⚖️ Polity
01
Introduction to Fundamental Rights
& Articles 12–13
Articles 12, 13
Definition of State
Judicial Review
Features of FRs
⏱ ~30 min read
📋 5 PYQs
What are Fundamental Rights?
- Taken from the Bill of Rights (USA)
- Most elaborate chapter of fundamental rights among all constitutions
- Called the Magna Carta of India
- Aimed at establishing political democracy
- Protect against executive tyranny and arbitrary actions of the Legislature — embodying the ideal of 'a government of laws and not of men'
Which one of the following statements is correct?
- (a) Rights are claims of the State against the citizens.
- ✓ (b) Rights are claims of the citizens against the State.
- (c) Rights are privileges which are incorporated in the Constitution of a State.
- (d) Rights are privileges of a few citizens against the many.
✓ Correct: Rights are claims of the citizens against the State — guaranteeing protection from arbitrary state action. FRs put the individual above the state in specified domains.
✗ Why others fail: (a) inverts the direction — the State holds power, not rights against citizens here. (c) confuses rights with privileges; rights are guaranteed entitlements. (d) contradicts the universal character of FRs which apply to all citizens.
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Why called "Fundamental"? They are protected by the fundamental law of the country — the Constitution itself. They are also fundamental for the all-round development of an individual.
Key Features — Mnemonic: E9D FMS
- Not available to foreigners: Articles 15, 16, 19, 29 and 30 are for citizens only
- Reasonable restrictions: Not absolute but qualified — balance between individual liberty and social control
- Mostly against state actions: Most FRs operate against the State, not private parties
- Nature: Most are Negative (limitations on state authority); some are Positive (conferring privileges)
- Justiciable: Enforceable by the Supreme Court directly (Art 32) — no need to go through the way of appeal against smaller courts
- Not sacrosanct or permanent: Can be amended by Parliament (subject to basic structure)
In the context of India, which one of the following is the correct relationship between Rights and Duties?
- ✓ (a) Rights are correlative with Duties.
- (b) Rights are personal and hence independent of society and Duties.
- (c) Rights, not Duties, are important for the advancement of the personality of the citizen.
- (d) Duties, not Rights, are important for the stability of the State.
✓ Correct: Rights and Duties are inseparable — you cannot enjoy rights without fulfilling duties. The Swaran Singh Committee and Indian Constitution both reinforce this relationship.
✗ Why others fail: (b) Rights exist within a social contract, not independently. (c) Both rights and duties contribute to personality development. (d) Rights are equally important for state stability.
Exceptions & Special Provisions
| Article |
Provision |
Effect |
| 31A |
Savings for laws related to Estates |
Protects land reform laws from FR challenge |
| 31B |
Ninth Schedule |
Laws in 9th Schedule shielded from FR challenge |
| 31C |
DPSP supremacy (CA25) |
Laws giving effect to Art 39(b) & (c) DPSP override Art 14 & 19 |
| 33 |
Armed & Paramilitary Forces |
Parliament can modify/restrict FRs for forces |
| 34 |
Martial Law |
Parliament can indemnify acts during Martial Law |
| 35 |
Self-executory vs Legislative |
Some FRs need Parliamentary legislation for enforcement |
⚠️
UPSC Trap: Art 35 specifies that only Parliament (not State Legislatures) can make laws on Art 16, 32, 33, 34 and also Arts 17 and 23. State legislatures have no power here.
What is 'State' under Art 12?
The term 'State' has been defined broadly to ensure FRs apply against a wide range of public and quasi-public bodies:
- Executives & Legislatures of Central Govt & State Govt
- Local authorities (municipalities, panchayats etc.)
- All statutory AND non-statutory bodies — e.g., LIC, ONGC, nationalized banks
- Any private body or agency working as an instrument of the State
- PPP (Public-Private Partnership) entities — treated as State
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Judiciary does NOT come under 'State' for Art 12 purposes (except when making rules or acting in a non-judicial capacity). This is a critical distinction — judicially, courts are outside Art 12.
Which one of the following best defines the term 'State'?
- (a) A community of persons permanently occupying a definite territory independent of external control and possessing an organized government.
- ✓ (b) A politically organized people of a definite territory and possessing an authority to govern them, maintain law and order, protect their natural rights and safeguard their means of sustenance.
- (c) A number of persons who have been living in a definite territory for a very long time with their own culture, tradition and government.
- (d) A society permanently living in a definite territory with a central authority, an executive responsible to the central authority and an independent judiciary.
✓ Correct: Option (b) captures political organization + territory + authority to govern + protection of rights — the classical political science definition used in UPSC context.
✗ Why others fail: (a) is a sociological definition, misses rights protection. (c) describes a nation/cultural group, not a political State. (d) wrongly makes executive responsible to central authority.
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The broad definition of 'State' under Art 12 ensures that statutory corporations like ONGC, LIC, SBI cannot violate FRs of their employees or the public, even though they are not strictly government departments.
Article 13 — The Judicial Review Provision
Art 13 is the constitutional basis for judicial review — the power of courts to invalidate laws that violate Fundamental Rights.
- All pre-constitutional laws (existing at commencement of Constitution) that are inconsistent with FRs → void
- All future laws made by State → void to the extent of their inconsistency with FRs
- SC exercises judicial review under Art 32 and HC under Art 226
What counts as 'Law' under Art 13?
| Type of Law |
Examples |
Covered under Art 13? |
| Permanent laws |
Acts of Parliament / State Legislatures |
✅ Yes |
| Temporary laws |
Ordinances |
✅ Yes |
| Delegated legislation |
Orders, Bye-laws, Rules, Regulations, Notifications |
✅ Yes |
| Constitutional Amendments |
CA Acts by Parliament |
❌ No (but must not violate Basic Structure) |
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UPSC Trap: A Constitutional Amendment is NOT a 'law' under Art 13 and cannot be declared void for violating FRs per se — BUT it cannot damage the Basic Structure of the Constitution (Kesavananda Bharati, 1973).
One of the implications of equality in society is the absence of
- ✓ (a) Privileges
- (b) Restraints
- (c) Competition
- (d) Ideology
✓ Correct: Equality implies the absence of Privileges — when all persons are equal before law, no one enjoys special privileges based on birth, caste, or religion. This is the core of Art 14-18.
✗ Why others fail: (b) Restraints are necessary even in an equal society (reasonable restrictions on FRs). (c) Competition continues in an equal society. (d) Ideology does not disappear with equality.
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Excluded from foreigners (15,16,19,29,30)
9 — 9th Schedule (31B) protection
DPSP override via 31C
Forces — Art 33 (armed forces restrictions)
Martial Law — Art 34 (indemnity)
Self-executory vs needs legislation — Art 35
Part III — At a Glance
| Articles |
Right |
Key Note |
| 12–13 |
Definitions & Judicial Review |
Foundation of the entire Part III |
| 14–18 |
Right to Equality |
EBL (UK), EPL (USA), Anti-untouchability, Titles |
| 19–22 |
Right to Freedom |
SAAMRP (6 freedoms), Art 20 PDS, Art 21 personal liberty |
| 23–24 |
Right against Exploitation |
Forced labour, child labour (≤14 years) |
| 25–28 |
Right to Freedom of Religion |
CP3, EMPA, MARA |
| 29–30 |
Cultural & Educational Rights |
Minority institutions — Art 30, PRO benefits |
| 32 |
Right to Constitutional Remedies |
'Heart and soul' — 5 writs, Ambedkar's favourite |
📌
Rights Outside Part III: Art 265 (No taxation without law) · Art 300A (Right to Property — legal right) · Art 301 (Free trade throughout India) · Art 326 (Adult Suffrage). These are constitutional rights, not fundamental rights.
Which of the following statements are correct about the Constitution of India?
1. Powers of the Municipalities are given in Part IX A of the Constitution.
2. Emergency provisions are given in Part XVIII of the Constitution.
- (a) 1 only
- (b) 2 only
- ✓ (c) Both 1 and 2
- (d) Neither 1 nor 2
✓ Correct: Both statements are correct. Part IX A (Art 243P–243ZG) = Municipalities. Part XVIII (Art 352–360) = Emergency provisions.
✗ Why others fail: (a) and (b) are only partially correct. (d) is completely wrong as both facts are accurate.
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Linked concept: The criticism of FRs includes — Excessive Limitations, No social/economic rights, Unclear language, Suspendable during Emergency, Preventive Detention, Expensive remedy. These criticisms will come up in PYQs on DPSP comparison.
Fundamental Rights vs Directive Principles — Core Difference
| Dimension |
Fundamental Rights |
Directive Principles |
| Nature |
Negative (prohibit State from doing) |
Positive (direct State to do) |
| Enforceability |
Justiciable — enforceable by courts |
Non-justiciable — not enforceable |
| Democracy |
Establish Political democracy |
Establish Social & Economic democracy |
| Sanction |
Legal sanctions |
Moral and political sanctions |
| Focus |
Individual welfare (Individualistic) |
Community welfare (Socialistic) |
| Implementation |
Self-executing (no legislation needed for most) |
Require legislation to implement |
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Granville Austin described FR + DPSP as the 'Conscience of the Constitution'. Together they contain the complete philosophy of the Indian Constitution.