FUNDAMENTAL RIGHTS

ARTICLE 13
- Laws inconsistent with or in derogation of the fundamental rights
➢ Art. 13 (1) declares that all laws in force in the territory of India immediately before the
commencement of this Constitution shall be void to the extent to which they are
inconsistent with the provisions of this Part III.
➔ talks about the pre-constitutional laws i.e. laws which were in force before
the commencement of the Constitution shall be void to the extent to
which they are inconsistent with the provisions of this Part III.
➔ Is prospective in nature. All pre-Constitutional laws inconsistent with
Fundamental rights will become void only after the commencement of the
Constitution.
➔ They are not void ab initio
There are three main principles relating to this Article:
1. Doctrine of Severability
2. Doctrine of Eclipse
3. Doctrine of Waiver

Doctrine of Severability:
● According to this doctrine, if an offending provision can be separated from that which is
constitutional then only that part which is offending is to be declared void and not the
entire statute.
● Art.13 uses “to the extent of such inconsistency be void” which means that when some
provision of the law is held to be unconstitutional then only the repugnant provisions of
the law in question shall be treated by courts as void and not the whole statute.
● In State of Bombay v Balsara (AIR 1951 SC 318), a case under Bombay Prohibition Act,
1949, it was observed that the provisions which have been declared as void do not affect
the entire statute, therefore, there is no necessity for declaring the statute as invalid.
● In R.M.D.C v Union Of India (AIR 1957 SC 628) the doctrine of severability was
elaborately considered. In that case, Section 2(d) of the Prize Competition Act, which
 was broad enough to include competitions of a gambling nature as well as competitions
involving skill, was involved. The Hon’ble Supreme Court held that the provisions of the
Act were severable and struck down these provisions which related to competition not
involving skill.
★ The court held in R.M.D.C. case where after removing the invalid provision what
remains constitutes the complete Code and there is no necessity to declare the
whole Act invalid.
Doctrine of Eclipse:
● Is based on the principle that a law which violates fundamental rights is not nullity or
void ab initio but becomes only unenforceable i.e. remained in a moribund condition.
● It is overshadowed by Fundamental Rights and remains dormant; but it is not dead.
● These dormant laws are applicable to non-citizens.
● Such laws are not wiped out entirely from the statute book.
● Such law can be revived and made effective by an amendment in the Constitution.
● In Bhikaji v. State of M.P (AIR 1955 SC 781) the provisions of the C.P. and Berar Motor
Vehicles (Amendment) Act 1948 allowed the State Government to monopolise the motor
transport business in the province, excluding other motor transport [Link]
this provision was valid when enacted, it became void upon the commencement of the
Constitution in 1950 as it violated Article 19(1)(g). However, in 1951, Clause (6) of
Article 19 was amended through the Constitution (1st Amendment Act) to authorise the
government to establish a monopoly in any business. The Hon’ble Supreme Court
determined that this amendment removed the shadow of unconstitutionality from the
impugned Act, freeing it from any flaw or defect. Once the constitutional impediment
was removed, the law became enforceable against citizens and non-citizens. During the
eclipse period, the law was temporarily suspended due to the conflict with fundamental
rights. However, once the eclipse was removed, the law resumed its operation from the
date of such removal.
● In Deep Chand v. State of U.P (AIR 1959 SC 648) : Post constitutional law infringing
fundamental right are void ab initio and doctrine of eclipse cannot apply.
Doctrine of Waiver
● In India no person can waive or abandon his fundamental rights. The doctrine of waiver
has no application in part III of the constitution.
● The Hon’ble Supreme Court in Basheshar Nath v. Commissioner of Income Tax Delhi
and Rajasthan and Anr. (1959) held that these rights have not only been enriched in the
constitution for personal benefit but also for the benefit of the entire society. Court has
said in clear words that the American doctrine of waiver does not apply to the Indian
Constitution.

➢ Art.13(2): prohibits the State to make any law which takes away or abridges the rights
conferred by Part III and any law made in contravention of this clause shall, to the extent
of the contravention, be void.
● About Post-Constitutional laws
➢ Art.13(3)
➢ Art.13(4)

RIGHT TO EQUALITY

1. ARTICLE 14 - Equality before law and Equal protection of law

“The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.”
● Art.14 uses two phrases: Equality before law and Equal protection of law
● Equality Before Law
★ This concept is derived from the Constitution of England.
★ Means that no man is above law and that every person whatever be his rank or
conditions, is subject to the jurisdiction of ordinary courts.
★ Every person is equal in the eyes of the law ranging from a president to a peon.
★ It states that every person in our society should be treated equally and the same
punishment shall be granted for the same offence to every person in the society.
★ There shall be no discrimination on the ground of their wealth, caste, colour, race,
etc.
★ It is also known as legal equality.
 ★ This is a negative concept as it provides for the deprivation of any special
privilege or honour to a particular person in society.
● Equal Protection Of The Law
★ This concept is derived from the Constitution of the United States of America
(USA).
★ The spirit of this principle states that the “equals should be treated equally”.
★ In other words, this provision states that there is no comparison between equal
and unequal thus the state should adopt the mechanism of positive discrimination.
★ The term positive discrimination means some socio-economic steps aimed to
improve the condition of a particular section of society.
★ It only means that all persons similarly circumstanced shall be treated alike both
in the privileges conferred and liabilities imposed by the laws.
★ Thus, the rule is that “like should be treated alike and not that unlike should be
treated alike”
★ For example – Reservation for the Scheduled Caste and Scheduled tribe.
Mithu v State of Punjab (AIR 1983 SC 473)
[Link] Rao v J. Veeriah(AIR 1993 SC 929)
Test of Reasonable Classification
● Article 14 of the Indian constitution does not prohibit the reasonable classification of
objects, persons, and transactions for the purpose so as to achieve specific ends by the
parliament.
● Such classification should not be artificial, arbitrary or evasive and it must rest on
substantial distinction which is real. (i)-
A. The classification must be founded on intelligible differentia , grouped together
persons or goods from the left out ones of the group, and
B. The differentia must be in a rational relation with the sought object that is to be
achieved by the act.
● The object of the act and differentia on the basis of classification are two separate things.
● There must be the presence of a nexus between the object of the act and the basis of
classification which makes the classification.
 ● When a reasonable basis is not present for classification then such classification made by
the legislature must be declared discriminatory.
In E.P Royappa v State of Tamil Nadu(AIR 1974 SC 555)
Maneka Gandhi v Union of India(AIR 1978 SC 597)
Air India v Nargesh Mishra(AIR 1980 SC 1829)
Ajay Hasia v Khalid Mujib (AIR 1981 SC 487)
In Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538
Rule of Law
● Originator of the Rule of Law was Sir Edward Coke, the Chief Justice of James I Reign.
● No man is above law and also that every person is subject to the jurisdiction of ordinary
courts of law irrespective of their position and rank.
● In 1885, Professor A.V Dicey developed this concept of Coke and propounded three
principles or postulates of the rule of law in his classic book ‘Law and the Constitution.’
● Prof. Dicey gave three meanings to the Rule of Law:● absence of arbitrary power or
Supremacy of law, ● Equality before law and ● The dominance of Legal Spirit
➢ Absence of arbitrary power orThe supremacy of law
● “Rule of Law” stands for absolute supremacy of law.
● Every person ranging from a common man to a government minister needs to
abide by the holy Constitution.
● No person shall be prosecuted except in situations where the breach of law occurs
and this offence is proved in a court of law.
➢ Equality before law
● The law is equal for everyone.
● No one shall be accorded special treatment on account of his wealth, caste, sex,
race, etc.
● The law shall treat everyone equally.
➢ The dominance of Legal Spirit
● The term legal spirit denotes the spirit of justice.
● It states that the law shall always follow the principle of justice and no one
shall be deprived of his life and liberty except due process.
In Indira Nehru Gandhi v. Shri Raj Narain, the Hon’ble Supreme Court held that that “rule of
law” enshrined under Article 14 of the constitution is a part of the basic structure of the
constitution. It cannot be curtailed or destroyed even by an amendment to the constitution.
The exception to Rule of Law:
1. Equality before law does not mean that the powers of the private citizens are the same as
the powers of public officials
Ex: A police officer can arrest a person which is not possible for private citizens.
2. The rule of law does not prevent certain classes of persons being subject to special rules.
Ex: Members of the armed forces are controlled by military laws.; The President of India
and the State Governors enjoy certain immunities like no criminal proceedings, no arrest,
not answerable to certain courts, etc. (Article 361).
3. Ministers and other executive bodies are given wide discretionary powers by the statutes.
Ex: A minister may be allowed by law to act as he thinks fit
4. Certain members of the society are governed by special rules in their profession i.e.
lawyers, doctors, nurses, members of armed forces and police. Such classes of people are
treated differently from ordinary citizens

DOCTRINE OF NON-ARBITRARINESS
In E.P. Royappa v. State of Tamil Nadu Bhagwati,J. stated:
"Equality is a dynamic concept with many aspects and it cannot be 'cribbed, cabined and
confined' within the traditional and doctrinaire limits. From the positivistic point of view equality
is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies....Where an act
is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional
law and is therefore violate of Article 14...."equality and arbitrariness are sworn enemies , one
belong to the rule of law in republic while the other is of absolute monarch, when the act is
arbitrary it is unjust and unequal and it violate article 14.

2. ARTICLE 15

3. ARTICLE 16
4. ARTICLE 17
 5. ARTICLE 18
- Abolition of titles

● Art. 18 prohibits the State to confer titles on any body whether a citizen or non-citizen.
● Military and academic distinctions are exempted from the prohibition
● Art.18 (2) prohibits a citizen of India from accepting any title from any foreign State.
● Art. 18 (3) prohibits a person not being a citizen of India, but holding any office of profit
or trust under the State, from accepting any title from any foreign State without the
consent of the President.
● Art. 18 (4) provides that no person, citizen or non citizen holding any office of profit or
trust, shall, without consent of the President, accept any present or emolument or office
of any kind from or under any foreign State.
● However, the recent conferment of titles of “Bharat Ratna”, “Padma Vibhushan”, “Padma
Shri”, etc. introduced in 1954, are said to be not prohibited under Article 18 as they
merely denote State recognition of good work by citizens in the various fields of activity.
● Balaji Raghavan v Union of India (1996) 1 SCC 361
 RIGHT TO FREEDOM (Art.19 - Art.22)

● Personal liberty is the most important of all fundamental rights

● Art. 19 to Art. 22 deals with different aspects of this basic right.
● Together these form a Chapter on personal liberties which provides the backbone
of the Chapter on Fundamental Rights.
● These Articles deal with the following different aspects of the right to freedom:
★ Protection of certain rights regarding freedom of speech, etc. (Art.19)
★ Protection in respect of Conviction for offences (Art. 20)
★ Protection of Life and Personal Liberty (Article 21)
★ Right to Education (Art.21A)
★ Protection Against Arrest and Detention in Certain Cases ( Art.22)
ARTICLE 19:
- Protection of certain rights regarding freedom of speech, etc.
● Art.19(1) guarantees to every Citizen of India the following six basic fundamental
freedoms:
★ Freedom of speech and expression
★ Freedom to assemble peaceably and without arms
★ Freedom to form associations or unions
★ Freedom to move freely throughout the territory of India
★ Freedom to reside and settle in any part of the territory of India
★ Freedom to practise any profession, or to carry on any occupation, trade or
business
● The 1950 Constitution had one more freedom related to property as clause (f). But it was
omitted by the Constitution (forty-fourth Amendment) Act, 1978.
● These freedoms are recognized as the ‘natural rights inherent in the status of a citizen’.
● These freedoms are not absolute
● All the freedoms are qualified by ‘reasonable restrictions’ that may be imposed by law.
Therefore, freedoms are defined in such a manner that every person will enjoy her
freedom without threatening the freedom of others and without endangering the law and
order situation.

1. Art. 19(1)(a): Freedom of Speech and Expression:

● Art.19(1) (a) guarantees to every citizen the right to freedom of speech and
expression.
● Freedom of speech means the right to express one’s opinions freely without any
fear through oral speech, writing or broadcasting.
● It includes the expression of one’s idea through any communicable medium or
visible representation such as gestures, signs, and the like.
● The expression connotes also publication and thus the freedom of press is
included in this category. Freedom of the press is regarded as the ‘mother of all
liberties’ in a democratic society.
● This is essential for the functioning of a democratic polity.
 ● The freedom of speech and expression includes the liberty to propagate not one’s
views only. It also includes the right to propagate or publish the views of other
people ( Srinivas v. State of Madras (1931))
●
Freedom of press
● The fundamental right of the freedom of the press implicit in the right to freedom of
speech and expression which is essential for political liberty and proper functioning of
democracy.
● Freedom of speech includes the propagation of one’s views through print media or any
other communication channels like radio and television, subject to reasonable restrictions
imposed under Article 19(2) of the Indian constitution.
● Dr Ambedkar’s Speech in Constituent Assembly Debates VII, 980: “ press has no special
rights which are not to be given or which are not to be exercised by the citizen in his
individual capacity. The editor of a press or the manager is merely exercising the right of
the expression, and therefore, no special mention is necessary of the freedom of the press.
● In the leading case of Romesh Thapar v. The State of Madras, it has been decided by the
Supreme Court that freedom of the press is an intrinsic part of freedom of speech and
expression.
● In Indian Express Newspapers v. Union of India, the Court observed that Article 19 of
the Indian Constitution does not use the phrase “freedom of press” in its language, but it
is contained within Article 19(1) (a). There cannot be any interference with the freedom
of press in the name of public interest .It is, therefore, the primary duty of courts to
uphold the freedom of press and invalidate all laws or administrative actions which
interfere with it contrary to the constitutionalmandate. Similarly, imposition of pre-
censorship of a journal, or prohibiting a newspaper from publishing its own views about
any burning issue is a restriction on the liberty of the press
● R. Rajagopal & Ors. vs. State of Tamil Nadu & Ors. (1994): The Petitioners ran a
magazine, which announced that they would be publishing Auto Shankar’s
autobiography, which reportedly revealed his connections with several IAS, IPS and
other officials. Auto Shankar was at that time a prisoner convicted of several murders.
The Inspector General of Prisons wrote a letter requesting the Petitioners to refrain from
 publishing the autobiography on several grounds, including that the autobiography was
not authentic. The Petitioners approached the Supreme Court to protect their right to
publication. The Supreme Court ruled that the Petitioners had the right to publish the
autobiography, even without the prisoner’s consent, to the extent it was based on public
records and noted that the State could not impose prior restrictions on the likelihood of
autobiography being defamatory; a remedy for defamation would only arise post-
publication.
● Bennett Coleman & Co v UOI (AIR 1973 SC 106): The Supreme Court of India accepted
petitioners’ challenges that certain restrictions and regulations on newspapers affected the
right to freedom of speech and expression. The petitioners challenged the restrictions on
the import of newsprint under Import Order 1955; the regulation of sale, acquisition, and
use of newsprint under Newsprint Order 1962; and the direct regulation of size and
circulation of newspapers under the Newsprint Policy of 1972-73.
Scope of freedom of press:
1. Freedom to spread information
● Without this liberty, freedom of the press is nugatory. Though this right is also
implicit in the freedom of expression, Romesh Thapar v State of Madras makes
it explicit. A press can by means of its publications on various mediums like
print, broadcasts, electronic, etc. Thus, freedom to spread information is an
intrinsic part of freedom of the press.
2. Freedom to criticize
● The press, just like individuals has the liberty to criticize the government, its
officials, its policies, its actions, its laws, its statements, etc. However, the press
cannot take abuse this right and cannot provoke the public against the government
or cannot abet riots, rebels, or mutiny or insecurity of the state or the government.
3. Freedom to receive the information
● Again, the heart of the liberty to press. If the press is not equipped with the
information, it cannot empower the public with the knowledge and thus, the right
of expression will become futile because there will be no access to information on
whose basis anything can be expressed.
4. Freedom to report court proceedings
 ● In the words of Jeremy Bentham, “The soul of justice is publicity”. In Sahara
India Real Estate Corpn ltd v SEBI, SC held that it is the right of the media to
report the judicial proceedings.
5. Freedom to act as an advertising platform
● The major income of most of the presses comes from advertisements, whether it is
a radio, or news channel, or mobile application, or newspaper. It was after Tata
Press v Mahanagar Telephone Nigam that SC incorporated the right to
advertisement as a part of the right to freedom of expression.
6. Freedom to broadcast
● In the modern age of technology, the power to broadcast is essential as it is one of
the major channels to spread information. This right not only includes
broadcasting on news channels, and radios, but also on the internet like websites,
blogs, and mobile applications.
Right to Information
● The right to know or to get information is one of the aspects of freedom of speech and
expression.
● Freedom to receive information is also included in the freedom of speech and expression
Right not to Speak
● This right has also been included in freedom of speech and expression.
● Bijoe Emmanuel v. The State of Kerala: This case is also known as the National Anthem
case. In this case, three students were expelled by the school authority on refusal to sing
the National Anthem. However, these children stood from their seats in respect, when the
national anthem was playing. The validity of the expulsion of children was challenged
before the Kerala High Court. The court held that the expulsion of students on the ground
that it was their fundamental duty to sing the national anthem was upheld. However, on a
further appeal by the students before the Supreme Court, it held that the students had not
committed any offence under the Prevention of Insult to National Honor Act, 1971. Also,
there was no law through which their fundamental rights under Article 19(1)(a) of the
Indian Constitution could be curtailed. And also it was held that expulsion of children
from school violated the right of freedom not to speak under Article 19(1)(a).
 ● UNION OF INDIA v. NAVEEN JINDAL:
Facts: The respondent Naveen Jindal was not allowed to hoist the national flag at the
office premises of his factory by government officials on the ground that it was not
permissible under the Flag Code of India. In this case, the high court held that the
restrictions that the Flag Code imposed on citizens on hoisting the National Flag were not
permissible under clause (2) of Article 19 of the Indian Constitution. Displaying a flag is
an expression of pride as well as an expression of genuine enthusiasm and it can only be
restricted in accordance with what has been prescribed in the Constitution.
Right to vote
● Right to know the antecedents of the candidates at election:
In Union of India v. Association For Democratic Reforms (2002), the Hon’ble Supreme Court
held that the voters have a fundamental right to know the antecedents of the candidate contesting
election including his/her criminal past.

● In People’s Union for Civil Liberties v. Union of India, The Indian Supreme Court ruled
that the Constitution protects a right not to vote as part of the fundamental right to
freedom of speech and expression. The case had been brought as a challenge to
government rules which required a presiding officer to take a note whenever a voter
decided not to vote for any of the candidates. The People’s Union for Civil Liberties
challenged the constitutionality of this practice.

Safeguards for Freedom of Speech and Expression under Article 19(2)

Article 19(2) of the Indian constitution allows the state to make laws that restrict freedom of
speech and expression so long as they impose any restriction on the -
● The state’s Security such as rebellion, waging war against the State and not ordinary
breaches of public order and public safety.
● Interest of Integrity and Sovereignty of India– this was added by the 16th constitutional
amendment act under the tense situation prevailing in different parts of the country.
● Contempt of court: Restriction can be imposed if the speech and expression exceed the
reasonable and fair limit and amounts to contempt of court.
 ● Friendly relations with foreign states: It was added by the First Amendment Act, 1951 to
prohibit unrestrained malicious propaganda against a foreign-friendly state.
● Defamation or incitement to an offense: A statement, which injures the reputation of a
man, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule,
or contempt. The civil law in relating to defamation is still uncodified in India and subject
to certain exceptions.
● Decency or Morality – Article 19(2) inserts decency or morality as grounds for restricting
the freedom of speech and expression. Sections 292 to 294 of the Indian Penal Code
gives instances of restrictions on this freedom in the interest of decency or morality. The
sections do not permit the sale or distribution or exhibition of obscene words, etc. in
public places. However, the words decency or morality is very subjective and there is no
strict definition for them.
Need of these Safeguards of Freedom of Speech & Expression
● In order to safeguard state security and its sovereignty as a speech can be used against the
state as a tool to spread hatred.
● To strike a social balance.
● Certain prior restrictions are necessary to meet the collective interest of society.
● To protect others’ rights.
● Any speech can harm a large group of people and their rights, hence reasonable
restrictions must be imposed so that others right is not hindered by the acts of one man.
2. Art. 19(1)(b): Freedom to assemble peaceably and without arms
The State guarantees every person the freedom to assemble peacefully without arms. However,
as above, reasonable restrictions can be imposed in the interests of the sovereignty and
integrity of the country and public order- Art.19(3). The right to assembly is implied in the
very idea of the democratic Government. The assembly must be non-violent and must not cause
any breach of public peace
3. Art. 19(1)(c): Freedom to form associations or unions
The State guarantees every person the freedom to form associations or unions. The State can
impose restrictions in:
 ● the interests of the integrity, security and sovereignty of the country, friendly relations
with foreign nations, for public order, with respect to defamation, incitement to offence
or contempt of court -Art. 19(4)
4. Art. 19(1)(d): Freedom to move freely throughout the territory of India
The State guarantees to all citizens freedom to move freely throughout the territory of India. But
this right can also be restricted on the grounds of (security, public order or for protecting the
interests of the Scheduled Tribes):
● Interest of the general public
● for protecting the interests of the Scheduled Tribes -Art. 19(5)
5. Art. 19(1)(e): Freedom to reside and settle in any part of the territory of India
The State guarantees to all citizens to reside in any part of the country. Although restrictions can
be imposed on the grounds of (security, public order or for protecting the interests of the
Scheduled Tribes):
● Interest of the general public
● for protecting the interests of the Scheduled Tribes - Art.19(5)
6. Art. 19(1)(f) deleted by 44th Amendment Act
7. Art. 19(1)(g): Freedom to practise any profession, or to carry on any occupation, trade or
business
Art. 19(1)(g) guarantees that all citizens have the right to practise any profession or to carry on
any occupation, trade or business
● Restriction - Art. 19(6) :
★ The state can make any law:
a. Imposing reasonable restriction on this right in the interest of public
b. Prescribing professional or technical qualifications necessary for
practising aqny profession or carrying on any occupation, trade, or
business
c. Enabling the State to carry on any trade or business to the exclusion of
citizens wholly or partially