kept the election disputes involving the Prime Minister and the
Speaker of Lok Sabha outside the jurisdiction of all courts. 
 The 42nd Constitutional Amendment Act, 1976 amended Article 368 and declared that there is
no limitation on the constituent power of Parliament and any amendment cannot be questioned
in any court on any ground including that of the contravention of any Fundamental Rights. The
Supreme Court in the Minerva Mills vs Union of India, 1980 case, declared this provision as
unconstitutional and void as it excluded judicial review, which is a ‘basic feature’ of the
Constitution.
 Thus, the Parliament can amend any part of the Constitution under Article 368, including the
Fundamental Rights but without affecting the ‘basic structure’ of the Constitution.
 The Supreme Court, from time to time through various judgements, has declared the
components of the ‘basic structure’ of the Constitution, such as:

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1. The supremacy of the Constitution

2. Unity and integrity of the nation
3. Judicial review
4. The rule of law
5. Freedom and dignity of the individual
6. Principles underlying fundamental rights
7. Effective access to justice
8. Principle of equality
9. Secular character of the Constitution
10. Independence of Judiciary 
11. Powers of the Supreme Court under Articles 32, 136, 141 and 142
12. Powers of the High Courts under Articles 226 and 227
13. Sovereign, democratic and republican nature of the Indian polity
14. Parliamentary system
15. Limited power of Parliament to amend the Constitution
16. Free and fair elections
17. Separation of powers between the legislature, the executive and the judiciary
18. Harmony and balance between Fundamental Rights and Directive Principles
19. Federal character of the Constitution
20. Welfare state (socio-economic justice)

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