Fundamental Rights of Indian Constitution: Part III, Article 12 and Article 13

Fundamental Rights of Indian Constitution: Meaning and Origins

What Are Fundamental Rights and Why They Are Called Fundamental

Part III of the Constitution, from Article 12 to Article 35, lists the rights that the Constitution itself guarantees to the people of India. The framers drew their inspiration from the Bill of Rights of the United States, and Part III is often called the Magna Carta of India. Its list of justiciable rights is longer and more detailed than the bill of rights of any other country, the United States included.

These rights are called fundamental for two reasons. They are guaranteed and protected by the Constitution, which is the fundamental law of the land, and they are the conditions a person needs for all-round development: material, intellectual, moral and spiritual. Together they aim at what has been called a government of laws and not of men, in which the State cannot act against a person's liberty merely because those in power wish to.

The difference from an ordinary legal right lies in how each can be changed. An ordinary legal right is created by an ordinary law, so the legislature can change it by the ordinary process of law-making. A Fundamental Right can be changed only by amending the Constitution, and no organ of the government may act against it. The courts can declare both legislative and executive action invalid when it violates a Fundamental Right or restricts it unreasonably.

Origins of Fundamental Rights: From the Swaraj Bill to the Constituent Assembly

The demand for written rights grew with the national movement. The Constitution of India Bill of 1895, known as the Swaraj Bill, spoke of freedom of speech, privacy and the franchise. The Rowlatt Act of 1919, which allowed indefinite detention and censorship, turned the demand into a mass campaign for guaranteed civil freedoms.

• Nehru Report, 1928: The All Parties Conference under Motilal Nehru asked for dominion status, a bill of fundamental rights, and joint electorates with reservation of seats for minorities.
• Karachi session, 1931: The Congress adopted a Resolution on Fundamental Rights and Economic Programme, committing itself to civil rights and to social and economic rights such as a minimum wage and the abolition of untouchability and serfdom.
• Constituent Assembly: The Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas was chaired by Sardar Patel, and its Fundamental Rights Sub-Committee by J.B. Kripalani.
• Universal Declaration of Human Rights: The United Nations General Assembly adopted it on 10 December 1948, while the Assembly was still at work; the rights were already in the First Draft of February 1948.

The making of Part III is part of the larger story of the Constituent Assembly and its committees. The Fundamental Rights came through the First Draft of February 1948 and the Second Draft of October 1948 into the final text adopted on 26 November 1949.

List of Fundamental Rights With Articles

Six Fundamental Rights in Part III: Articles 14 to 32

The Constitution as adopted contained seven groups of Fundamental Rights. Six remain today, because the right to property was taken out of Part III in 1978. Each group covers a set of articles, and the articles of the first group are explained in detail on the page on the Right to Equality, Articles 14 to 18.

Article 21A, the right to elementary education, was added later. The 86th Amendment Act of 2002 made elementary education a fundamental right and changed Article 45 in Part IV to deal with early childhood care. Article 32 is the right that gives all the others force: B. R. Ambedkar called it the heart and soul of the Constitution, and the Supreme Court's writ jurisdiction is how it works in practice.

Right to Property: From Fundamental Right to Article 300A

The right to property sat in Part III through Article 19(1)(f), the right of citizens to acquire, hold and dispose of property, and Article 31, which protected every person against being deprived of property except by authority of law. It caused more conflict between Parliament and the Supreme Court than any other right, mainly over the compensation the State had to pay when it acquired land.

The 44th Amendment Act of 1978, enacted by the Janata Party Government headed by Morarji Desai, repealed both provisions. It inserted Article 300A in Part XII, which says that no person shall be deprived of property save by authority of law. Property is now a constitutional or legal right, open to every person and not only to citizens, but it is no longer a Fundamental Right.

1. It can be regulated by an ordinary law of Parliament, without a constitutional amendment.
2. It protects property against executive action but not against legislative action.
3. A person whose property is taken cannot move the Supreme Court under Article 32, though the High Court can be approached under Article 226.
4. There is no guaranteed right to compensation when the State acquires private property.

Features of Fundamental Rights

Features of Fundamental Rights: Justiciable, Qualified and Amendable

The Fundamental Rights share a set of features that explain how they work in court and how far they can be limited. The most important is that they are not absolute: the State can impose reasonable restrictions, and the courts decide whether a restriction is reasonable. In this way the rights balance the liberty of the individual against the needs of society.

• Some are available only to citizens; others to all persons, including foreigners and legal persons such as companies.
• Most protect a person against the State; a few, such as Articles 15(2), 17 and 23, also operate against private individuals.
• Some are negative, limiting the State, while others are positive, conferring a privilege on the person.
• They are justiciable and are guaranteed by the Supreme Court, which can be approached directly.
• They can be curtailed only by a constitutional amendment, never by an ordinary law, and never so as to damage the basic structure.
• They can be suspended during a National Emergency, except the rights in Articles 20 and 21.
• Most are self-executing; a few need a law to give them effect, and Article 35 reserves that law to Parliament.

The point about amendment is the subject of the long contest described under Article 13 below. The point about emergencies has its own rules, because the Constitution treats Article 19 differently from the other rights.

Fundamental Rights Available to Foreigners and to Citizens Only

Five rights belong only to citizens of India. The rest are available to every person on Indian territory, citizen or foreigner, except an enemy alien. The line follows the nature of each right: rights tied to membership of the political community, such as public employment or settling anywhere in India, go to citizens; rights that protect any human being, such as life and liberty, go to all.

The rights of citizens depend on who is a citizen, which is settled by Part II and the law described on the page on citizenship in India.

Fundamental Rights During Emergency: Articles 358 and 359

A National Emergency affects the rights in two different ways, and the 44th Amendment narrowed both after the Emergency of 1975 to 1977. The idea of suspending rights in an emergency came from the Weimar Constitution of Germany.

The protection of Articles 20 and 21 is the lesson of 1975. Since the 44th Amendment took effect on 20 June 1979, the right to life and personal liberty and the protections in conviction stay enforceable even in a National Emergency. The powers themselves are explained on the page on the President's emergency powers.

Limits on Fundamental Rights: Articles 31A to 31C and 33 to 35

Several provisions limit the reach of Part III. Three saving clauses protect particular laws, and three more articles let Parliament adjust the rights for special situations.

• Article 31A: Saves laws for the acquisition of estates and similar purposes.
• Article 31B: Validates the Acts and Regulations placed in the Ninth Schedule.
• Article 31C: Saves laws that give effect to certain Directive Principles.
• Article 33: Lets Parliament restrict or abrogate the rights of the armed forces, para-military forces, police and intelligence agencies.
• Article 34: Allows restrictions while martial law is in force in an area, which is different from a National Emergency.
• Article 35: Reserves to Parliament, not the State Legislatures, the laws needed to give effect to certain rights, so that they are uniform across India.

Article 31B is the widest of the saving clauses, because it shields a law placed in the Ninth Schedule from every Fundamental Right. In I. R. Coelho v. State of Tamil Nadu, decided in January 2007, the Supreme Court held that there can be no blanket immunity: laws added to the Ninth Schedule after 24 April 1973, the date of the Kesavananda Bharati judgment, can be challenged if they violate Articles 14, 15, 19 and 21 or the basic structure.

Article 12: Definition of State

Article 12 of Indian Constitution: Who Counts as the State

Most Fundamental Rights are claims against the State, so Part III must say who the State is. Article 12 does so for Parts III and IV: unless the context otherwise requires, the State includes the Government and Parliament of India, the Government and the Legislature of each State, and all local or other authorities within the territory of India or under the control of the Government of India.

1. The Union executive and legislature, that is, the Government and Parliament of India.
2. The executive and legislature of each State.
3. Local authorities such as municipalities, panchayats, district boards and improvement trusts.
4. Other authorities, meaning statutory or non-statutory bodies such as LIC, ONGC and SAIL.

The definition is drawn wide on purpose. For most rights, only an action of the State, or of an agency that counts as the State, can be challenged as a violation of a Fundamental Right. Article 13(2) uses the same definition when it forbids the State to make a law that takes away the rights.

Other Authorities Under Article 12: From Ejusdem Generis to the Instrumentality Test

The phrase "other authorities" has been read more widely over time. The courts first read it narrowly, then brought in every statutory body, and finally asked whether a body is in substance an arm of the government.

• University of Madras v. Santa Bai (1954): The Madras High Court applied the rule of ejusdem generis (things of the same kind) and held that other authorities must be like the governments and legislatures named before them, so a university was not the State.
• Rajasthan State Electricity Board v. Mohan Lal (1967): The Supreme Court rejected that rule and held that every body created by a statute and given powers is an other authority, whether its work is sovereign or commercial.
• Sukhdev Singh v. Bhagatram (1975): Statutory corporations such as LIC, ONGC and the Industrial Finance Corporation are the State, because they make binding rules for their employees.
• Ramana Dayaram Shetty v. International Airport Authority (1979): Justice P. N. Bhagwati laid down the instrumentality or agency test, under which even a registered society or government company is the State if it is an agency of the government.

The instrumentality test looks at several indicators, none decisive on its own: whether the State provides the capital, whether it has deep and pervasive control, whether the functions are of public importance or governmental in character, whether a government department was transferred to the body, and whether it enjoys a monopoly conferred or protected by the State.

The Board of Control for Cricket in India shows the test at work. The Supreme Court held in Zee Telefilms (2005) that the BCCI is not the State: it is autonomous, not financially dependent on the government, and not under deep and pervasive control. Because it performs a public duty in selecting the national team, it is still answerable to the High Courts under Article 226, but a petition against it cannot be filed under Article 32.

Article 13: Laws Inconsistent With Fundamental Rights

Article 13 of Indian Constitution: Old Laws, New Laws and Judicial Review

Article 13 makes the Fundamental Rights superior to ordinary law. It deals separately with laws already in force when the Constitution began and with laws made afterwards, and it is the clearest statement in the Constitution of the power of judicial review.

• Article 13(1): Laws in force before 26 January 1950 are void to the extent that they are inconsistent with Part III.
• Article 13(2): The State shall not make any law that takes away or abridges these rights; a law made in contravention is void to the extent of the contravention.
• Article 13(3): Defines “law” and “laws in force” for the article.
• Article 13(4): Inserted by the 24th Amendment of 1971, it says that nothing in Article 13 applies to an amendment made under Article 368.

The power to declare a law void under Article 13 belongs to the Supreme Court under Article 32 and to the High Courts under Article 226. That is why judicial review in India rests on Article 13 together with Articles 32 and 226.

Law Under Article 13(3): Ordinances, Rules, Bye-laws and Custom

Article 13(3)(a) gives the word law a wide meaning, so that rights cannot be evaded by acting through some other instrument. Any of the following can be struck down for violating a Fundamental Right.

1. Permanent laws made by Parliament or the State Legislatures.
2. Temporary laws, that is, Ordinances issued by the President or the Governors.
3. Delegated legislation such as orders, bye-laws, rules, regulations and notifications.
4. Custom or usage having the force of law.

Ordinances show why this matters. An Ordinance has the force of an Act of Parliament: it may modify or repeal an Act and, like any other law, may come into force from a back date. But because it is law under Article 13, it is bound by the same limits as an Act and cannot abridge or take away a Fundamental Right.

Doctrine of Eclipse and Doctrine of Severability

Two doctrines explain what "void to the extent of the inconsistency" means in practice. Both follow from the words of Article 13 itself.

The doctrine of eclipse applies to laws in force before the Constitution. A pre-constitutional law that conflicts with a Fundamental Right is not wiped out; its conflicting part is overshadowed by the right and becomes ineffective. If the Constitution is later amended so that the conflict ends, the eclipse is removed and the law operates again. A law made after the Constitution is different: one that violates Part III is void from the start, so there is nothing for an amendment to revive.

The doctrine of severability follows from the words "to the extent of". When only part of a law is inconsistent with Part III and that part can be separated from the rest, the court strikes down only the inconsistent part and lets the remainder stand. The whole law falls only when the bad part cannot be separated.

Is a Constitutional Amendment Law? Article 13(4) and the Basic Structure

The hardest question under Article 13 was whether Parliament could amend the Fundamental Rights themselves. If an amendment is a law, Article 13(2) would make any amendment that abridges a right void. The Supreme Court answered the question three different ways before it settled.

• Shankari Prasad (1951): Upholding the First Amendment, the Court held that law in Article 13 means only ordinary law, so Parliament can amend Fundamental Rights under Article 368.
• Golaknath (1967): The Court reversed itself, gave the rights a transcendental and immutable position, and held that an amendment is law under Article 13 and void if it abridges them.
• 24th Amendment (1971): Parliament added Article 13(4) and changed Article 368 to declare that an amendment is not law under Article 13.
• Kesavananda Bharati (1973): The Court upheld the 24th Amendment but held that Parliament cannot alter the basic structure, so a right that is part of that structure cannot be taken away.
• 42nd Amendment (1976): Parliament amended Article 368 again to declare that there is no limit on its constituent power and that no amendment can be questioned in any court.
• Minerva Mills (1980): The Court struck down the clauses of the 42nd Amendment that tried to exclude amendments from review, holding judicial review itself to be part of the basic structure.

The doctrine has its critics. The Constitution does not list its basic features, the courts have never defined them exhaustively, and only the judiciary decides what belongs, so critics see unelected judges setting limits on an elected Parliament. The Court's reply in Minerva Mills was that a limited amending power is itself a basic feature: the donee of a limited power cannot convert it into an unlimited one.

The result is that Article 13(4) is valid, but amendments are still tested against the basic structure. The doctrine is traced in full on the page on judicial review and the basic structure.

Significance and Criticism of Fundamental Rights

Significance of Fundamental Rights in Indian Democracy

The Fundamental Rights are the bedrock of democracy in India. They give the individual a shield against the majority of the day, protect minorities and weaker sections, and lay the foundation of social equality and social justice. By limiting what the government may do, they make the rule of law real rather than formal.

• They are a strong bulwark of individual liberty and of the dignity of the individual.
• They strengthen the secular character of the State and protect the interests of minorities.
• They check any claim of the government to absolute authority.
• They let people take part in the political and administrative process with confidence.

Criticism of Fundamental Rights: Limitations, Emergency and Clarity

Critics have found several weaknesses in Part III. Most of them concern how far the rights can be limited.

• Excessive limitations: So many exceptions qualify the rights that Jaspat Roy Kapoor suggested renaming the chapter as limitations on Fundamental Rights.
• No social and economic rights: The list is mainly political and leaves out the right to work, social security and rest.
• Vague wording: Terms such as public order and reasonable restriction are not defined, and Sir Ivor Jennings called the Constitution a paradise for lawyers.
• No permanency: Parliament can curtail them by amendment, as the abolition of the right to property in 1978 showed.
• Suspension and detention: Their suspension in an Emergency and preventive detention under Article 22 weaken them, and the judicial remedy is expensive for the poor.

B. R. Ambedkar answered the first criticism in the Constituent Assembly on 4 November 1948. Critics said the exceptions had eaten up the rights, and that rights are real only if absolute, as in the American Bill of Rights. He replied that the rights in America are not absolute either: the United States Supreme Court invented the doctrine of police power to uphold limits on them, so the difference is one of form, not of substance.

The courts have answered some of these points over the years. The basic structure doctrine limits amendment, the 44th Amendment protected Articles 20 and 21 in an Emergency, and public interest litigation lets anyone go to court on behalf of people who cannot afford to go themselves.

Difference Between Fundamental Rights and DPSP, and Rights Outside Part III

Part III sits beside two other parts that speak about rights and duties. The Directive Principles of State Policy in Part IV are instructions to the State that the courts cannot enforce, and the Fundamental Duties in Part IVA are obligations of citizens. Part III alone is justiciable.

Some rights are justiciable but lie outside Part III. They are constitutional or legal rights, enforced through the High Courts and ordinary law rather than through Article 32.

• Article 265: No tax shall be levied or collected except by authority of law.
• Article 300A: No person shall be deprived of property save by authority of law.
• Article 301: Trade, commerce and intercourse throughout India shall be free.
• Article 326: Elections to the Lok Sabha and the Legislative Assemblies on the basis of adult suffrage.

Sources and Further Reading

• Legislative Department, Ministry of Law and Justice: The Constitution of India
• NCERT: Indian Constitution at Work, Class 11, Chapter 2, Rights in the Indian Constitution
• Supreme Court of India: In Re Section 6A of the Citizenship Act, judgment of 17 October 2024
• Supreme Court of India: Property Owners Association v. State of Maharashtra, judgment of 5 November 2024
• Constituent Assembly Debates, Volume VII: B. R. Ambedkar introducing the Draft Constitution, 4 November 1948
• United Nations: Universal Declaration of Human Rights
• Wikipedia: Fundamental rights in India
• Wikipedia: Basic structure doctrine
• Wikipedia: Article 12 of the Constitution of India
• Wikipedia: Nehru Report
• Wikipedia: Golaknath v. State of Punjab
• Wikipedia: Kesavananda Bharati v. State of Kerala
• Wikipedia: Twenty-fourth Amendment of the Constitution of India
• Wikipedia: Minerva Mills v. Union of India
• Wikipedia: Ninth Schedule to the Constitution of India