Fundamental Rights: Definition of State and the Right to Equality (Articles 12–18)

Why Fundamental Rights matter

Part III of the Constitution (Articles 12–35) is called the Magna Carta of India. The rights are "fundamental" because they are protected by the Constitution itself, are essential for the all-round development of the individual, and are justiciable – a person can go directly to the Supreme Court under Article 32 if they are violated. They limit the power of the State and protect individuals and minorities against the tyranny of the majority.

The original Constitution had seven Fundamental Rights. The right to property (Article 31) was removed by the 44th Amendment Act, 1978 and made a legal right under Article 300A in Part XII. Today there are six:

1. Right to Equality (Articles 14–18)
2. Right to Freedom (Articles 19–22)
3. Right against Exploitation (Articles 23–24)
4. Right to Freedom of Religion (Articles 25–28)
5. Cultural and Educational Rights (Articles 29–30)
6. Right to Constitutional Remedies (Article 32)

General features

• Some rights are available only to citizens (Articles 15, 16, 19, 29, 30), while others are available to all persons, including foreigners and legal persons such as companies (for example, Articles 14, 20, 21, 22 and 25).
• They are not absolute – the State can impose reasonable restrictions, and courts decide what is reasonable.
• Most are negative (they restrict the State), but some are positive (they require the State to act, such as Article 21A on education).
• Some are available against private individuals too (Articles 15(2), 17, 23 and 24).
• They can be suspended during a national emergency, except Articles 20 and 21 (after the 44th Amendment).
• Their application can be restricted where martial law is in force (Article 34) and for the armed forces, police and intelligence agencies (Article 33).

Article 12: definition of "State"

Rights in Part III are mainly enforceable against the "State", which includes: the Government and Parliament of India; the government and legislature of each state; all local authorities (municipalities, panchayats, district boards, improvement trusts); and all other authorities (statutory or non-statutory bodies like LIC, ONGC and SAIL). In Ajay Hasia (1981) the Supreme Court laid down tests to decide whether a body is an "instrumentality or agency of the State" – financial resources from the government, deep and pervasive state control, functions of public importance, and whether the body was a government department transferred to a corporation. In the Zee Telefilms case (2005) the Court held that the BCCI is not "State" under Article 12, although it performs public functions and can be challenged under Article 226.

Article 13: laws inconsistent with Fundamental Rights

Article 13 declares that all laws – pre-constitutional and post-constitutional – that are inconsistent with or in derogation of Fundamental Rights are void to that extent. This expressly provides for judicial review, which the Supreme Court and High Courts exercise. "Law" includes Acts, ordinances, orders, bye-laws, rules, regulations, notifications and customs or usages having the force of law. Article 13(4), added by the 24th Amendment (1971), says that a constitutional amendment is not a "law" under Article 13 – but in Kesavananda Bharati (1973) the Court held that amendments can be challenged if they violate the basic structure.

Two doctrines arise here:

• Doctrine of eclipse: a pre-constitutional law that violates a Fundamental Right is not dead but dormant; if the right is later amended, the law revives.
• Doctrine of severability: only the offending part of a law is struck down if it can be separated from the rest.

Article 14: equality before law and equal protection of laws

"The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

• Equality before law (British origin) is a negative concept: no person is above the law – the rule of law described by A.V. Dicey (absence of arbitrary power, equality before law, and the Constitution as the result of individual rights).
• Equal protection of laws (American origin) is a positive concept: equals must be treated equally and unequals differently.
• Article 14 permits reasonable classification but forbids class legislation. The classification must rest on an intelligible differentia and have a rational nexus with the object of the law.
• In E.P. Royappa (1974) and Maneka Gandhi (1978) the Court held that Article 14 strikes at arbitrariness – an arbitrary action is unequal by nature.

Exceptions include immunities of the President and Governors (Article 361), privileges of MPs and MLAs (Articles 105 and 194), foreign sovereigns and diplomats under international law, and Article 31C (laws giving effect to certain Directive Principles).

Article 15: prohibition of discrimination

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. Article 15(2) also applies to private persons regarding access to shops, restaurants, hotels and places of public entertainment, and the use of wells, tanks, bathing ghats and roads maintained by the State or dedicated to public use.

Exceptions that allow special provisions:

• 15(3): for women and children (e.g. free education for children, reservation for women in local bodies).
• 15(4): for socially and educationally backward classes, SCs and STs (added by the 1st Amendment, 1951 after the Champakam Dorairajan case).
• 15(5): reservation in educational institutions, including private ones (aided or unaided), except minority institutions (93rd Amendment, 2005).
• 15(6): up to 10% for economically weaker sections (EWS) (103rd Amendment, 2019), upheld in Janhit Abhiyan (2022).

Article 16: equality of opportunity in public employment

• 16(3): Parliament may prescribe residence as a condition for certain posts in a state.
• 16(4): reservation for backward classes not adequately represented in state services.
• 16(4A): reservation in promotion for SCs and STs (77th Amendment, 1995), with consequential seniority (85th Amendment, 2001).
• 16(4B): unfilled reserved vacancies of a year can be carried forward; the 50% ceiling applies separately to each year's vacancies (81st Amendment, 2000).
• 16(5): offices of religious institutions may be reserved for members of that religion.
• 16(6): up to 10% EWS reservation in appointments (103rd Amendment).

Indra Sawhney (1992) – the Mandal case – upheld 27% reservation for OBCs but excluded the creamy layer, fixed a general 50% ceiling (except in extraordinary situations), barred reservation in promotions (later restored for SCs/STs by the 77th Amendment) and held that reservation cannot be based on economic criteria alone (the EWS amendment later created a separate economic category, upheld in 2022). In M. Nagaraj (2006) the Court upheld reservation in promotion subject to quantifiable data on backwardness and inadequate representation and efficiency of administration; Jarnail Singh (2018) held that backwardness data for SCs/STs is not required. In State of Punjab v Davinder Singh (2024) a seven-judge bench held that states may sub-classify SCs for reservation.

Article 17: abolition of untouchability

Untouchability is abolished and its practice in any form is forbidden; enforcing any disability arising from it is an offence. The term is not defined in the Constitution or the law; the courts understand it as the social practice historically based on caste. The Protection of Civil Rights Act, 1955 (renamed from the Untouchability (Offences) Act in 1976) and the SC/ST (Prevention of Atrocities) Act, 1989 give effect to it. The right is available against private individuals too.

Article 18: abolition of titles

The State shall not confer titles except military or academic distinctions. Citizens may not accept titles from foreign states; foreigners holding offices of profit or trust need the President's consent. In Balaji Raghavan (1996) the Court upheld national awards (Bharat Ratna, Padma awards) as not "titles" – but they should not be used as prefixes or suffixes to names.

Common traps

• Article 14 is available to all persons; Articles 15 and 16 only to citizens.
• Article 15 forbids discrimination on "grounds only of" listed reasons; Article 16 adds descent and residence.
• The 50% ceiling comes from Indra Sawhney, not from the Constitution itself.
• Bharat Ratna is not a "title" under Article 18.