The underlying idea in entrenching certain basic and Fundamental Rights is to take them out of the reach of transient political majorities. The concept of Human Rights protects individuals from the excesses of the State. Such guaranteed rights can be limited or taken away only by the elaborate and formal process of constitutional amendment rather than by ordinary legislation.

The modern trend of guaranteeing Fundamental Rights can be traced back to the Constitution of U.S.A. drafted in 1787. In modern times, the concept of people’s basic rights has been given a more concrete and universal texture by the Charter of Human Rights enacted by the United Nations Organization (U.N.O.) and the European Convention on Human Rights.

In India, a new trend is now visible wherein whilst interpreting the Fundamental Rights provisions in the Indian Constitution, the Supreme Court has drawn from the International Declarations on Human Rights.


There is need of Fundamental Rights in since the Indian society is fragmented into many religions, cultural and linguistic groups. Although democracy was being introduced in India, yet democratic traditions were lacking, and there was danger that the majority in the legislature may enact laws which may be oppressive to individuals and minority groups.

Articles 12 to 35 in Part III of the Constitution pertain to Fundamental Rights of the people. These have been grouped under seven heads as follows:

Right to Equality:

  1. 14: Equality before the law and equal protection of laws;
  2. 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth;
  3. 16: Equality of opportunity in matters of public employment;
  4. 17: Abolition of untouchability.
  5. 18: Abolition of titles.


Right to Freedom:

  1. 19: Protection of certain rights regarding freedom of speech and expression, assembly, association, movement, residence and profession;
  2. 20: Protection in respect of conviction for offences;
  3. 21: Protection of life and personal liberty;
  4. 21-A: Right to education
  5. 22: Protection against arrest and detention in certain cases.


Right against exploitation:

  1. 23: Prohibition of traffic in human beings and forced labour;
  2. 24: Prohibition of employment of children in factories, etc.


Right to freedom of Religion:

  1. 25: Freedom of conscience and free profession, practice and propagation of religion;
  2. 26: Freedom to manage religious affairs;
  3. 27: Freedom as to payment of taxes for promotion of any particular religion;
  4. 28: Freedom as to attendance at religious instruction or religious worship in certain educational institutions.


Cultural and Educational Rights:

  1. 29: Protection of interests of minorities;
  2. 30: Right of minorities to establish and administer educational institutions.
  3. 31-A: Saving of laws providing for acquisition of estates, etc;
  4. 31-B: Validation of certain Acts and Regulations;
  5. 31-C: Saving of laws giving effect to certain directive principles;
  6. 31-D: Saving of laws in respect of anti-national activities.


Right to Constitutional Remedies:

  1. Art. 32: Remedies for enforcement of Rights conferred by the Part by issuance of directions or orders or writs by the Supreme Court and High Courts for enforcement of these Fundamental Rights.

Since the Fundamental Rights constitute by and large a limitation on the government, it is most important for the Courts to achieve a proper balance between the rights of the individual and those of the state or the society as a whole, between individual liberty and social control. In these days of development of the country into a social welfare state, one could say that in the area of non-economic matters, like freedom of speech or the right to life, the line has been shifting in favour of the individual. While in the area of economic matters, the line has been constantly shifting in favour of social control. This has been achieved both by judicial interpretation as well as constitutional amendments.

Especially during the last two decades, the Supreme Court has displayed judicial creativity of highest order in interpreting the Fundamental Rights. It has even enunciated the doctrine of ‘implied Fundamental Rights’ which asserts that in order to treat a right as a Fundamental Right it is not necessary that it should be expressly stated in the Constitution as a Fundamental Right. Political, social and economic changes occurring in the country may entail the recognition of new rights.

A recent example of the application of this doctrine is the 86th Constitutional Amendment which enacts as follows:

  1. Insertion of a new Article 21-A, namely:- “Right to Education – the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”
  2. Substitution of new article for Article 45, namely:- “Provision of early childhood care and education to children below the age of six years.”


Article 13(1) declares that all pre-Constitution laws shall be void to the extent of their inconsistency with the Fundamental Rights. Such laws shall become void from 26-1-1950, the date on which the Constitution of India came into force.

According to Article 13(2), the State shall not make any law which takes away or abridges the Fundamental Rights. This Article deals with the post-Constitutional laws and makes those laws that are inconsistent, void ab initio, i.e., from its inception.

It confers a power as well as imposes an obligation on the courts to declare a law void if it is inconsistent with a Fundamental Right.

The Supreme Court has further bolstered its protective role under Art. 13(2) by laying down the proposition that judicial review is the ‘basic’ feature of the Constitution. This means that the power of judicial review cannot be curtailed or evaded by any future Constitutional amendment, as emphasized in Minerva Mills[1] and Kesavananda[2].

Some Fundamental Rights apply to all persons, citizens as well as non-citizens, such as: Arts. 14, 18, 20-25, 27, 28, and 32. Articles such as 15, 16 and 19 are enjoyed only by citizens[3].

A law inconsistent with a Fundamental Right of the former type is ineffective qua[4] all persons. On the other hand, a law inconsistent with a Fundamental Right available to citizens only, is non-est[5] only qua citizens but not qua non-citizens who cannot claim the benefit of such Fundamental Right.

It is noteworthy that Article 13(1) is prospective and not retrospective. Therefore, a pre-Constitution law inconsistent with a Fundamental Right becomes void only after the commencement of the Constitution. Any substantive right and liabilities accruing under it prior to the enforcement of the Constitution are not nullified.

If the relevant Fundamental Right is amended such that the impugned Act becomes free from blemish and infirmity, the law would then cease to be unconstitutional and become revivified and enforceable. The Doctrine of Eclipse is applied only to pre-Constitutional laws and not to the post-Constitutional laws. The reason is that whilst the pre-Constitutional law was valid when enforced, the post-Constitutional law infringing a Fundamental Right is void ab initio i.e., unconstitutional and a nullity from its very inception.


According to Article 13, a law is void only “to the extent of the inconsistency or contravention” which means that a law inconsistent with a Fundamental Right is not void as a whole, but the Doctrine of Severability has to be applied and the offending portion of the law has to be severed from the valid part thereof. If, however, it is not possible to separate the valid from the invalid portion, then the whole of the statue will have to go[6].




It is an recognized idea that a person cannot waive his Fundamental Rights and Doctrine Of Non-Waiver has been developed by the Supreme Court of India patenting its role as a guardian of the Fundamental Rights.

In Basheshar Nath[7] the view was developed that Fundamental Rights cannot be waived by an individual as these are obligatory on the State and no civilian; by his act or conduct alleviate the State of the serious obligation forced on it by the Constitution.




Different degrees of rigidity attach to different portions of the Constitution, depending upon their importance and significance. The Constitution, accordingly, provides for the following three classes of amendments of its provisions:


  1. Constitutional provisions of comparatively less significance can be amended by the simple legislative process.
  2. Those provisions which are material and vital are made relatively stable and can be amended only by following the rule of special majority as laid down in Art. 368.
  • There are certain constitutional provisions relating to the federal character, which may be characterized as the ‘entrenched provisions, which need for their amendment, in addition to the passage of the amending Bill by the special majority in the two Houses of Parliament, ratification by half of the State Legislatures. This procedure is also laid down in Art. 368.



Articles 32 and 226 are the provisions of the Constitution that jointly endow with an effective guarantee that every individual has a fundamental right of access to courts. Article 32 confers power on the Supreme Court to enforce the fundamental rights. It provides a definite and quick remedy for enforcing the Fundamental Rights because a person can go straight to the Supreme Court without having to go endure the tardy process of proceeding from the lower to higher court. The Supreme Court is thus the protector and guarantor of the fundamental rights.

The High courts have a equivalent power under Article 226 to enforce the fundamental rights. Article 226 differs from Article 32 in that while Article 32 can be invoked only for the enforcement of Fundamental Rights, Article 226 can be invoked not only for the enforcement of Fundamental Rights but for any additional reason as well. This means that the Supreme Court power under Article 32 is constrained as compared with the power of a High Court under Article 226, for, if an administrative action does not affect a Fundamental Right, then it can be challenged only in the High Court under Article 226, and not in the Supreme Court under Article 32. Another corollary to this difference is that a PIL (Public Interest Litigation) writ petition can be filed in Supreme Court under Article 32 only if a question concerning the enforcement of a fundamental right is involved. Under Article 226, a writ petition can be filed in a High court whether or not a Fundamental Right is involved.


Are Fundamental Rights amendable?


Since 1951, a number of amendments have been effectuated in the Fundamental Rights. The worst affected Fundamental Right has been the Right to Property contained in Art.3, which has been amended several times. The constitutional validity of these amendments has been challenged a number of times before the Supreme Court. A brief overview of such cases before the Supreme Court is as follows:


THE NINTH SCHEDULE CASE: I.R. Coelho v. State of Tamil Nadu


The Bench of nine eminent judges, presided by Mr. Justice Y.K. Sabharwal, the then C.J.I. delivered an unanimous verdict in I.R. Coelho v. State of Tamil Nadu and others[8], also called “The Ninth Schedule Case” upheld the ‘Basic Structure Doctrine’, and the authority of the judiciary to review any such laws, which destroy or damage the basic structure as indicated in Art.21 read with Art.14, Art.19 and the principles underlying there under, even if they have been put in 9th Schedule after 14th April, 1973


Art. 19 (1) (f) guaranteed to every citizen the right to acquire any property by any lawful means such as inheritance, personal earnings or otherwise, and to hold it as his own and to dispose it freely, limited to such reasonable restrictions, which may not be in excess of the requirement of the interest of the general public. Secondly, Art.31 (1) guaranteed that no person shall be deprived of his property saved by the authority of law. Any property seized without proper legal authority was to be released at the intervention of the Court. A subject could not be deprived of his property by an executive order. Thirdly Art.31 (2) enjoined that if the State wants to acquire private property, it could do so by acquisition or requisition for public purpose and by payment to the owner by fixing the amount or specifying the principle upon it, it is to be determined.


The growth of socialist order by the then government of Pt. Jawahar Lal Nehru was not achievable without huge acquirement of land. The right to property thus became threat to our socialistic pattern.


The first constitutional amendment in 1951 exceptions were added to Art.31 (2) and Art.31-A. 31-C was inserted. The first amendment also added in 9th Schedule to the Constitution with reference to Art.31-B purportedly to save those legislations dealing with land reforms, which were struck down by the Court. The amended Art.31-A provided that

notwithstanding anything contained in Art.13, no law providing for acquisition by the State of any estate or any rights, taking over of the management of any property by the State for a limited period either in public interest shall be deemed to be void on the ground that it is inconsistent with or takes away or approaches any of the rights conferred by Art.14 or Art.19 of the Constitution of India. The State law in this regard was to receive this status only after receiving assent of the President.


Article 31-B validated certain acts and regulations if without prejudice to the generality of the provision in Art.31-A they were put under 9th Schedule, and that the provisions thereof shall not be deemed to be void on the ground that they are inconsistent with, or take away or abridge any of the rights conferred by Part III of the Constitution. The

Amendment avoided the clash of such legislations with courts.


The 4th, 5th and 25th and then 42nd amendment during the emergency in 1975 put the laws of acquisition of the State or other intermediate interest in land beyond scrutiny of fundamental rights, the directive principle of state policy or even basic structure of the Constitution.


In I.C.Golak Nath and Ors. Vs. State of Punjab (1967) a majority of 6:5 overruled Shankari Prasad and Sajjan Singh holding that constitutional amendment is law within the meaning of Art.30 and if it takes away or abridges any rights conferred by part III, it is void. The judgment was made prospective with effect from the date of decision (27th Feb. 1967).


I.C. Golak Nath resulted into 24th amendment (1971): adding Art.13 (4), that the article shall not apply to any amendment of the Constitution under Art.368. The 24th amendment (1971) made an attempt to supersede Golaknath case putting the validity of constitutional amendment on the ground that it takes away or affects fundamental right beyond the pail of judicial scrutiny.


This 24th amendment was challenged in Kesavananda Bharti case (1973) before 13 judges. The majority by 7:6 overruled the 24th amendment. The validity of Clause 4 of Art.13 was also upheld. In the result the fundamental rights could be amended under Art.368 and the validity cannot be questioned on the ground that the act invades or encroaches fundamental rights. The Supreme Court, however, by a judicial innovation structured a ‘Basic Structure Doctrine’ and gave to itself power to review whether such an amendment would be ultra vires as it violates very structure of the Constitution. The Supreme Court without foreclosing the list of basic structure found following to be life and blood of the Constitution:-


  1. Supremacy of the Constitution.
  2. Rule of law.
  3. The principle of Separation of Powers.
  4. The objectives specified in the Preamble to the Constitution.
  5. Judicial review; Arts.32 and 226.
  6. The sovereign, democratic, republican structure.
  7. Freedom and dignity of the individual.
  8. Unity and integrity of the Nation.
  9. The principle of equality, not every feature of equality, but the quintessence of equal justice.
  10. The ‘essence’ of other Fundamental Rights in Part III.
  11. The concept of social and economic justice-to build a welfare State; Part IV in toto.
  12. The balance between Fundamental Rights and Directive Principles.
  13. The Parliamentary system of government.
  14. The principle of free and fair elections.
  15. Limitations upon the amending power conferred by Art.368.
  16. Independence of the Judiciary.
  17. Effective access to justice.
  18. Powers of the Supreme Court under Arts.32, 136, 141, 142.
  19. Legislation seeking to nullify the awards made in exercise of the judicial power of the State by Arbitration Tribunals constituted under an Act.



  1. Is it permissible to make the 9th Schedule immunized from the Judicial Review of the Supreme Court?
  2. Whether the Basic Structure test would include Judicial Review of Ninth Schedule laws on the touchstone of Fundamental Rights?


  1. Is it permissible to make the Ninth Schedule immunized from the Judicial Review of the Supreme Court?


Since, the Fundamental Rights form part of the Basic structure, consequently, each act added in the Ninth Schedule has to endure the Fundamental Rights test.


The Fundamental Rights test qualifies that the law etc. which has been added to the Ninth Schedule has to be examined, whether they are transgressing their border and violating the Part III of the Constitution. If observed that they are then, that law, rule or regulation would be considered inconsistent to the Fundamental Rights will be struck down.


It is established that authority of Judicial Review is part of basic structure of the constitution and cannot be taken away even by a constitutional amendment. It is the duties of the Supreme Court to uphold the constitutional principles and implements constitutional limitation as the decisive interpreter of the constitution. The degree of invasion is for the court to decide.



  1. Whether the Basic Structure test would include Judicial Review of Ninth Schedule laws on the touchstone of the Fundamental Rights?


The 9th Schedule contains 284 acts added by 11 constitutional amendments from 1951 to 1995 and omissions of three acts.


The accountability of constitutionality of all the laws is on the judiciary, in Art.32, Part III of the Constitution. The inclusion of an Act in 9th Schedule does not exclude the check of Part III including that of Art.32. The unimpeded and unchecked exercise of including acts in 9 Schedule, the number of which has gone up from 13 to 284 demonstrates the excessive power of legislature handicapping the judiciary. The deficiency of guidelines for exercising such supremacy means nonappearance of constitutional control, which results in degradation of constitutional supremacy and conception of parliamentary harmony.



The idea of Fundamental Rights have evolved ever since the Kesavananda Bharti case to give meaning to various aspects of life without which life is not worth living. Today, one of the most important aspects of Fundamental Right is Right to Health and Right to live in a clean environment, clean drinking water and food and to live a dignified life. The Supreme Court has gone ahead to say that mere animal existence does not amount to live. Life should be enjoyed with all it blessings thus this expanded form of fundamental rights have given us citizens power to ask for better heath and living conditions, since this all come under Right to Life enshrined under Article 21 of the Constitution of India.

[1] Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789

[2] Kesavananda v. State of Kerala, AIR 1973 SC 1461

[3] Constitution of India, 1950

[4] qua = in so far as; in the capacity or character of.

[5] non-est = non-existent

[6] Kameshwar Pd. v. State of Bihar, AIR 1962 SC 1166

[7] Basheshar Nath v. I.T. Commissioner, AIR 1959 SC 149

[8] I.R. Coelho (dead) by L.Rs. v. State of Tamil Nadu and others, AIR 2007 SC 861