Fundamental Rights: Article12-35 (Part-3) of Indian Constitution

What is Fundamental Rights?

Fundamental Rights are claims of an individual necessary to ensure one’s happiness, without
compromising the happiness of others.
The idea of Fundamental rights as a claim to a life of freedom and dignity, irrespective of
one’s caste, race, birth, class, gender, etc., became influential in the freedom struggle
against British colonial rule. The struggle sought to bring in conditions where the Indian
people could be assured of these rights by virtue of being human. These aspirations are
reflected in the fundamental rights enshrined in our Constitution.

Fundamental Rights Vs Ordinary Rights:

Ordinary rights are protected and enforced by ordinary law and, therefore, can be changed
or repealed by the legislature through the ordinary law-making process.
On the other hand, fundamental rights are protected and guaranteed by the Constitution
of a State and, therefore, cannot be altered by any process except for the amending of the
Constitution itself.
Fundamental Rights of Indian Constitution, are detailed in the Part III of the Constitution
(Article 12 to 35).
The fundamental rights enshrined in the Constitution seek to bring into practice
the principles of human rights, assuring each individual a life of dignity. They set the
parameters of obligations and responsibilities that a modern state owes to its citizens.

1. The term “fundamental” implies that these rights are so significant that the
Constitution specifically lists them and makes provisions to safeguard them. The
Fundamental Rights of Indian Constitution are so crucial that the Constitution itself
ensures that they are not infringed by the government.
2. The object behind the inclusion of fundamental rights in the Constitution is to establish
a “limited government. a government in which the absolute power is not vested in any
of the organs of the State.

Historical Background of Fundamental Rights

• ‘Magna Carta’, the charter of rights issued by the King of England in 1215, is considered
the first written document pertaining to the Fundamental rights of citizens.
• Other sources of fundamental rights are:
1. The Bill of Rights, 1869, from England;
2. The United States Bill of Rights, 1787;
3. The Declaration of the Rights of Man, 1789 from France.
• In India, the evolution of fundamental rights can be seen in the 19 th century with
the creation of the Indian National Congress, which sought the end of the ‘rule of
 difference’, which means that while the rule of law and the rights to liberty and equality
were assured within Britain, the same principles did not apply in the colonies.
• Similar demands came in the form of the ‘Constitution of India Bill’ or the
Swaraj Bill in 1895, which talked about the right to speech, the right to franchise, Free
State education, etc.
• In the early twentieth century, several resolutions were passed, and committee reports
were made demanding these rights. For instance, The Commonwealth Bill of India Bill
1925, drafted by Annie Besant, the Nehru Report of 1928, the Sapru Report of
1945 and the sub-committee of the constituent assembly on Fundamental rights.

Features of Fundamental Rights of Indian Constitution

1. Judiciary as protector of Fundamental rights of India:

o The judiciary has the authority and responsibility to protect fundamental rights of
Indian Constitution from violations by the executive or the legislature.
o It can nullify any executive decision or legislative action if it violates or goes
beyond the ambit of the Constitution (Ultra vires).
o This is what makes fundamental rights fundamental.
2. Justiciable Rights: The Indian Constitution allows a person to move directly to the
Supreme Court to reinforce fundamental rights when violated or restricted.
3. Fundamental rights are not absolute:
o Most fundamental rights are qualified rights rather than unlimited rights.
These rights are subject to reasonable restrictions mentioned in the
Constitution itself. It strikes a balance between individual rights and social control.
o Further, they can be amended by the Parliament, although without affecting the
basic structure of the Constitution.
4. Differentiates between citizens and aliens: Some fundamental rights are exclusive
to the citizens, while others are available to citizens, foreigners or legal entities like
companies
5. Differentiates between State and individuals: Most of these rights are available
against the State’s action with few exceptions, like those against private individuals.
When the rights that are available against the state actions only are violated by
individuals, then there is no constitutional remedy, but only ordinary legal remedies.
6. Positive and Negative nature: While some rights confer certain privileges on the
person, some are negative in character and places limitation on the authority of states.
o For example, Article 21 says that “state cannot deprive a person of his life and
personal liberty except by the procedure established by law”. This puts a limit on
the State and thus is a negative right.
o The right to education under Article 21A is a positive right which confers
certain privileges on citizens.
7. Status during Emergency: Except for Articles 20 and 21, fundamental rights can be
suspended during the operation of a national emergency. Further, the six rights
guaranteed under Article 19 can be suspended only during external emergencies.
 8. Laws needed for enforcement: Most fundamental rights are directly enforceable and
do not need specific law. But, some of them require a law to enforce them, and such
laws can only be enacted by the Parliament (Article 35).
9. Limitations on Fundamental Rights:
o The following provisions limit the scope of the fundamental rights:
1. Article 31A: Saving of laws provided for the acquisition of estates against
the right to property
2. Article 31B: Validation of certain laws included in the 9th schedule that
may go against certain rights.
3. Article 31C: Saving of laws for giving effect to Directive Principles.
o Application on armed forces, paramilitary, police forces, intelligence
agencies and other such services can be limited or abrogated by the
Parliament (Article 33).
o Application is restricted during Martial law (military rule) (Article 34).

Article 12 – Definition of State

• Since fundamental rights of India are supposed to check the absolute power of the State,
they will be enforced against the State. Hence, there needs to be clarity regarding what
constitutes the State. The definition of State is given in Part III, Article 12 of the
Constitution. According to it, the definition of State includes:
1. The Government and the Parliament of India – which would include legislative
and executive organs of the union;
2. The Government and Legislature of each State – which would include
legislative and executive organs of the State;
3. Local Authorities within the territory of India – such as a zilla
panchayat, municipalities, the District Boards, Port Trusts, etc.;
4. Other authorities within the territory of India and under the control of the
government, statutory or non-statutory authorities like LIC, ONGC, etc.
• As we can see, the State has been defined in a wider sense to include all state agencies
that can be challenged in court on the grounds of violation of fundamental rights.
Supreme Court, in a judgement, has further widened the definition by including even
a private body if it works as an instrument of the State.
• Article 12 does not define ‘judiciary’ in any particular way. The judiciary as the State
can be interpreted for narrow purposes only. Its functions can be categorised
into judicial and non-judicial. Only non-judicial functions, such as administrative
functions, can be challenged on the grounds of the violation of fundamental rights.

Article 13 – Laws Inconsistent with Fundamental Rights

• Article 13 of Indian Constitution addresses all laws that are inconsistent with
fundamental rights or derogate them.According to it, all such provisions of laws in
force before the commencement of this Constitution that are not consistent with the
provisions of Part III of the Constitution shall become void.
 • Further, the Parliament and State legislatures are prohibited from making any law which
takes way fundamental right.
• Hence, it forms the basis of the judicial review doctrine and aids the court and
citizens in checking the misuse of powers by the legislature and executive.

What constitutes as a law?

The term ‘Law’, which cannot be inconsistent with Part III of the constitution covers the
following types of laws:

1. Permanent laws that are enacted by the Parliament of India or legislatures of the states.
2. Temporary laws, like ordinances by the President or the governors of the State.
3. Statutory instruments like delegated legislation, i.e. executive legislation, as
regulation or notification, order, rule or by-law.
4. Non-legislative sources of law, i.e. customs with the force of law.
Can Constitutional amendments be Judicially reviewed if they are inconsistent with the
constitution?
• Article 13 does not list Constitutional amendments as laws; hence, for a long time, it
was believed that they cannot be challenged and that the Parliament is fully competent
to make any amendment. [Shankari Prasad Case, 1951]
• This led to several changes even in Part III of the Constitution. A very concerned
Supreme Court, then in Golaknath Case, 1967 stated, that the Parliament is not a
Constituent Assembly. A Constitutional amendment is a legislative process and comes
under the definition of ‘Law’ in Article 13 of Indian Constitution. Thus, all constitutional
amendments must be consistent with Part III (Fundamental Rights). And therefore,
fundamental Rights were “Transcendental and Immutable”.F
• 24th Amendment Act, 1971 inserted an additional Clause in Article 13(clause 13(4))
that constitutional amendment should not be covered in the definition of ‘Law’. This was
done to prevent the amendments in Part III of the Constitution from being challenged in
the Supreme Court on the argument of ‘inconsistency’ with Part III.
• In the Kesavanand Bharti case (1973), the Supreme Court accepted the 24th
amendment, once again making it competent for the Parliament to amend the
fundamental Right. However, these amendments could not violate the ‘Basic
structure’ of the Constitution and, therefore, can be challenged in the Supreme Court.

6 Fundamental Rights of Indian Constitution

Originally, the Indian Constitution contained seven fundamental rights, but the
44th Constitutional Amendment Act 1978 abolished the Right to property (Article 31) from
the list of fundamental rights. Here are 6 Fundamental Rights of India
1. Right to Equality (Articles 14-18)
2. Right to Freedom (Articles 19-22)
3. Right Against Exploitation (Articles 23-24)
4. Right to Freedom of Religion (Articles 25-28)
5. Cultural and Educational Rights (Articles 29-30)
6. Rights to Constitutional Remedies (Articles 32)
Lets discuss all 6 Fundamental rights of India in detail:
Articles 14 to 18 deal with different aspects of equality. It ensures the rights envisaged in the
Preamble, that ‘equality of status and opportunity’ shall be given to every citizen.

1. Article 14 – Equality Before Law

The State shall not deny anyone ‘equality before the law‘ or ‘equal protection of laws‘
within India on the grounds based on race, religion, sex, caste or place of birth.

o This right is conferred to all, whether citizens or foreigners.

o While it prohibits class legislation (discrimination by conferring certain
privileges to a class), it allows reasonable classification of persons and objects,
provided it is not arbitrary, artificial or evasive.

Equality before Law:

o Origin – British
1. It is a negative concept that means no person is above the law.
2. Absence of special privileges – Every person is subject to the jurisdiction
of courts, irrespective of their social status.
3. It is an element of the concept of ‘Rule of Law’.

Equal protection of the law:

▪ Origin – American Constitution

▪ It is a positive concept that means equal treatment under similar
circumstances.
▪ There could be discrimination between the groups but not within the
groups. A Welfare state requires a positive bias in favour of the less
privileged (treating unequals unequally).

Rule of Law
AV Dicey theorises the concept of “Rule of Law”. It implies three things:

1. Absence of arbitrary power, i.e. no man can be punished except for a breach of the
law.
2. Equality before the law, i.e. equal subjection of every citizen to the ordinary law of
the land.
3. The Primacy of the rights of the individuals, i.e. the Constitution, is the result of
the individual’s rights rather than the Constitution being the source of the individual’s
rights (This aspect does not apply to the Indian Constitution).

The SC held that the Rule of Law, as included in Article 14, is a ‘basic feature’ of the
Constitution.
 Exceptions to Equality (Article 361)
The President and the Governor enjoy the following immunities:

1. They are not answerable to any court for the exercise of their power and duties in
office.
2. They are immune from criminal proceedings during their term of office.
3. During their term in office, no process for imprisonment or arrest can be issued by
any court.
4. A civil proceeding can be instituted after giving two months’ notice.

2. Article 15 – Prohibition of Discrimination

Rights in Article 15 of Indian Constitution are available only to the citizens of India.

1. Article 15(1) prohibits the State from discriminating based only on religion,
race, caste, sex, or place of birth.
▪ Thus, it “prohibits class legislation”. The clause “based only on” means
that the State cannot legislate solely to discriminate against or in favour of a
class (i.e. particular religion, race, caste, sex, etc.).
▪ But then, how can the State provide protection and schemes for particular
classes?
▪ The answer is that the Constitution allows discrimination if it is based on
additional criteria other than the above-mentioned criteria.
▪ For example, protection for a particular caste or sex can be provided if it is
based on additional educational or economic criteria. But discrimination
only based on caste or sex is not allowed.
▪ This is known as “Classification for the purpose of Legislation”, which
our Constitution allows.
2. Article 15(2) Prohibits discrimination or restriction in terms of access to shops,
hotels, public restaurants, places of public entertainment, or the use of tanks,
wells, roads, and other public places maintained wholly or partially out of the State
Funds or dedicated to the use of the general public.

However, there are three exceptions to this general rule of non-discrimination:

3. Article 15(3): The State can make special provisions for women and children.
For example, the reservation of seats in local bodies for women or the provision of
free education for children (Article 21A).
4. Article 15(4): The State can make special provisions for socially/educationally
backward classes, including the Scheduled Castes and Scheduled Tribes.
5. Article 15(5): The State can make special provisions for the advancement of
any socially and educationally backward classes (SEBCs) regarding their
admission to educational institutions, including private institutions, whether
unaided or aided by the State, except the minority educational institutions.
This provision was added by the 93rd Amendment Act 2005.
The Parliament enacted the Central Educational Institutions (Reservation in Admission)
Act, 2006, to bring this provision into effect.

o It provided a 27% quota for candidates for people of Other Backward Classes
(OBCs) in all central higher educational institutions.
o In 2008, the Supreme Court upheld the validity of this act but directed the Central
Government to leave out the “creamy layer” among the OBCs while implementing
the law.

Creamy Layer
Creamy layer is a term used for the educationally and economically forward
members of the OBCs who are not eligible for government-sponsored professional
and educational benefits.
6. Article 15(6) allows the government to reserve up to 10% of all government
appointments for the Economically weaker sections (EWS).

3. Article 16 – Equality of Opportunity in Public Employment.

Article 16 of Indian Constitution guarantees equality of opportunity in public employment,
which forms the basis of reservations in government jobs in India.

o Article 16(1) provides equality of opportunity for all citizens in employment or

appointment to any office under the State.
o Article 16(2) holds that no citizen shall, only on the grounds based on caste,
race, religion, sex, descent, residence, or place of birth, be discriminated against or
be ineligible for employment for any office under the State.
1. However, there are exceptions:
1. Article 16(3) holds that the Parliament may, by law, provide for
residents as a qualification for certain jobs.
2. Article 16(4) holds that the State can reserve posts for the Scheduled
Castes and Scheduled Tribes or any backward classes of citizens, which, in
the State’s opinion, are not adequately represented in the services under the
State.
Mandal Commission
In 1979, the Second Backwards Classes Commission was set up under the chairmanship
of B P Mandal, under Article 340, to investigate the conditions of the Socially and
Educationally Backward Classes to suggest measures for their advancement.
In its 1980 report, the Commission submitted that as many as 3743 castes (excluding
SCs/STs), constituting 52% of India’s population, were socially and educationally
backwards. It recommended 27% reservation in government jobs for this class.
This was accepted by the VP Singh Government in 1990, to which the Narasimha Rao
Government introduced an “economic Criteria”. Additionally, economically weaker sections
(EWS) were provided with an additional 10% reservation.
This was immediately challenged in the Supreme Court.
 In the Indra Sawhney/Mandal Case, 1992, the Supreme Court checked the scope and
extent of Article 16(4).

1. It upheld the constitutional legality of the provisions of 27% reservations for

the OBCs with certain conditions, including the – Exclusion of advanced sections
(Creamy layer) among OBCs.
2. It rejected the 10% reservations for the EWS and stated that the reserved quota
should never exceed 50% except in extraordinary conditions.
3. No reservation in promotions. However, a government can introduce such
reservations among SCs/STs if it can produce quantifiable data for backwardness. (M
Nagarajan vs Union of India case, 2006).
4. Unfilled vacancies from the reserved category could be carried forward only up to
3 years as separate vacancies under the category. After that, they were to be filled
afresh.
5. A permanent statutory body is to be established to examine complaints of over or
under-inclusion in the list of OBCs. [National Commission for Backward Classes was
established in 1993. The 102nd Constitutional Amendment Act 2018 gave it a
constitutional status under Article 338B].
However, some of the limitations put in by the Supreme Court in the Mandal Commission case
were overridden by Constitutional amendments:
1. Article 16 (4A) – Added by the 77th Amendment Act, 1995, enabling the
Parliament to provide reservations for SCs and STs in promotions. This
simply meant that even after the judgement of the Mandal case, the
reservation in promotion in government jobs should continue.
2. Article 16 (4B) – Added by the 81st Amendment Act, 2000 to fill the
backlog vacancies that remained vacant due to the unavailability of eligible
candidates. It allows the State to consider the unfilled vacancies as a
separate class of vacancies, thus ending the 50% ceiling on the backlog
vacancies.
3. Article 15(6): Added by the 103rd Amendment Act, 2019, allowing the
government to reserve up to 10% of all government appointments for
the Economically weaker sections (EWS). Thus pushing the total
reservations in India above the 50% limit.
 EWS Reservation
The Parliament amended the Constitution of India (103rd Amendment) Act, 2019, to
provide a 10% reservation in government jobs and education in India for a section of the
General category candidates.
Introduction of Articles 15 (6) and 16 (6): The Amendment introduced economic
reservation by amending Articles 15 and 16. It added Articles 15 (6) and 16 (6) to allow
reservation in the unreserved category for the economically backward.

1. Article 15(6): For EWS, up to 10% of seats can be reserved for admission to
educational institutions. Such reservations will not apply to educational institutions
maintained by minorities.
2. Article 16(6): It allows the government to reserve up to 10% of all government
appointments for the EWS.

The Supreme Court validated the 103rd Constitutional Amendment Act. According to the
court, it does not cause damage in any manner to the basic structure of the Constitution, and
the Exclusion of the reserved categories from the EWS quota does not violate the equality
code.
o Article 16 (5) provides that the law can provide that the incumbent of an office
related to a denominational or religious institution or a member of its governing
body should come from that particular denomination or religion. For example –
The head of a temple committee must be a Hindu.

4. Article 17 – Abolition of Untouchability

The article abolishes Untouchability, forbids its practice in any form, and is
available not only against the government but also against private individuals.

o Article 17 is absolute in nature, which means it cannot be violated under any

circumstances.
o It states that “Untouchability” shall be an offence punishable by law. Thus, the
State has a legal obligation to make the appropriate efforts to ensure it is not
violated.

Laws to End Untouchability

1. The Untouchability Offences Act of 1955.

2. The Untouchability (Offences) Act of 1955 was comprehensively amended
in 1976 and renamed to magnify the scope and make penal provisions
more stringent.
3. The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities)
Act of 1989.
o However, the meaning of Untouchability is neither stated in the Constitution nor
in any of the laws.
 o In this matter, the Supreme Court has explained that the term untouchability
should not be taken in the literal sense and should be taken as the “Practice of
Untouchability” as it developed historically in India. It is a practice in which:
1. Certain sections of people are denied entry into places of worship where
others are allowed.
2. Entry into public places like Hospitals, schools, hostels, etc., is denied.
3. People of certain sections are denied certain services or goods at the same
terms and conditions at which they are available to others.

5. Article 18 – Abolition of Titles

This article deals with the abolition of titles to end artificial distinction in social status among
people.

o Article 18(1): No title, not being an academic or a military distinction, will be

conferred by the State.
o Article 18(2): No citizen of India will accept any title from any of the foreign
States.
o Article 18(3): A non-citizen of India will not, while he holds any office of the
profit or trust under the State, except without the President’s consent, any title
from any foreign State.
o Article 18(4): Any person holding any office of the profit or trust under the
State shall not, without the consent of the President, accept any of the presents,
emolument, or the office of any kind from or under any foreign States.

Difference between Awards and Titles:

o While awards are granted based on the job done by the person without
discrimination based on religion, caste, sex, or race, Britishers bestowed titles to
particular communities before independence to sow discord and disintegration
among the people.
o Although the prizes are not forbidden, they cannot be used as a prefix or
suffix. All honours given for outstanding achievements in the sphere of
academia (Doctor, Engineer, etc.) are not included in the titles.
o The Supreme Court, in 1996, upheld the validity of National
awards like Bharat Ratna, as these awards are not equivalent to titles as per
Article 18, which only prohibits hereditary titles of nobility.
o The Government of India instituted four National awards in 1954: the Bharat
Ratna, Padma Vibhushan, Padma Bhushan, and Padma Shri for outstanding
service in any discipline, including public service. They are announced yearly on
Republic Day except for brief interruptions from 1978 to 1979 and 1993 to
1997.
2. Right to Freedom
The right to freedom is given in Articles 19 to 22. This is not an absolute Fundamental right
and is subject to reasonable restrictions.

1. Article 19 – Protection of certain rights

Article 19(1) of the Indian Constitution provides six freedoms to Indian citizens, namely:

a. Freedom of speech and expression:

o It implies that citizens have the right to express their views, opinions, beliefs and
convictions freely through speech, writing, painting, printing, etc.
o The Supreme Court has held the following activities as speech and expression
under Article 19:
1. Right to propagate other’s view
2. Freedom of press
3. Right against the imposition of pre-censorship on a newspaper
4. Right to telecast
5. Freedom of commercial advertisement
6. Freedom of Silence (Negative right)
7. Right against telephone tapping
8. Right against Bundh called by a political party or organisation (Negative
right)
9. Right to demonstration or picketing (but not the right to strike)
o Grounds of reasonable restrictions:
1. Sovereignty and Integrity of India
2. Security of the State
3. Friendly relations with a foreign state
4. Public order
5. Decency or Morality
6. Contempt of court, defamation
7. Incitement to an offence

b. Freedom to assemble peacefully and without arms;

o This right includes taking out processions and holding public meetings and
demonstrations.
o These rights cannot be exercised on public land.
o This right does not include the right to strike (It is regulated by industrial laws).
o Grounds of reasonable restrictions:
1. Sovereignty and integrity of India
2. Public order (Includes maintenance of traffic)
c. Freedom to form associations, unions or cooperative societies

o It provides the right to form associations, unions, cooperative societies, political

parties, companies, societies, clubs, partnership firms, etc.
o It also covers the negative right, i.e., the right not to join an association or union.
o However, the right to obtain recognition of the association or union is not a
fundamental right.
o Grounds for reasonable restrictions:
1. Sovereignty and integrity of India
2. Public order and morality

d. Freedom to move freely throughout the Indian territory;

o It involves the right of intra-state and inter-state movement.

o The right to move outside of the country is dealt with by Article 21.
o The Supreme Court has ruled that the freedom of movement of prostitutes
can be confined on the grounds of public health and morality.
o Grounds for reasonable restriction:
1. The interest of the general public
2. Protection of interest of any scheduled Tribe

e. The Freedom to reside and settle in any part of India,

1. This right includes:

1. The right to reside in any part of the country, which means to stay at any
place temporarily,
• The right to settle in any part of the country (to set up a home/domicile).
o The Supreme Court has held that certain areas can be restricted for habitual
offenders and prostitutes.
o Grounds for reasonable restrictions:
1. Interests of the general public
2. Protection of interests of any scheduled tribes.

f. [Right to Property has been repealed by the 44th Amendment]

g. Freedom to practice any profession or to carry on any occupation, business or trade.

o The scope of this right is wide and covers all means of livelihood.
o This right does not include illicit trade or immoral practices. The State can
regulate it or completely prohibit it.
o However, the State can impose certain conditions, such as:
▪ Requirement of professional and technical qualification
▪ Exclusion of citizens from any trade, business, industry or service carried
out by the state or corporations controlled by the State (State monopoly in
such conditions is justified).
o Grounds of reasonable restrictions: The interest of the general public.
2. Article 20 – Protection against unlawful conviction

It provides protection in respect of conviction for offences.

o Article 20 protects against arbitrary and excessive punishment of an accused

person, whether a citizen, foreigner, or legal person like a corporation or a
company.
o It contains 3 provisions:

1. No ex-post-facto law: It means no person shall be (i) convicted of any

crime except for violating a law in force at the time of the commencement of
the act, nor (ii) subjected to a penalty more than that prescribed by the law
in force at the time of the commencement of the act.
2. No double jeopardy: A person shall be prosecuted and punished for the
same offence not more than once.
3. No self-incrimination: A person accused of any offence cannot be
compelled to be a witness against himself.

Ex-Post-Facto Law: An ex-post-facto law imposes penalties retrospectively, i.e.

upon acts that have already been done or which increase the penalties for such
laws.
The protection against double jeopardy is available only in a judicial tribunal
or a court of law. It means it is not available in proceedings before administrative
or departmental authorities as they are not judicial.
The protection against self-incrimination extends to both documentary
evidence and oral evidence. This only applies to civil proceedings.

3. Article 21 – Right to Life

Article 21 of Indian Constitution deals with the protection of life and personal liberty.

o Any person shall not be deprived of their life or individual liberty except according
to a procedure established by law.
o The right to life in Article 21 of the Indian Constitution does not mean animal
existence. It guarantees the right to a dignified life. Some rights that the Supreme
Court has declared under Article 21 include:
1. Right to live with human dignity.
2. Right to a decent environment and protection
3. against hazardous industries.
4. Right to privacy.
5. Right to livelihood.
6. Right to health.
7. Right to shelter.
8. Right to free education up to 14 years of age.
9. Right to a speedy trial.
 10. Right against solitary confinement.
11. Right to free legal aid.
12. Right against handcuffing
13. Right against inhuman treatment.
14. Right against delayed execution.
15. Right to travel abroad.
16. Right against bonded labour.
17. Right against custodial harassment.
18. Right to a fair trial.
19. Right to medical treatment in a government hospital.
20. Right of the prisoner to have necessities of life
21. Right to emergency medical aid.
22. Right of not to be driven out of a state.
23. Right of women to be treated with dignity and decency.
24. Right against public hanging.
25. Right to information.
26. Right to hearing.
27. Right to sleep.
28. Right of appeal from a judgment of conviction.
29. Right to social protection and security of the family.
30. Right to economic and social justice and empowerment.
31. Right to electricity.
32. Right to appropriate life insurance policy.
33. Right to reputation.
34. Right to freedom from noise pollution
35. Right against bar fetters.
o Important Cases Related to Article 21 of the Constitution
1. AK Gopalan Case, 1951: The Supreme Court, in this case, has narrowly
interpreted Article 21. It said that the protection under Article 21 is
available not from arbitrary legislative action but only against arbitrary
executive action. It means that the State can take the rights of a person
available in Article 21 based on a law (Procedure established by law).
2. Maneka Gandhi case, 1978: In this case, the Supreme Court overruled
its judgment of the AK Gopalan case by taking a broader interpretation
of Article 21. It ruled that a person’s right to life and personal liberty can
be taken back by law on the condition that the procedure prescribed by that
law is fair, just and reasonable (Due process of law). It argued that since
there is an overlapping of rights in Article 19 and 21, the protection
provided in Article 19 (“reasonable” restriction) should apply to Article
21 as well.

Further, it held that Article 21 does not mean animal existence. It held that all those aspects
of life that make a man’s life meaningful, complete, and worth living should be included.
 Procedure Establish by Law v/s Due Process of Law
• The procedure established by law: Article 21 mentions the expression “Procedure
established by Law”, which means the State can deprive the right to life and liberty by
legislative action. If a law is passed by valid procedures, it will be lawful even if it
violates liberty.
• Due process of law: This expression is found in the American Constitution. It
examines both procedural and substantive characteristics of law. It gives protection
against arbitrary executive as well as legislative action. It is based on
the principle of natural justice.
• Maneka Gandhi Case (1978): The Supreme Court implicitly recognised “due
process of law” when it ruled that procedure prescribed by law to deprive the right
to life and liberty should be “fair, just and reasonable”.

4. Article 21A – Right to Education

This article deals with the right to education.

o According to Article 21A, it is the reponsiblity of the State to provide free and
compulsory education to all children of the age of six to fourteen years in
accordance with the law made by the State.
o This article was added to the Constitution by the 86th Constitutional
Amendment of 2002.
o This Amendment was done to give effect to the directive principle given in Article
45. The subject matter of Article 45 has been changed, and now it has provisions
for early childhood care and education up to six years of age.
o To give effect to the provisions, the Right to Education Act 2009 was passed.

5. Article 22 – Protection against Arrest and Detention

It provides protection against arrest and detention in some cases; it also protects people who
have been arrested or detained.
Article 22 consists of two parts: the first deals with ordinary law cases, and the second deals
with preventive detention law cases.

1. Ordinary Law: The first part provides protection to those who have been
arrested under ordinary laws. This protection is not available to aliens. The
following rights have been conferred under this provision:
▪ The right to being informed about the grounds of arrest as soon as
possible;
▪ The right to consult with and be represented by a lawyer of choice;
▪ Every person who is arrested and detained in custody shall be produced
before the magistrate within twenty-four hours of such arrest, excluding
travel time.
▪ No such person shall be detained in custody beyond 24 hours without the
magistrate’s authority.
 2. Preventive Detention Law: The second part of Article 22 protects people who
have been arrested or detained under a preventive detention law.
This protection is available to both citizens and aliens and includes the
following provisions:
▪ A person’s detention cannot be extended beyond three months unless an
advisory board reports sufficient cause for such an extension. The Advisory
board will be made up of high court judges.
▪ The detained person should be informed of the reasons for his/her
detention. However, facts deemed in the public interest must not be
disclosed.
▪ The detention should be allowed to appeal against the detention order.

Preventive and Punitive Detention

• Preventive detention means the detention of a person who has yet to commit a
crime but seems a possible threat to law and order.
• Punitive detention punishes a person for an offence committed after a court trial
and conviction.
o Article 22 also empowers the Parliament to prescribe:
1. The circumstances and types of cases in which a person can be held for more
than three months under a preventive detention law without seeking the
advice of an advisory board;
2. The maximum period for which a person can be arrested in any class of
cases under a preventive detention law; and
• The procedure to be followed by an advisory board while conducting an inquiry.
o The 44th Amendment Act of 1978 reduced the period of detention without
obtaining an advisory board’s opinion from three to two months. However, the
three-month period remains in effect since the Amendment is yet to be notified.
o Only Parliament and not the state legislatures can make preventive detention
laws in the matters of defence, foreign affairs and security of India. For
example- the National Security Act of 1980.

3. Right against Exploitation

1. Article 23 – Prohibition of Human Traffic

It prohibits forced labour and the trafficking of human beings.

o It prohibits trafficking in human beings and Begar (forced and unpaid labour) and
other types of forced labour. Further, it states that any contravention of this
provision is punishable by the law.
o However, there are certain exceptions under Article 23: The State can
impose compulsory public service in legitimate cases. Of course, in such a case,
the State cannot discriminate based on religion, race, caste, or class.
1. Thus, it would not prevent the State from imposing compulsory recruitment
for public purposes such as military or social services.
 2. The article also does not prohibit forced labour as punishment for convicted
criminals.
1. Laws passed by the Parliament under Article 23 –
1. Suppression of Immoral Traffic in Women and Girls Act of 1956
2. Bonded Labour System (Abolition) Act, 1976

2. Article 24 – Prohibition of Child Labour

Prohibits employment of children in factories.

o No child below the age of fourteen shall be employed in any factory, mine, or other
hazardous employment.
o The prohibition under Article 24 is absolute, and there would be no exception.
o Keeping this in mind, the Supreme Court has directed to take positive steps for the
welfare of such children and improve their quality of life.
1. Laws passed by Parliament related to Article 24 –
1. Factories Act of 1948,
2. The Mines Act of 1952,
3. The Child Labour (Prohibition and Regulation) Act of 1986,
• The Child Labour (Prohibition and Regulation) Amendment Act of 2016 amended
the Child Labour (Prohibition and Regulation) Act of 1986 and renamed the
original act as the Child and Adolescent Labour (Prohibition and Regulation) Act
of 1986.
o Further, Commissions for Protection of Child Rights Act, 2005 was passed to
establish National and State level commissions for the protection of child rights as
well as Children’s court for speedy trials of children-related offences.

4. Right to Freedom of Religion

Secularism is an attitude of impartiality towards all religion and that there is no “state
religion”. In India, it is demonstrated by Articles 25-28.

1. Article 25 – Freedom of Conscience

Article 25 guarantees all citizens the Freedom of conscience and the freedom to profess,
propagate, and practice religion. These rights are available to citizens as well as aliens (non-
citizens).
Freedom of Conscience is restricted only by three factors:

1. Religious freedoms can be limitations on the grounds of:

▪ Public order,
▪ Morality and
▪ Health
2. The State can make laws on those religious matters that are not related to
freedom of conscience. These are the Laws that regulate and restrict any
 economic, financial, secular or political activity associated with the practice of any
religion.
3. State can interfere to make Social Reforms and welfare or opening up
religious institutions of Hindus of a public character to all sections of Hindus.
According to this provision, Hindus are construed as including the people
professing the Sikh, Buddhist or Jain religions, and Hindu institutions shall also be
interpreted according to that.

Freedom of Practice to a religion is also subjected to the above limitations. Thus, if a

religious practice is harmful to public order, health or morality, the State can restrict it.

o Concept of essential religious practice: In order to allow such a religious

practice to exist, it must be a main tenet of the religion. This doctrine was
formulated by the Supreme Court in 1954.
o For example, Sikh people carrying the kirpanshall be considered included in
the profession of Sikhism.
o Similarly, the right to propagate does not include the right to convert since it
will violate freedom of conscience, i.e., the freedom of a person to define their
relation with God.

2. Article 26 – Freedom to Manage Religious Affairs

Individual rights are guaranteed in Article 25, whereas religious denominations or their parts
are protected in Article 26.
This Article states that every religious denomination has the following rights, subject to health,
morality, and public order –

1. The right to form and maintain institutions for charitable and religious intents.
2. The right to manage its affairs in the aspect of religion.
3. The right to acquire movable and immovable property.
4. The right to administer such property as per the law.

Definition of a Religious Group:

o Indian Constitution does not specify religious denominations; court decisions

must be consulted to determine what constitutes a religious denomination.
o In SP Mittal v. Union of India, the Supreme Court established three standards
that a religious group must meet:
1. A group of people who share a shared faith.
2. A common structure.
3. A different name is used for identification.

3. Article 27 – Freedom from payment of taxes

Article 27 of the Constitution prohibits the collection of taxes, the proceeds of which are
directly used to promote and maintain any particular religion/religious denomination.
 o The Constitution of India has given the liberty to promote any religion without
using public tax money.
o This means favouring, patronising, or encouraging one religion over another is
unlawful.
1. This rule merely forbids the imposition of a tax, not a charge.
1. This is because the objective of a charge is to govern the secular
management of religious organisations rather than to promote or sustain
religion.
2. Thus, pilgrims can be charged a fee to provide them with a special service
or safety precautions.
3. Similarly, religious endowments can be charged a fee to cover regulatory
expenses.

4. Article 28 – Freedom as to attendance at religious instruction

The article provides the freedom for people to attend religious instruction in educational
institutions wholly maintained by state funds or receive aid from the State. It also seeks the
guardian’s consent in the case of minors.

o Article 28 specifies four categories of educational institutions:

1. Institutions wholly maintained by the State.
2. Institutions set up under any endowment or trust but administered by the
State.
3. Institutions recognised by the State.
4. Institutions receiving aid from the State.

Following are the freedoms to attend or not to attend religious Instructions:

o For state-run institutions: Article 28 prohibits completely state-run

educational institutions from giving any religious instructions.
o For Trusts/endowments run by the State: the restriction is not applicable if
the educational institution is established under any trust or endowment and is
administered by the State. Thus, religious instruction is possible in BHU or AMU.
o For Institutes recognised/supported by the State: It provides freedom to
attend religious instruction by educational institutions, either recognised by the
State or receiving state funds.

Further, in the case of a minor, guardian consent is needed.

However, this article doesn’t prohibit educational institutions maintained by religious groups,
thus permitting them to disseminate religious instruction.

Indian Concept of Secularism

Right to Freedom of Religion forms the basis of Secularism in India. However, the Indian
concept of secularism is a bit different from the Western concept of secularism.
 Western Model of Secularism: Indian Model of Secularism:
Principle of Principled distance: Religion
Principle of Absolute Distance cannot interfere in the State, but State can
– Religion will not interfere in state interfere in religious matters in order to
matters. Similarly, the State will not ensure that basic human rights are not
interfere in religious matters. violated.
Origin: Western model emerged during
Fight against the oppression of the Origin: Emerge as a solution to religion-
church. Europe’s secularism highlights based caste and gender oppressions, an
the principle of fighting intra-religious endeavour at the heart of our own socially
oppressions. It is a project of civic driven freedom and equality-oriented reform
friendship among religious communities. movements in the 19th century.
Positive right: The state provides protection
to ensure that basic human rights are not
Negative right: Since the State violated. For example, the Indian government
withdraws from the matters of religion. can prohibit Untouchability (Art 17).
Certain restrictions: People have such
No Limitation: Right to maintain their religious rights, but they are subject to public
own culture and educational institute. order, health and Morality. (Article 25 & 26)
Liberal equality in the matters of religion
– The state can allow the religious faith to
Absolute equality in the matters of have some liberty if required by the core
religion – All are required to follow the principles of a faith. For example, Sikhs can
same code irrespective of faith. carry the kirpan.
5. Cultural and Educational Rights

1. Article 29 – Protection of Interests of Minority

It protects the interests of minorities.

o 29(1): Any section of the citizens living in the Indian Territory or any part
thereof having a distinct language, culture or script shall have the right to conserve
o 29(2): Any citizen shall not be denied admission into any educational institution
that the State is maintaining or that institution is receiving aid out of State funds
on grounds based only on caste, religion, race, language or any of them.
o The Supreme Court has ruled that this article applies to all sections of citizens and
not just minorities.
2. Article 30 – Right of Minorities to establish Religious Institution
Under this right, the minority communities were empowered to form and govern their
educational institutions.

o This article is also known as the “Charter of Educational Rights”.

o Article 30(1): It provides all minorities (both religious and linguistic minorities)
the right to establish and administer educational institutions of their choice. It is
available to religious and linguistic minorities only.
o Article 30(2): It provides that, while granting aid to educational institutions, the
State cannot discriminate on the ground that a religious or linguistic group
administers a particular institution.
o 44th Constitutional Amendment Act: If the government has acquired such
institutions, then the government is duly bound to give the appropriate
compensation to the institution. This provision was added to protect the interests
of minorities since the same amendment act had repealed the right to property.
o Unlike Article 29, this article applies only to minorities (religious and
linguistic). However, the Constitution does not define the term “minority”.

Article 31 – Right to Property

In the original Constitution, the right to property was one of the seven fundamental rights
provided that any person shall not be deprived of his property except by authority of law.
However, being one of the most controversial rights, the 44th Constitutional Amendment
Act of 1978 repealed the right to property as a Fundamental Right. It made it a legal right (a
constitutional right) in Part XII under Article 300 A of the Constitution.

Saving of Certain Laws

This Provision was not included in the original Constitution, but was enacted later on by the
Parliament. The Parliament inserted Articles 31A, 31B and 31C in the Constitution to protect
certain Parliamentary laws from the Purview of Judicial review.

1. Article 31 A – Saving of Laws providing for acquisition of estates

Article 31A was inserted in 1951. It provided for the saving laws that governed the acquisition
of estates etc. from being challenged in the court on the basis of Right to property (Article 19-
f) and equality before law (Article 14)
It protects the following five categories of laws from being invalidated and challenged on the
ground of infringement of the rights of Articles 14 and 19:

1. Acquisition of estates and rights related to it by the State;

2. Taking over the management of properties by the State;
3. The merger of corporations;
4. Modification or extinguishment of rights of directors or shareholders of
corporations
 5. Modification or extinguishment of mining leases.

It also gives the guaranteed right to compensation if the acquisition or requisition of private
property by the State.

2. Article 31 B – Validation of certain Acts and Regulations

It protects the acts and regulations in the 9th schedule from being invalidated and
challenged on the grounds of contravention of any fundamental right (Articles 14 and 19)

o The scope of Article 31B is broader than Article 31A as it shields any law
included in the 9th schedule (unlike Article 31A, which protects only five
categories).
o However, in its judgement in theR. Coelho case (2007), the Apex Court held
that even laws (placed after 24 April 1973*) under the 9th schedule could be
scrutinised if they transgress fundamental rights or the basic structure of the
Indian Constitution. (The doctrine of ‘basic structure was propounded in the
Kesavanand Bharati case on 24 April 1973)

3. Article 31 C – Saving of certain laws giving effect to Directive Principles

This article says that no law that seeks to implement socialistic directive principles
under Articles 39 (b) and (c) shall be declared invalid based on infringement of the
fundamental rights under Articles 14 or 19.

6. Right to Constitutional Remedies

1. Article 32 – Constitutional Remedies

Article 32 of Indian Constitution is considered the most crucial article because, as per this
article, the right to have one’s fundamental rights protected is itself a fundamental right.

o It confers the right to remedies for enforcing the fundamental rights of an

aggrieved citizen.
o The Supreme Court has held that Article 32 constitutes the basic structure of the
Constitution. Hence, it cannot be abridged or taken away even by an
amendmentto the Constitution.
1. The provisions under this article are the following:
1. The right to move the Supreme Court by appropriate proceedings for
enforcing the Fundamental Rights.
2. The Supreme Court shall have the power to issue directions, orders,
or writs to enforce fundamental rights.
3. Parliament has the ability to empower any other court to issue directions,
orders and writs. Any other court does not include high courts here because
these powers have already been conferred on the high courts.
• Article 32 cannot be suspended except as provided for by the Constitution.
 o In the case of a national emergency, the rights under this article can be suspended
by the President (Article 359).
o Article 32 provides protection only to the fundamental rights, not any other rights
like non-fundamental constitutional, statutory, customary, etc.

Writs
Borrowed from English law they are known as ‘prerogative writs.
Before 1950, only the Calcutta, Madras and Bombay High Courts had the power to issue the
writs.

• The Supreme Court, in the Chandra Kumar Case of 1997, ruled that the writ
jurisdiction of the Supreme Court as well as the High Court is a part of the basic structure
of the Constitution. Hence, it cannot be taken away even by an amendment to the
Constitution.

Types of Writs
• Habeas Corpus – meaning ‘to have the body of’.
o The order issued by a court to a person who has detained another person to
produce the body of the latter before the court. After that, the court examines the
cause and legality of the detention, which would set the detained person free if the
detention is illegal.
o According to Article 22, only 24-hour detention is allowed; after that, it becomes
illegal unless authorised by the magistrate.
o This writ is the bulwark of individual liberty against arbitrary detention.
o It can be issued against both public authorities and private individuals, but it
cannot be issued where the –
▪ Detention is by law
▪ The proceeding is for contempt of a court or a legislature
▪ The arrest is by a competent court, and
▪ The court has no jurisdiction over detention.

2. Mandamus – meaning ‘we command’.

• Command issued by the court to a public official directing him to carry out the
official duties that he has failed to fulfil and that is violating somebody’s rights.
• For the same purpose, it can be issued against a corporation, public body, an inferior
court, a tribunal or a government.
o It cannot be issued against –
o a private individual or body;
o to enforce departmental instruction that does not have statutory force;
o when the duty is voluntary and not mandatory;
o to enforce a contractual obligation;
o against the President of India or the governors of the states
o against the Chief Justice of a High Court performing in a judicial capacity
 3. Prohibition

• It is issued by a higher court to a lower court or tribunal to stop the latter from going
beyond its jurisdiction or usurping a jurisdiction it does not possess.
• Thus, unlike the mandamus that directs activity, the prohibition directs inactivity.
• It can be issued only against judicial and quasi-judicial bodies.

4. Certiorari – meaning ‘to be certified’ or ‘to be informed.’

• A higher court may issue this writ to a lower court or tribunal in order to transfer or
overturn the lower court’s decision in a matter.
• It is issued for excess jurisdiction, lack of jurisdiction, or error of law.
• Thus, prohibition is only preventive, while Certiorari is both preventive and
curative.
• Initially, Certiorari could be issued only against judicial and quasi-judicial
bodies and not against administrative authorities. However, in 1991, SC ruled that
the Certiorari could be issued even against administrative authorities affecting the rights
of individuals.
• Similar to Prohibition, Certiorari is also not available against legislative bodies and
private individuals or bodies.

5. Quo-Warranto – meaning ‘by what authority.’

• It is issued by the court to enquire into the legality of a person’s claim to a public
office.
• Hence, it prevents the illegal usurpation of public office by a person.
• This writ can be issued only in case of substantive public offices of a permanent
nature established by statute or the Constitution.
• In cases of ministerial office or private office, it cannot be issued.
• Any interested person can seek this writ not necessarily the aggrieved person.

Non-Applicability of Fundamental rights in certain situations

1. Article 33 – Application of Fundamental Rights to Armed Forces

Article 33 gives Parliament the authority to limit or eliminate the fundamental
rights of “Members of the Armed Forces, police forces, paramilitary forces, intelligence
agencies, and equivalent forces.”

• The purpose of this rule is to guarantee that they carry out their responsibilities properly
and maintain discipline among themselves.
• Only Parliament, not state legislatures, can pass laws under Article 33.
• Any law passed by Parliament cannot be challenged in court because it violates one or
more fundamental rights.
 • Civilian employees of the armed forces, such as barbers, mechanics, cooks,
carpenters, watchmen, bootmakers, and tailors, are included in the term “members of
the armed forces.
• Regarding implementing Fundamental Rights, a parliamentary law issued under Article
33 can also exclude the court-martial (tribunals formed under military law) from the
Supreme Court’s and the high court’s writ jurisdiction.

2. Article 34 – Application of Fundamental rights in Martial Law

It restricts fundamental rights while martial law is in force in any area within the Indian
territory. The expression ‘martial law’ has not been defined in the Constitution, but
literally, it means ‘military rule’.

• Martial law is implemented under extraordinary circumstances like war,

insurrection, invasion, rebellion, riot or violent resistance to the law.
• Article 34 authorises the Parliament to indemnify (compensate) any government
employee or any other person for any act carried out by him in connection with
maintaining or restoring order in any area where martial law was in effect.
• The Act of Indemnity made by the Parliament cannot be challenged in any court on the
grounds of infringement of any fundamental rights.

Legislation to give effect to Part III

Article 35 – Legislations to enact Fundamental Rights.

Article 35 enables the Parliament to enact laws on the specified matters, even those that may
fall within the purview of the state legislatures (i.e., State List). These are matters prescribed
under:

1. Article 16(3): Prescribing residence as a prerequisite for certain employment or

appointments in a state/Union territory/local or any other body.
2. Article 32: Empowering courts (other than Supreme Court and high courts) to issue
directions, orders and writs to enforce fundamental rights.
3. Article 33: Restricting or repealing the application of Fundamental Rights to members
of armed forces, police, etc.
4. Article 34: Indemnifying any government employee or any other person for any act
done during the operation of martial law in any area. [Article 34]
5. Outlining punishment for offences for violation of certain fundamental rights such
as forced labour (Article 23), human trafficking (Article 24), and Untouchability (Article
17).

Note: On all other matters, Parliament, as well as state legislatures, have the power to enact
laws to enforce fundamental rights (subject to the powers as per Union, State and Concurrent
lists).
 Rights outside Part III
There are certain rights that citizens enjoy that are constitutional but are found outside the
Part III of the Constitution. These are:

1. Right to Property (Article 300 A)

2. Right to vote (Article 326)
3. No tax can be imposed except by the authority of law (Article 265)
4. Freedom of Trade and Commerce throughout the country (Article 301)

Doctrines Related to Fundamental Rights

Over the years, the Supreme Court has established certain doctrines related to Fundamental
Rights:

• Doctrine of Severability :
If a law violates Fundamental Rights, only the inconsistent sections will be struck down.
[Article 13]

• Doctrine of Eclipse :
Pre-constitutional laws which are violations of Part III or any article of it shall be
eclipsed by the provisions of Part III. [Article 13]

• Doctrine of Non-Waiver :
No one has the right to give up their rights because the State has an obligation to
maintain them. [Olga Tellis Case, 1985]

Suspension of Fundamental Rights

In the case of a National Emergency, fundamental rights can be suspended in part or whole of
the country. These provisions are contained in the Part 18 (Emergency Provisions) of our
Constitution.

• FRs can be suspended only during a National Emergency (Article 352).

• Article 19 is automatically suspended in case of war and external aggression, but in
case of armed rebellion, Article 19 is suspended only if the President Issues a separate
order under Article 359.
• According to 44th CAA 1978, a Presidential order under Article 359 can suspend all
fundamental rights except Articles 20 and 21.

Significance of Fundamental Rights

• Integral to Personal Development: Fundamental rights are essential for the

preservation of Human dignity and the development of the personality of an individual.
These rights provide a very robust defence of individual liberty.
 • Checks Government’s Authority: It enforces the ‘Rule of Law’ and keeps a check on
the government’s authoritarianism.
• Strengthens Democracy: Without these fundamental rights, democracy would be
limited to mere electoral exercise. These rights enforce substantive aspects of
democracy, such as freedom of speech and expression, liberty, etc.
• Social Justice to Weaker Section: It provides social justice to the weaker sections of
society in the form of affirmative actions like reservation in educational institutions and
government appointments.
• Protection of Minorities: It protects the interests of minorities by providing them
with freedom of religion and cultural and educational rights.

Criticism of the Fundamental Rights

• Absence of Economic Rights: The Fundamental Rights are criticised for not providing
the right to work, the right to employment, the right to economic assistance and several
such economic rights. These rights are part of Directive principles and can not be
enforced.
• Limitations: The right to speech and expression (Article 19) and the right to life and
liberty (Article 21) have many limiting provisions. These rights are subject to a number
of exceptions; ‘reasonable restrictions’ makes the critics argue that fundamental
rights should be renamed as “limitations to the fundamental rights”. These
restrictions are not stated explicitly, causing ambiguity, which leads to misuse of the
provisions and unnecessary litigation.
• Preventive Detention: It goes against the principle of individual liberty and
dignity, and nowhere in the democratic world is there the provision of preventive
detention in the Constitution itself. These provisions provide excessive arbitrary
powers to the government, which is antithetical to rights and liberty.
• Suspension of Fundamental Rights: The suspension of fundamental rights during an
emergency puts the rights of individuals at risk.
• Expensive and Cumbersome Judicial Process: The Constitution has placed the
responsibility of protecting these fundamental rights on the judiciary. However, the
judicial process is not only a costly affair but also marred by the pendency of cases.
• No Consistent Philosophy: According to Sir Ivor Jennings, the fundamental rights
given in the Constitution are not based on any consistent philosophy; it is influenced by
the bitter experiences of colonial rule, western liberal values, a desire to reform social
institutions, etc. However, this complexity poses a challenge to the judiciary in
interpreting these rights