Part III – Fundamental Rights | Constitution of India (COI)

Article 15 of the Constitution includes Clauses 1 to 6, and an explanation section. Clause 2 and Clause 6 each have two sub-clauses available.

Article 15 forbids discrimination (any citizen) on certain grounds, it also allows 'the State' to take positive action for the welfare of Women, Children, Backward Classes, SCs, STs and Economically Weaker sections ('EWS'), thus balancing 'Equality' and 'Social Justice'.

Clause 1: The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth.
Principle: Equality of civil rights and protection against arbitrary State action.

Clause 2: No citizen shall be discriminated against on any of the above grounds in matters relating to-

Sub-Clause 2(a): Access to shops, public restaurants, hotels and places of public entertainment.
Sub-Clause 2(b): Use of public resources including wells, tanks, bathing ghats, roads and other places maintained or funded by the State or dedicated to the public.

Principle: Equal access to public spaces & facilities.

Clause 3: The State shall make special provisions for women and children.
Principle: Allows for affirmative action for vulnerable groups.

Clause 4: The State may make special provisions for the socially and educationally backward classes, Scheduled Castes ('SCs') and Scheduled Tribes ('STs').
Principle: It permits reservations and welfare measures for the underprivileged communities.

Clause 5: Under Article 30(1), 'the State' can make special provisions for admission to educational institutions including private (Aided or Unaided) institutions but not Minority Institutions for SCs, STs and Backward Classes.
Principle: Reservation policy applies to private education.

Clause 6: 'The State' may provide for reservation of seats or posts for citizens belonging to 'EWS' (other than the SCs, STs and Backward Classes).

Sub-Clause 6(a): General promotional actions.
Sub-Clause 6(b): Reservation in educational institutions (including Private,Aided or Unaided but excluding minority institutions) up to 10% of seats in addition to the existing reservations.

Principle: Introduces economic criteria for positive action.

Explanation: EWS is defined on the basis of family income and other indicators notified by the State.

Three amendments were made to Article 15.

1. The Constitution (First Amendment) Act, 1951, s. 2 (w.e.f. 18-6-1951) included Clause 4.
2. The Constitution (Ninety-third Amendment) Act, 2005, s. 2 (w.e.f. 20-1-2006) included Clause 5.
3. The Constitution (One Hundred and Third Amendment) Act, 2019, s. 2 (w.e.f. 14-1-2019), inserted Clause 6 and an Explanation.

• Pramati Educational & Cultural Trust® & Ors. v. Union Of India & Ors., 2014 INSC 362; [2014] 11 S.C.R. 712.
• T.M.A. Pal Foundation and Ors. v. State of Karnataka and Ors., 2002 INSC 454; [2002] SUPP 3 SCR 587.
• Shamsher Singh & Anr. And State Of Punjab, 1974 INSC 154, [1975] 1 SCR 814.
• His Holiness Kesavananda Bharat Sripadagala Var U U. v. State of Kerala, 1973 INSC 91; [1973] SUPP. 1. SCR 1.
• The State of Punjab & Ors. v. Davinder Singh & Ors., 2024 INSC 562; [2024] 8 S.C.R. 1321.
• Dr. Jaishri Laxmanrao Patil v. The Chief Minister & Ors., 2021 INSC 284; [2021] 15 S.C.R. 715
• The State Of Punjab & Ors. v. Davinder Singh & Ors.,2020 INSC 512; [2020] 10 S.C.R. 857.
• D. P. Joshi v. The State Of Madhya Bharat And Another. 1955 INSC 3, [1955] 1 SCR 1215.
• Union of India v. R C Poudyal, 1993 INSC 51; 1993 AIR 1804, 1993 SCR (1) 891.

Article 16 has Six (06) Clauses from Clause 1 to Clause 6 with Clause 4 with two Sub-Clauses.

It covers equal and nondiscriminatory behavioural guidlines for the State in it's employment along with flexibility to address few specific social requirement to make exceptions for specific scenarios with one or more condition.

The Article 16 has been amended five (05) times via below Amendments;

1. The 70^th Amendment via section. 29, and Sch., w.e.f. 01-11-1956.
   Clause 3 wording changed to "under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory"
2. The 77^th Amendment via section. 2, (w.e.f. 17-6-1995), new Sub-Clause 4A inserted.
3. The 85^th Amendment via section. 2, for certain words (retrospectively) (w.e.f. 17-6-1995), new words inserted in Sub-Clause 4A
4. The 81^st Amendment via section. 2, (w.e.f. 09-6-2000), new Sub-Clause 4(b) inserted.
5. The 103^rd Amendment via Section 3 (w.e.f. 14-1-2019), new Clause 6 inserted.

1. T.M.A. Pal Foundation And Ors. v. State Of Karnataka And Ors., 2002 INSC 454; [2002] SUPP 3 SCR 587.
2. Indra Sawhney And Ors. Etc. Etc. v. Union Of India And Ors. Etc. Etc., [1992] SUPP 2 SCR 454
3. The General Manager, Southern Railway v. Rang A Chari, INSC 1962 196, [1962] 2 SCR 586.
4. State Of Kerala & Anr, A v. N. M. Thomas & Ors., 1978 INSC 27; [1978] 2 SCR 864.
5. Maloon Lawrence Cecil D'Souza A v. Union Of India & Ors., 1975 INSC 115; [1975] SUPP 1 SCR 409.
6. S. K. Bhate & Ors. v. Union Of India & Ors., 1975 INSC 285; [1976] 2 SCR 758.
7. Ram Lal Wadhwa & Anr. v. The State Of Haryana & Ors., 1972 INSC 145; [1973] 1 SCR, 608.

Article 17 - Abolition of Untouchability.

It reads:

1. All types of untouchability are abolished.
2. No person will be subjected to any disability or discrimination on the ground of untouchability.
3. Violations are crimes and punishable by law.

Justification: The makers of the Constitution wanted to prohibit untouchability to ensure social equality and defend the dignity of each and every individual.

Later on to give teeth to Article 17, Parliament enacted the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Protection of Civil Rights Act, 1955.

No amendments done in Article 17 from its enactment.

1. Ashoka Kumar Thakur v. Union Of India & Ors., 2008 INSC 4 SCR 1; [2008] 4 S.C.R. 1.
2. Soosai Etc. v. Union Of India And Others, 1985 INSC 215; [1985] SUPP 3 SCR 242.

The system of titles is prohibited in Article 18.

Two catogeries only have exception,

1. Military ranks (e.g., Lt., Maj.) &
2. Educational (e.g., Dr., Prof.).

No citizen has accepted a foreign title.

Non-citizens are not allowed to accept such titles, if they are officially employed by the State.

Another exception for office bearers can accpet with the President pre-approval.

No Amendment.

1. Balaji Raghavan S.P. Anand v. Union Of India, 1955 INC 900; [1955] SUPP 6 SCR 694.
2. Ms. Indira Jaising v. Supreme Court Of India Through Secretary General And Ors., 2017 INSC 1031 ; [2017] 10 S.C.R. 478.

One of the most important articles in Part II, "Right to Freedom", is Article 19.
The total number of Clauses in this article are Six (06). From (a) to (g), Clause 1 has been further divided into six enforceable sub-clauses; Sub-Clause (g) was repelled.

Every Clause has a corresponding proviso that places the following reasonable restrictions on the use of the right:

• Sub-Clause 19(1)(a) ==> Proviso Clause 19(2);
• Sub-Clause 19(1)(b) ==> Proviso Clause 19(3);
• Sub-Clause 19(1)(c) ==> Proviso Clause 19(4);
• Sub-Clause 19(1)(d) and Sub-Clause 19(1)(e) ==> Proviso Clause 19(5);
• Sub-Clause 19(1)(g) ==> Proviso Clause 19(6).

In summary, the "Right to Freedom" is not a absolute right. Every citizen is entitled to exercise their freedom, subject to the law's legitimate restrictions. The important 44th Amendment of the Constitution in 1978 changed the Article 19. Prior this amendment the Article 19 "Right to Freedom" suspestion, scope and effect how and what right will have negative impact and up to what extend.

Global Alignment:
1. India's ratification of the ICCPR and ICESCR in 1979 made Article 19 of the Indian Constitution legally binding, in line with the UN Charter's human rights mandate, and concretely embodied in the UDHR(1948).

1. The 97th Amendment ref Section. 2 (w.e.f. 8-2-2012), sub-clause c new words inserted.
2. The 44th Amendment ref Section. 2 ( w.e.f. 20-6-1979), sub-clause e new word inserted. Also Sub-clause (f) omitted.
3. The 1st Amendment 1951 ref Section. 3 (w.e.f. 18-6-1951), for Clause 2 new words (with retrospective effect).
4. The 16th Amendment ref Section. 2 (w.e.f. 5-10-1963), Clause 2 new words added.
5. The 44th Amendment ref Section. 2 (w.e.f. 20-6-1979), Clause 5 "sub-clauses (d), (e) and (f)".
6. The 1st Amendment 1951 ref Section. 3 (w.e.f. 18-6-1951), Clause 6 new wording inserted at end with two points (i) & (ii).

1. Justice K S Puttaswamy (Retd.), And Anr. v. Union Of India And Ors, 2017 INSC 801; [2017] 10 S.C.R. 569.
2. P.A. Inamdar And Ors. v. State Of Maharashtra And Ors., 2005 INSC 358; [2005] SUPP. 2 SCR 603.
3. T.M.A. Pal Foundation and Ors. v. State of Karnataka and Ors., 2002 INSC 454; [2002] SUPP 3 SCR 587.
4. ATIORNEY GENERAL FOR INDIA ETC. ETC. v. AMRRATLAL PRAJIVANDAS AND ORS. ETC. ETC., 1994 INSC 203, [1994] SUPP. 1 SCR 1.
5. Tara Prasad Singh Etc. Etc. v. Union Of India & Others, 1980 INSC 106; [1980] 3 SCR 1042.
6. His Holiness Kesavananda Bharat Sripadagala Var U U. v. State of Kerala, 1973 INSC 91; [1973] SUPP. 1. SCR 1.
7. Madhu Lima Ye v. Sub-Divisional Magistrate, Monghyr & Ors., 1970 INSC 231; [1970] 2 SCR 711.
8. Rustom Cavasjee Cooper v. Union Of India, 1970 INSC 18, [1970] 3 SCR 530.
9. I. C. Golak Nath & Ors. v. State of Punjab & Anrs., 1967 INSC 45, [1967] 2 SCR 762.
10. The State Trading Corporation Of India Ltd. & Others v. The Commercial Tax Officer, Visakhapatnam And Others, 1963 INSC 157, [1963] 4 SCR 99.
11. Satish Chandra, District Magistrate, Delhi, And Others.,1954 INSC 24, [1954] 1 SCR 1077.
12. A.K.Gopalan v. The State Of Madras, 1950 INSC 13, [1950] 1 SCR 80.

1. The milestone case of ‘L. R. Coelho (Dead) By LRS. v. State Of Tamil Nadu(2017) Case,‘, was an important case on Art. 31B, which settled the modern position on this Article. The Constitution Bench held that any law inserted in the Ninth Schedule after 24 April 1973 would be subject to judicial review if it violated the basic structure of the Constitution. It concluded the significant restricted the breadth of the protection provided by Art. 31B..


2. One of the case of ‘Waman Rao v. Union of India, (1980) Case,‘ marked the stage where the Ninth Schedule were based on their dates for the insertion and amendments. It allowed pre-24 April 1973 laws to be protected while allowing later amendments to be challenged in courts. Connect the legacy part and later part in this case.


3. The landmark case of ‘Kesavananda Bharati's Case,‘ established the basic structure doctrine. It was not directly related to Art. 31B, yet it affected the field of Ninth Schedule as it had made the amendment of the Constitution by Parliament subject to the condition that such amendments cannot destroy or distort the basic structure of the Constitution. After this ruling Art. 31B could not be seen as conferring absolute immunity.


4. The case of ‘Sajjan Singh v. State of Rajasthan (1964) Case,‘revealed the early judicial support for constitutional amendments which was quite broad. The Court supported wide reform legislation. That has become historically significant once the Court adopted the concept of basic structure and restricted legislative power.

Overview

The Constitution's Article 31C serves as a safeguard for laws that were enacted with the intention of incorporating the directive principles outlined in Articles 39(b) and 39(c). Without this protection, the laws would be declared unconstitutional due to their violation of the aforementioned articles. Fourteen and nineteen. TIn the event of a challenge to Fundamental Rights, the aforementioned provision was initially intended to prioritize the implementation of specific welfare legislation to assure the efficacy of the social and economic revolution. The Constitution (Twenty-fifth Amendment) Act, 1971, introduced the provision, which was subsequently expanded by the Constitution (Forty-second Amendment) Act, 1976. However, the Court invalidated the latter amendment in 1980. It is still in force and subsists only in its narrower form and in the form it was when first enacted.

Key Takeaways

Article 31 C shields only the laws which are aimed at implementing Arts. 39(b) and (c) of the Constitution and protects them from being invalidated on grounds of violation of Arts. 14 and 19. The scope of Art. 31C, as interpreted in 'Minerva Mills Ltd. v. Union of India (1980)', is restricted by the Constitution’s balance between Fundamental Rights and Directive Principles, limiting its effect to its original extent.

Historical Amendments and Judicial Response

1. The Constitution (25) Amendment under Section 3 (w.e.f. 20-4-1972) inserted Art. 31C.
2. The Constitution (44) Amendment of 1976, under Section. 4, for “the principles specified in clause (b) or clause (c) of article 39” (w.e.f. 3-1-1977). And Section 4 has been declared unconstitutional by the ‘Minerva Mills Ltd.'s Case,‘.
3. The Constitution (44) Amendment of 1976, under Section. 8, for “article 14, article 19 or article 31” (w.e.f. 20-6-1979)
4. The words in italics struck down by the Supreme Court in the case ‘Kesavananda Bharati's Case‘

Case Laws:

1. While it tried to insulate all DPSPs from judicial review by the amendment of Article 31C by the 42nd Amendment in 1976, the Supreme Court curtailed that broadened scope in ‘Minerva Mills Ltd.'s Case,‘, thus keeping in mind the balance between Fundamental Rights and Directive Principles.
2. ‘Sanjeev Coke Manufacturing's Case,‘The Apex Court reaffirmed that laws aimed at effectuating Articles 39(b) and 39(c) are save from the limited protection of Art. 31C, but it held that the courts still have power to scrutinize the material purpose of such legislation and that the legislature's declaration that a law serves a specified objective is not by itself a determining criterion, on what it is added.
3. ‘Kesavananda Bharati's Case,‘, the Supreme Court upheld the first limb of Art. 31C by striking it down; however, it struck down the second limb because judicial review is a component of the fundamental structure.

Overview

The Constitutional provision, Article 31D, was made during the emergency era to safeguard the laws enacted for preventing and controlling anti-national activities. The main objective of the Article was to save laws passed by Parliament for preventing or controlling anti-national activities and also to cover associations carrying out such activities. One of the objective is to make sure Art. 14 and Art 19 overwritting effect is aoided.

Omission and Constitutional Shift

The Section 2 of Forty-Third Amendment of 1977 provided for the omission of Article 31D this had restored the previous pre-emergency state of affairs that stressed the importance of Fundamental Rights and diminished the legislative immunity that was granted during the emergency regime
Current Relevance Since its deletion, Article 31D holds only historical significance and no longer plays any role in current constitutional law. Any law or challenge relating to anti-national activities are regulated by the general provisions of the Constitution.

Amendments

1. It was introduced by section 5 of the Forty-second Amendment in 1976(effective from 3rd January 1977).
2. Later, it was omitted by Section 2 of the Forty-third Amendment in 1977 (effective from 13th April 1978) signifying a shift away from the Emergency regime back to the regime of protection of Fundamental Rights and protection of the constitutional balance of power.

Art. 31D was enacted for very short duration, no major case law before Apex court.

Explanation

The Constitution Art. 32 the fundamental right is one that enables the Supreme Court to have powers to enforce Fundamental Rights contained in Part III of the Constitution. It is often called the 'heart and soul' of the Constitution, as this is where it actually gives effect to the rights, rather than just listing them. This Article gives a citizen of this country the right to move the Supreme Court, to ensure its rights and the Supreme Court in return may issue writs, to execute its directives, a critical constitutional safeguard.

Scope and Significance

In order to safeguard Fundamental Rights, Art. 32 grants citizens the authority to petition the Supreme Court and authorizes the Court to issue five Writs namely:

1. Habeas Corpus; 
2. Mandamus;
3. Certiorari;
4. Prohibition; and 
5. Quo Warranto.

It is a legal process that is used to enforce the rights of citizens.

The Art. 32 itself being a Fundamental Right emphasizes the importance of remedy given by the judiciary to protect the rights of an individual and it is faster and more powerful a channel for Fundamental Rights. A citizen can approach the Supreme Court in case the Fundamental Right is violated, and hence Art. 32, an effective instrument of Fundamental Rights. The 5 WRITs for this can be issued by Supreme Court and are -  (i) Habeas Corpus, (ii) Mandamus, (iii) Prohibition, (iv) Warranto, and (v) Certiorari, by Supreme Court of India. The Apex Court being the guardian of Fundamental Rights of an individual, and by the virtue of Art. 32 can move WRITs for enforcement of Fundamental Rights.

Limitations:

The Constitution Art. 226 allows the High Courts to issue WRITs to enforce the right of any citizen within the limits of its territorial jurisdiction and Art. 32 is the sole remedy for enforcement of Fundamental Rights via the Apex Court. However, both articles function in combination, with Art. 32 being the most effectual and effective remedy, and the remedy granted under Art. 32 cannot be derogated except for situations ’as prescribed’. The very fact that no limitation has been mentioned in Art. 32 to warrant the constitutionality of the Art. 32 in the light of Fundamental Rights. This is an illustration that no one can take shelter under the above provisions of Art. 226 to escape the jurisdiction of the Supreme Court.

Post enactment of Art. 32, there is no amendment.

Landmark Cases:

1. Recently the judgment ‘Supriyo @Supriya Chakraborty v. Union of India(2023),‘ reinforced that the court has maintained its proactive approach to the enforcement of fundamental rights through Article. 32, particularly in matters related to the Right to life and liberty and the Right to free expression. The court's continued expansion of the people's rights that are enforceable under the law is reaffirmed in the rulings in Art. 32 and emphasizes the very fact that Art. 32, is itself a fundamental right.


2. '‘L. Chandra Kumar v. Union of India (1997),‘', the key to the controversy was whether there was a jurisdictional hurdle in High Court/s and the Supreme Court for the adjudications through tribunals in constitutional matters. In L. Chandra Kumar v. UOI, it was held that judicial review is a fundamental feature of the constitution and cannot be taken away under Art. 32 and Arts. 226/227. The case saved Art. 32 as the basic feature of the Constitution. 


3. '‘Smt. Ujjam Bai v. State of Uttar Pradesh (1962),‘', the judgment went into the aspects whether under the provisions of Art. 32, an assessment order would be amenable, if unconstitutional or ultra vires. The Apex Court held that a defect or illegal act will not necessarily attract the WRIT power of Art. 32; an invasion of a guaranteed Fundamental Right will be required. This case continues to serve as a reference for understanding the constraints of the writ power under Art. 32.


4. ‘Ramesh Thappar v. State of Madras (1950),‘ one of the earliest judgments of the Supreme Court held that an arbitrary restriction on freedom of speech and expression (as per Art. 19(2)) is not permissible, unless it strictly falls within the limits prescribed in the constitution. In this case the WRIT was issued under Art. 32 immediately to secure freedom of speech and expression, thus it was significant as the WRIT was issued immediately.

Original Content and Purpose

Art. 32A is a measure introduced as an ad interim to restrict the scope of judicial review by the Supreme Court regarding the validity of laws of the State enacted under Article 32, a clause dealing with the right to remedy guaranteed by the Constitution. The purpose was to prevent the court from reviewing the validity of state laws unless the question of validity of a central law was also involved, thus restricting the scope of judicial scrutiny on laws concerning fundamental rights.

Legal Issue and Principles

The legal issue that the Article 32A sought to tackle was the question of whether the jurisdiction of the Supreme Court over fundamental rights cases could be restricted so as to prevent the validity of state laws from being reviewed. The issue that was being tried to be curbed by inserting Article 32A was judiciary's overreach, later removed, thereby upholding the constitutional provision that fundamental rights are to be safeguarded through the remedial procedure under Article 32, vide ‘Minerva Mills Ltd.'s Case,‘.

Constitutional Implications
The ongoing conflict between the independence and freedom of judges and legislation is underscored by the addition and revocation of the provision, while the brief existence of the provision further underscores the need of judicial review in safeguarding fundamental rights, restoring the court's power to scrutinize all legislation under Article 32 that violates fundamental rights.

Legislative and Amendment History

1. Introduced by the Forty-second Amendment, S. 6 (w.e.f. 1-2-1977) Article 32A was introduced
2. Later, the Forty-third Amendment, 1977 repealed Article 32A in an attempt to re-assert the original role of judiciary in safeguarding the fundamental rights and re-establishing balance among the judiciary branches

No Major case laws associated with Art. 32A.

Detailed Explaination

Art. 33 is a unique constitutional provision empowering the legislature to regulate fundamental rights only for certain specific departments like defence forces. This authority grants the parliament the only right to determine which fundamental rights can be modified for defense forces. Therefore, executive actions cannot use Art. 33 to deny or limit fundamental rights of citizens.

Its objective is to guarantee that fundamental rights of citizens do not obstruct national security concerns, such as military hierarchy, secrecy, and obedience, which are not present in the lives of ordinary citizens.  The application of general principles on fundamental rights to defence services may jeopardize military discipline. Therefore, when Parliament passes laws about defence services using Art. 33, it's not a blanket denial but rather adjusting rights based on the demands of national security.

One immediate consequence of Art. 33 is that, with Parliament's authorization through a law, service rules, disciplinary regulations, and he terms of service pertaining to those forces may lawfully restrict the freedom of speech, association, or mobility, or they may otherwise deviate from the procedural safeguards provided by Part III. The restriction or derogation must be 'prescribed with a view to ensuring a proper discharge of duties and maintenance of discipline amongst such persons.'

Legal interpretation:

Art. 33 is enabling, not self-executing; Parliament must enact a law specifying the extent of restriction or abrogation.

Practical implications:

Personnel in the Armed Forces and allied services may face constitutionally valid service restrictions that would be impermissible in ordinary civilian settings, especially on speech, association, and discipline-related conduct.

The National Security Act, 1980 was enacted as a preventive detention statute, and demonstrates the constitutional space that is still available in India for special security laws. The statute permits detention where necessary for securing the general public. This law forms part of the broader legal fabric in which Art. 33 works.

Art. 33 empowers the Parliament to abridge Fundamental Rights for personnel engaged in national security to preserve discipline and national security, and it functions by being put into effect by legislation. The courts check if the restrictions imposed are fair and are genuinely necessary for operation needs. Its foundational constitutionality is recognized by landmark decisions, providing room for balancing individual rights and the necessity for national security.

 Amendments:

1. By the the 50th Amendmend in 1984 under Section. 2 (w.e.f. 11-9-1984), this Art 33 was substituted (replaced) .

Case Laws:

1. ‘ Joseph Shine v. Union of India (2018),‘,
   The Apex Court in Joseph Shine v. Union of India, took up miscellaneous application by Union of India with regards to the applicability of the previous order of the apex court in 2018 wherein it had nullified section 497 IPC. It held that the Armed Forces were exempt from the impact of the judgment passed on the section, based on the provision in the Constitution (Art. 33) that allowed restrictions or denial of the fundamental rights for members of the armed forces in order to maintain discipline and performance of duties.
   Emphasizing that the previous decision did not even consider the impact of the Armed Forces Act, Navy Act, and the Air Force Act upon it, the bench clarified that it had no occasion to deal with, nor had it held invalid sections 45 and 63 of the Army Act, 1950 (or their counterparts in other three forces) which proscribed certain acts as amounting to 'unbecoming conduct' and prejudicial to discipline and the good order.
   The Court clarified that it was not determining the vires or expressing an opinion on the scope of the aforementioned sections. The bench also determined that the public criminal law (section 497 IPC) decriminalizing adultery does not constitute the Courts' endorsement of adultery. Furthermore, it was observed that adultery continued to be a moral and civil offense and could serve as a basis for divorce, in accordance with a pertinent section of Hon'ble Justice Indu Malhotra's judgment. The Supreme Court ruled the armed forces' services statutes were sufficient to criminalize adultery. Consequently, the three services may enforce disciplinary action for adultery against their personnel under their respective laws.


2. ‘Ous Kutilingal Achudan Nair v. Union of India Case in (1976),‘
   The Art. 33 is a constitutional provision, allowing Parliament to limit Fundamental Rights, specifically for defence forces. It allows an exception to the application of Art. 19 (1) (c) and Art. 19 (1) (g). By Art. 33, Parliament is empowered to pass legislation regulating to what extent any of the rights conferred by Part III shall in their application to the members of armed forces or forces charged with the maintenance of public order, be restricted or abrogated so as to enable them to perform their duties effectively and to maintain discipline among them.


3. ‘Mohammed Zubair Corporal Case in 2016,‘
   Core Issue: Whether an individual enrolled as an airman in the Indian Air Force (IAF) has a constitutional right to grow and maintain a beard on religious grounds (specifically as a practicing Muslim), contrary to the force's dress and appearance regulations.
1. Art. 33 of the Constitution of India: Empowers Parliament to restrict or abrogate the Fundamental Rights of members of the Armed Forces to ensure the proper discharge of their duties and the maintenance of discipline among them.
2. Regulation 425 of the Armed Forces Regulation, 1964: Governs the growth of hair and facial hair for Air Force personnel.
3. Rule 15(2)(g)(ii) of the Air Force Rules, 1969: Pertains to the discharge of personnel from service for non-compliance with discipline and force policies.

The Supreme Court upheld the High Court's order, validating the Air Force's decision to discharge the appellant from service. The Court's ruling was founded on a number of important considerations::

1. Purpose of Appearance Regulations
2. Failure to Meet the Exception Criteria
3. Safety and Secular Discipline

The Commanding Officer acted fully within his jurisdiction. Personal religious assertions cannot override the secular, uniform discipline required by the state under Art. 33 for the nation's defence forces.

 

Detailed Analysis

Art. 34 of the Constitution of India provides a limited exception to the fundamental rights guaranteed under Part III, specifically in the context of martial law. It authorizes Parliament to enact laws that indemnify persons acting in the maintenance or restoration of order during martial law and to validate acts, sentences, or punishments carried out under martial law in areas where it is in force. This provision is not a declaration of martial law itself but a legislative safeguard that ensures legal continuity when civil authority is suspended due to martial law, thereby protecting individuals and acts performed during such extraordinary circumstances

Art. 34 is intended to ensure that legal continuity is maintained in the event that a region is under martial law and the ordinary constitutional governance is effectively suspended. Its function is not to create martial law, but to permit Parliament to retrospectively protect persons who acted to restore order and to validate certain martial-law acts that would otherwise be vulnerable under ordinary law. Because the article begins with a non obstante clause, it overrides the ordinary operation of Part III to the extent Parliament legislates under it.

Key Takeaways

Art. 34 authorizes Parliament to enact laws indemnifying persons and validating acts during martial law, serving as a limited safeguard in emergencies. It has remained unchanged since the Constitution's adoption and is primarily a legislative tool to ensure legal continuity during extraordinary circumstances involving martial law.

Amendments:

No Amendments in Art. 34 post its enactment.

Case Laws

1. ‘ADM, Jabalpur v. UOI Case in (1976), ‘ where the Supreme Court examined the validity of acts under martial law and the scope of legislative validation under Art. 34,
2. ‘Justice K S Puttaswamy (Retd.) v. UOI case in (2017), ‘where primarily about privacy, discusses the broader constitutional framework including emergency provisions.

Legal Analysis

Through Art. 35 , The Constitution of India frames and limits the jurisdiction of Parliament to lawmaking under Part III (Fundamental Rights), balancing the individual right and the interest of the state and the discipline in public services.

1. Art. 35 vests parliament with the power to make laws in respect of the Part III rights that are necessary for the enforcement or regulation of those rights or the punishment of offences in respect of those rights.
2. The legislative purpose behind Article 35 was to arm Parliament with the power to make laws that will enforce, punish or regulate the offenses against the Fundamental Rights, especially where Fundamental Rights touch upon sensitive issues like equality and enforcement of remedial provisions. Also, it maintains continuity with pre- Constitution laws until Parliament repealed them which was indicative of transitional and continuity purpose and not a complete legislative vacuum.

Detailed Analysis

Art. 35 is a legislative entry clause that gives Parliament exclusive power over the specified matter connected with Fundamental Rights, leaving no space to the State legislatures to make such laws in that field. In other words, the entry was made in the list of powers of Parliament to the exclusion of the powers of the State legislatures to make laws relating to the enforcement of rights that need uniformity such as that which is provided in the Arts. 16 (3), (33), (34) and offense relating to Part III. Art.35 also preserves pre-Constitution laws in the field of specified matter, until Parliament either repeal or amend them, which shows the transitional provision and not completely legislative vacuum.

The legislative intent behind Art.35 is to give power to the Parliament to make law in relation to the rights granted and provided in the Constitution. The Constitution contemplates exceptions, qualifications, or, the enforcement machinery in relation to the Fundamental Rights. This is to provide for the effective realization of the rights granted under the Constitution. Art.35 will serve as significant to constitutional structure, as it provides for the rights and also the realization of those rights, especially in respect of sensitive provisions in the Constitution. In other words, the provision under Art. 35 is designed to enforce the rights guaranteed by the Constitution. The Constitution lays down that rights such as equality and remedies and in the offenses for Part III would need the machinery and exception and qualification. Article 35 provides for an enforceable legal machinery for enforcing Fundamental Rights and this provision helps balance and reconcile the guaranteed right of the individual with the constitutional requirement of national uniformity, especially in the fields of equality and remedies. It prevents fragmentation of law that implements Fundamental Rights.

Legal Interpretation

Art. 35 is framed as a ‘notwithstanding” Clause and it provides to Parliament exclusively the power over the matters of Part III.

Practical implications:

A legal provision that has come up for interpretation is that any law made under Art. 35 will form the constitutional machinery to enforce or punish violations of rights, and at the same time the legal provision that any provision of a law relating to a matter to which Part III applies can be made by Parliament. Thus, Article 33 authorizes restriction of service for enforcing service discipline for forces mentioned in the said article

Key Takeaways

Art. 35 of the Indian Constitution outline the extent of Parliament’s legislative power in relation to Fundamental Rights and while Art.35 grants power of lawmaking for enforcement of and offenses against Fundamental Rights, 33 empowers Parliament to pass laws for the restriction of rights in connection with disciplined services. The Courts have emphasized the restrictions to be reasonable and to serve institutional interests.

Art. 35 post its enactment, No Amendments.

Case Laws:

1. In ‘The Director Of Industries & Commerce, Hydrabad v. Venkata Reddy (1973) case, ‘
   There was a question with regard to the Mukti Rules. From the authority of Nijam of Hydrabad the question was - valid? and after Contitution enactment continues same? The Supreme Court read the Art. 35(b) to conclude.
   Conclusion: The terms "laws in force in the territory of India" are also found in Art. 372 which continue in force existing Laws which existed not only in the Provinces of British India but in all Indian States. It would be contradictory if it was not like this. The question that arises for consideration in the context of Art. 372 is not whether 'the State of Hyderabad' was a part of the territory of India before the beginning of the Constitution but whether its territory is included in India after the commencement of the Constitution. The same standard applies to the ancient Provinces or part of Provinces of India-British.