Fundamental Rights — Scheme, Scope & Limits

Part III is the justiciable core. Originally there were seven rights; the Right to Property was removed from Part III by the 44th Amendment, 1978 and made a legal right under Article 300A. Six categories remain.

“They together form a seamless web reflecting the aims and aspirations of the people.”

Granville Austin

Granville Austin called Fundamental Rights and Directive Principles the “conscience of the Constitution”. Palkhivala called the rights the “anchor of the Constitution”, providing “the iron framework within which experiments in social and economic changes may be carried out”. The philosophical roots run through Locke (natural rights), Laski (“conditions of social existence essential for human personality”), Sen (rights as capability-expanding freedoms), Dworkin (rights as trumps against majority power), Gautam Bhatia (transformative constitutionalism) and Upendra Baxi (“lived” and “insurgent” constitutionalism).

Scope — who holds which right

• Citizens only — Articles 15, 16, 19, 29.
• All persons — Articles 14, 20–22, 21.
• Horizontal (even against private persons) — Article 17 (untouchability), 15(2) (public access), 23 (trafficking and forced labour).

Limits and suspension

Rights are not absolute: reasonable restrictions are allowed for sovereignty and integrity, security, public order, decency or morality, contempt, defamation and incitement. Article 358 suspends Article 19 during a national emergency; Article 359 suspends the right to move courts for certain rights — but Articles 20 and 21 are protected after the 44th Amendment. Article 33 lets Parliament restrict the rights of armed forces, police and intelligence agencies for discipline.

Affirmative action — Articles 15 & 16

Andre Beteille criticises extending reservation to dominant castes — Marathas, Patidars, Jats, Gujjars, Kapus — as weakening the original purpose of affirmative action.

The Two Faces of Article 21 — Due Process vs Procedure Established by Law

The framers chose their words with care. Early drafts carried “due process”; the final Article 21 reads: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Why India chose the narrower phrase

B.N. Rau feared judicial overreach; due process could block social-reform legislation; communal violence after Partition was thought to require preventive-detention powers; Govind Ballabh Pant argued for legislative discretion to maintain order.

How the courts narrowed the gap

A.K. Gopalan gave a narrow reading. Maneka Gandhi held that the procedure itself must be fair, just and reasonable — effectively reading procedural due process into Article 21. Abhinav Chandrachud argues due process has entered Indian law through interpretation; Manoj Mate calls this use of foreign legal principles “judicial borrowing”.

Free Speech, Expression & the Right to Protest

Article 19(1)(a) protects speech and expression; 19(1)(b) peaceful assembly; 19(1)(c) association. The pressure points are familiar.

• Criminal defamation — IPC Sections 499–500 can suppress criticism of the powerful.
• Contempt of court — used against Prashant Bhushan and Kunal Kamra.
• Sedition — Section 124A, used against Tilak and Gandhi.

Section 124A is “the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.”

Mahatma Gandhi

Kedar Nath Singh limited sedition to incitement to violence; Arup Bhuyan adopted the Brandenburg test of imminent violence. In the Constituent Assembly, K.M. Munshi opposed retaining sedition —

“The essence of democracy is criticism of government.”

K.M. Munshi

— and the offence was omitted from Article 19(2). Recent developments: the Supreme Court suspended Section 124A in May 2022 under CJI N.V. Ramana; the Law Commission in June 2023 recommended retaining sedition with safeguards; and the Bharatiya Nyaya Sanhita proposed Section 150 on acts endangering sovereignty, unity and integrity. Apurva Vishwanath warns the new provision may be more oppressive; Upendra Baxi, Faizan Mustafa and Gautam Bhatia stress precise legal language to avoid misuse.

The right to protest

Protest is read into Articles 19(1)(a) and 19(1)(b). Upendra Baxi and Faizan Mustafa stress protest as necessary for a living democracy, even as the state cites public order and shutdowns to limit it.

Right to Information

The Right to Information Act, 2005 built a practical regime for citizens to obtain information from public authorities. Its constitutional basis was laid earlier: Bennett Coleman & Co. v. Union of India (free speech includes the right to read and be informed), Manubhai D. Shah v. LIC (the people’s right to know) and PUCL v. Union of India (RTI tied to free speech).

RTI dismantles secrecy, builds transparency and accountability, empowers citizens and aids participatory governance — helping monitor public funds, welfare, civic services and public projects.

Challenges

Misuse where no locus standi is required; low public awareness; backlog and delay; the RTI Amendment Act, 2019 and concerns over the tenure and service conditions of information commissioners; political influence in appointments; the clash with the Official Secrets Act, 1923; and weak enforcement powers of Information Commissions.

UPSC 2016 · 15 marks — Discuss the Right to Information and underline the challenges being faced in its implementation.

Right to Education

Education became a Fundamental Right through the 86th Amendment. Article 21A guarantees free and compulsory education for children aged 6 to 14, operationalised through the RTE Act, 2009 (in force 1 April 2010).

The Act mandates neighbourhood schools, minimum infrastructure norms, a teacher–student ratio (such as 1:30 in primary), teacher qualifications, Continuous and Comprehensive Evaluation, a no-detention policy up to Class VIII, no capitation fee or admission interview, and a 25% reservation in private unaided schools for economically weaker and disadvantaged children.

“The destiny of India is now being shaped in the classrooms.”

Kothari Commission

The theory draws on T.H. Green and Harold Laski (positive liberty) and Amartya Sen (capability-building). But the access–quality gap is stark: ASER (Pratham) reported that only 47.5% of Class V children could read a Class II textbook. Krishna Kumar flags the gap between policy and practice; Yogendra Yadav argues RTE should extend to early-childhood and secondary education; the T.S.R. Subramanian Committee recommended dropping the no-detention policy.

UPSC 2015

On the Right to Education in India.

Right to Privacy

Louis Brandeis called privacy “the right to be left alone”. The pre-Puttaswamy position was uncertain: M.P. Sharma and Kharak Singh denied or limited it; Gobind and Naz Foundation prepared the ground.

Justice K.S. Puttaswamy’s challenge to Aadhaar produced the landmark 2017 ruling.

“The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as part of the freedoms guaranteed by Part III of the Constitution.”

K.S. Puttaswamy v. Union of India (2017)

Alok Prasanna Kumar identifies the core elements as personal autonomy, freedom to make choices and control over personal information. After Puttaswamy, the Court used privacy to expand autonomy, dignity, identity, consensual adult relationships, the right to die with dignity and data-protection concerns. The state may restrict privacy, but surveillance must be lawful, necessary and proportionate. Comparatively, the United States infers privacy through amendments and the Privacy Act, 1974; Germany has strict laws shaped by its surveillance history; and the European Union relies on Article 8 ECHR and the GDPR.

UPSC 2017 · 10 marks — Right to privacy is an intrinsic part of the right to life. Examine.

Right against Climate Change

The Supreme Court recognised a right against the adverse effects of climate change as a distinct fundamental right, anchored in Article 14 (equality) and Article 21 (life and personal liberty). CJI D.Y. Chandrachud observed that the rights to life and equality cannot be fully realised without a clean and stable environment.

The Great Indian Bustard case — in which power transmission lines in Gujarat and Rajasthan threatened the endangered bird — became the occasion for the holding. India has environmental policies but lacks a single comprehensive climate-change law; the absence of such legislation, the Court reasoned, does not negate the right.

Right to Constitutional Remedies — Article 32, the Writs & Res Judicata

Article 32 gives the right to move the Supreme Court directly for the enforcement of Fundamental Rights — the enforcement of rights is itself made a right.

“If I was asked to name any particular article in this Constitution as the most important — an article without which this Constitution would be a nullity — I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it.”

Dr. B.R. Ambedkar

The five writs

Article 226 gives High Courts a wider writ power — for Fundamental Rights and for any other legal right. V.R. Krishna Iyer called Article 32 a transcendental remedy; P.N. Bhagwati expanded it through Public Interest Litigation; Fali S. Nariman read it as both remedy and command protecting constitutional supremacy; Rohit De argued it helped make the Supreme Court a “people’s court”; P.B. Gajendragadkar highlighted the novelty of making a remedial article itself a Fundamental Right. L. Chandra Kumar recognised judicial review as part of the basic structure.

Habeas Corpus — “you shall have the body”

The basic safeguard of personal liberty: the court orders production of the detained person, examines the legality of detention, and orders release if it is unlawful. In A.D.M. Jabalpur v. S. Shukla, Justice H.R. Khanna described habeas corpus as a process for securing liberty by immediate relief from wrongful or illegal detention. Where custody is ordered by a magistrate, the writ ordinarily cannot be used, the detention being judicially sanctioned.

Res Judicata and Article 32 — “a matter already judged”

Although Article 32 is a Fundamental Right, the Supreme Court has held that res judicata can apply to writ petitions to prevent abuse of process. In Daryao v. State of U.P., a petition dismissed by a High Court under Article 226 cannot be refiled under Article 32 on the same grounds; Amalgamated Coalfields v. Janapada Sabha confirmed that res judicata applies to writ proceedings — subject to exceptions such as breach of natural justice or dismissal not on merits.

UPSC 2020 · 10 marks — Comment on the Right to constitutional remedies in India.

UPSC 2024 — Legal remedies in Part III of the Constitution of India.

Fundamental Rights vs Directive Principles — Conflict to Balance

Different forms, a common constitutional purpose. Fundamental Rights are justiciable, negative limits on the state, protecting liberty and political democracy. DPSPs are non-justiciable positive goals, directing the state toward social and economic democracy. The relationship was settled through a long judicial arc.

From the primacy of rights to the balance of Parts III and IV. Champakam (1951) (FR prevail over DPSPs; led to the First Amendment and Art 15(4)) → Golaknath (1967) (Parliament cannot amend Fundamental Rights; led to 24th & 25th Amendments) → Kesavananda (1973) (Parliament may amend, but not the basic structure; balance of III & IV recognised) → Minerva Mills (1980) (Balance of III & IV is itself basic structure; absolute primacy to DPSPs invalid).

The Constitution is founded on the bedrock of the balance between Parts III and IV.

Chief Justice Y.V. Chandrachud, Minerva Mills

The courts later wove the two together: Olga Tellis read the right to livelihood into Article 21; Unni Krishnan read the right to education into it; I.R. Coelho subjected Ninth-Schedule laws to basic-structure review.

Article 31C and private property

Article 31C gives priority to laws implementing Article 39(b) (distribution of material resources for the common good) and 39(c) (preventing concentration of wealth), shielding them from challenge under Articles 14 and 19. Triggered by the Bank Nationalisation case (R.C. Cooper, 1970) and introduced by the 25th Amendment, it was upheld in Kesavananda (minus the bar on judicial inquiry); the 42nd Amendment‘s extension to all DPSPs was struck down in Minerva Mills. On 5 November 2024, a nine-judge bench held by 7:2 that Article 31C survives in its original form, and that not all private property is automatically a “material resource of the community”.

UPSC 2021

On reconciling Fundamental Rights with Directive Principles.

UPSC 2024 — On whether Directive Principles are more fundamental than Fundamental Rights.

Fundamental Duties

Fundamental Duties sit in Part IVA, Article 51A, added by the 42nd Amendment, 1976 on the recommendation of the Swaran Singh Committee. The 86th Amendment, 2002 added the duty of parents or guardians to provide educational opportunities to children aged six to fourteen. There are eleven duties — among them: to abide by the Constitution and respect the National Flag and Anthem; to uphold the sovereignty, unity and integrity of India; to promote harmony and renounce practices derogatory to women’s dignity; to protect the environment; to develop scientific temper and the spirit of inquiry; to safeguard public property and abjure violence; and to strive towards excellence.

They are civic and moral obligations, apply only to citizens, are non-justiciable, and are placed separately from the rights. The Swaran Singh Committee had also recommended a duty to pay taxes — this was not included.

The Verma Committee and after

After a Supreme Court notice in 1998, the Justice J.S. Verma Committee (1999) recommended raising standards in public life and identified existing laws supporting duties — the RP Act 1951, UAPA 1967, Protection of Civil Rights Act 1955, Wildlife Protection Act 1972 and others. Anupama Rao criticised the Committee for overemphasising citizens’ duties to state and nation, possibly making duty a precondition for citizenship. V.K.R.V. Rao argued that without enforceable duties people may lack the will to fulfil them; Rural Litigation and Entitlement Kendra v. State of U.P. banned illegal mining and stressed environmental duty; the Venkatachaliah Commission recommended awareness campaigns and civic participation.

Scholarly caution

Rajeev Bhargava warns that “composite culture” may be selectively interpreted; Andre Beteille notes socio-cultural barriers to scientific temper; Pratap Bhanu Mehta sees duties as moralistic and often symbolic. Duties may also collide with religious freedom, as in Bijoe Emmanuel v. State of Kerala.

UPSC 2023 · 15 marks — Fundamental Duties promote a sense of civic responsibility among citizens. Comment.