Fundamental Rights: Complete Concept

Notes

Fundamental Rights (FRs) are in Part III (Articles 12-35), called the Magna Carta of India. The idea is borrowed from the US Bill of Rights. They are justiciable: a citizen can move the Supreme Court (Art. 32) or High Courts (Art. 226) when they are violated. They are not absolute, because the State can impose reasonable restrictions.

The Constitution originally gave seven FRs. The Right to Property (Art. 31) was deleted by the 44th Amendment (1978) and made a legal right under Art. 300A (Part XII). Six FRs remain:

Right to Equality (Art. 14-18)
Right to Freedom (Art. 19-22)
Right against Exploitation (Art. 23-24)
Right to Freedom of Religion (Art. 25-28)
Cultural and Educational Rights (Art. 29-30)
Right to Constitutional Remedies (Art. 32)

Art. 12: "State" includes the Government and Parliament of India, the Government and Legislature of each State, and all local and other authorities within the territory of India or under the control of the Government of India.

Art. 13: Laws inconsistent with or in derogation of FRs are void to the extent of the inconsistency.

Doctrine of Severability: only the offending part is void, if it can be separated.
Doctrine of Eclipse: a pre-Constitution law that violates an FR is not dead but dormant. It revives if the inconsistency is removed (Bhikaji Narain Dhakras case).
Doctrine of Waiver: FRs cannot be waived (Behram Khurshed Pesikaka).
Art. 13(4) (24th Amendment) says constitutional amendments under Art. 368 are not "law" under Art. 13. Kesavananda Bharati (1973) added that amendments cannot violate the basic structure.

Who gets which right

Citizens only: Art. 15, 16, 19, 29, 30. (Art. 15, 16, 19, 29 and 30 are also not available to foreigners.)
All persons (including foreigners): Art. 14, 20, 21, 21A, 22, 23, 24, 25-28.
Against private individuals too: Art. 15(2), 17, 23, 24.

Limits and suspension

Art. 31A, 31B, 31C protect certain land reform and Directive Principles laws.
Ninth Schedule: laws placed there after 24 April 1973 are open to judicial review if they violate the basic structure (I.R. Coelho, 2007).
Art. 33: Parliament can restrict FRs of armed forces and police. Art. 34: restrictions while martial law is in force. Art. 35: only Parliament, not State legislatures, can make laws to give effect to certain FRs.
Art. 358: Art. 19 is automatically suspended during a National Emergency declared on grounds of war or external aggression only.
Art. 359: the President can suspend enforcement of FRs, but not Art. 20 and 21 (44th Amendment).

Key Points

Part III covers Art. 12-35. Justiciable, but not absolute.
Right to Property is now only a legal right (Art. 300A).
Art. 13 is the base for judicial review of legislation.
Art. 20 and 21 can never be suspended, even in an Emergency.
Rights against private persons: Art. 15(2), 17, 23, 24.

MCQs

Q1. The Right to Property was removed from the list of Fundamental Rights by which Amendment?
(a) 24th
(b) 42nd
(c) 44th
(d) 25th
Ans: (c). The 44th Amendment (1978) deleted Art. 31 and inserted Art. 300A.

Q2. Which of the following Fundamental Rights is available to foreigners also?
(a) Art. 15
(b) Art. 16
(c) Art. 19
(d) Art. 21
Ans: (d). Art. 15, 16, 19 are for citizens only; Art. 21 is for all persons.

Q3. Which Fundamental Rights cannot be suspended even during a National Emergency?
(a) Art. 14 and 19
(b) Art. 20 and 21
(c) Art. 21 and 22
(d) Art. 19 and 21
Ans: (b). The 44th Amendment protects Art. 20 and 21 from suspension under Art. 359.