Protection and Enforcements of Human Rights Notes | LL.M. Semester 2 | Mumbai University | munotes

Two things follow from that table.

Module III is the heaviest module by demand. The Armed Forces (Special Powers) Act is asked on both papers and the 1993 Act is asked four times across them. Nothing else on this syllabus comes close.

And this paper is examined case by case. Her rubric line says so, and she names two decisions in the questions themselves rather than leaving the candidate to choose.

What is bilingual, and what that is not

Every question is printed twice, in English and again in Marathi. That is a translation of the same question and not a separate one, so there are seven questions on each paper and not fourteen.

How this book is built

Four modules, 136 chapters.

Module I, 36 chapters: where the idea came from, the pre-constitutional demand for a bill of rights, Part III article by article, the Declaration set against it, Part IV, and what Part III still does not contain.

Module II, 29 chapters: what judicial activism is, public interest litigation and how locus standi was relaxed, the enlargement of article 21, the rights read into it, environmental jurisprudence, and the criticisms with the answers to them.

Module III, 38 chapters: articles 32 and 226 and the five writs, the Protection of Human Rights Act 1993 section by section, the State Commissions, Human Rights Courts, Special Courts, tribunals, the civil and criminal courts, and the Armed Forces (Special Powers) Act in full.

Module IV, 33 chapters: dualism and article 253, the reading-in doctrine, what India has ratified and reserved, the two Covenants, the Convention on the Rights of the Child and the four Indian statutes that reflect it, the caste disagreement, displacement and the land acquisition and forest rights statutes.

The completeness contract is declared in two files rather than read off the syllabus, because there is nothing on the syllabus to read it off. 493 provisions across sixteen instruments, and 88 concepts across the four labels. Every one of them has to appear in the finished book or the checker fails it.

Worked example

How to use this book for her paper.

Attempt four of seven. Every question carries twenty five marks and the same weight, so there is no reason to attempt the hardest one.

Cite cases. She asks for it in the rubric and names decisions in the questions. An answer on judicial activism with no case in it will not pass as a good answer whatever else it contains.

Expect AFSPA. It appeared on both 2025-26 papers. So did the 1993 Act, in different forms.

Expect a quotation. Five of the fourteen questions across the two papers open with one, three of them from Justice Bhagwati. The quotation is the frame for the answer, so use its words in the first paragraph.

What it does NOT mean

It does not mean the four labels are unimportant. They are the contract. The papers tell you what she does with them.

It does not mean the circular's title is a mistake in this repository. It is what MU printed, and the syllabus page reproduces it. The book follows the examination paper because that is the document the candidate is sitting.

And it does not mean two papers make a pattern. Two is enough to show what she emphasises and not enough to predict the next paper.

Quick revision

• Group IV Human Rights Law, Semester 2, Paper III, subject code 26916. Three hours, 100 marks, attempt any four of seven, equal marks, cite relevant case laws.
• Four printed labels, numbered 1 to 4, one to a module. Nothing else printed at all.
• The circular's title is defective: PROTECTION AND ENFORCEMENT OF HUMAN IN INDIA, missing RIGHTS. Her paper header prints Protection and Enforcements of Human Rights, and the book follows the paper.
• Two papers for 2025-26, not one. Set 1 is paper 16738, Set 2 is paper 16737. No printed date; a student's hand gives 08/07/2026.
• Module III is the heaviest by demand: AFSPA on both papers, the 1993 Act four times across them.
• The book is 136 chapters: 36, 29, 38 and 33 across the four modules.
• The contract is declared: 493 provisions, sixteen instruments, 88 concepts.

Test yourself

1. What does MU actually print for this paper, and what is wrong with it? She prints four topic labels, one to each of four modules, each carrying one credit: History and Development of Human Rights in Indian constitution; Judicial Activism and Development of Human Rights Jurisprudence; Enforcement of Human Rights; and Role of India in implementing International norms and standards. There are no sub-topics, no reading list, no cases named, no section ranges and no statute identified, for a four-credit paper examined over three hours for a hundred marks. Her topic numbering is in order, 1 to 4, which is worth noting because two other papers in this group print defective numbering.

What is wrong is the title. The circular prints PAPER III, PROTECTION AND ENFORCEMENT OF HUMAN IN INDIA (4 CREDITS), which is missing the word rights and adds the words in India that no other name for the paper carries. Her own examination paper header, printed identically on both 2025-26 sets, reads Protection and Enforcements of Human Rights, and that is the wording the syllabus tree, the question paper folder and every address on this site already use. Where the two disagree the examination paper wins, because that is the document the candidate is actually sitting.

2. What do the two 2025-26 papers tell you that the syllabus cannot? They tell you the weight of each module and the form the questions take. Across the two papers, the Armed Forces (Special Powers) Act 1958 is asked on both, once on its constitutional validity with the Naga People's Movement safeguards named in the question and once on its provisions against the Rule of Law. The Protection of Human Rights Act 1993 is asked four times across the two papers: its implementation as a whole, the State Commission, the National Commission, and by implication in the Special Courts question. That makes Module III the heaviest module by examined demand, and nothing else on the syllabus comes close.

They also tell you the form. Both papers instruct the candidate to attempt any four of seven questions, all carrying equal marks, and to cite relevant case laws. Five of the fourteen questions open with a quotation, three of them from Justice Bhagwati on public interest litigation, so the frame of the answer is given and should be used in the opening paragraph. Two decisions are named in the questions themselves, Chairman, Railway Board v. Chandrima Das and Naga People's Movement for Human Rights v. Union of India, which means a candidate who has not read those two is answering a different question from the one set.

3. Why is the completeness contract declared rather than read off the syllabus? Because there is nothing on the syllabus to read it off. The house rule is that a printed section range is the completeness contract and the Act is the outer boundary, but MU prints no range, no Act and no reading list here, so neither rule has anything to bite on. A book built from four labels alone would be a guess, and the guess would be invisible: nothing would fail, and the gaps would only appear in the examination hall.

So the contract is written down in two files. The provision half, instruments.json, declares sixteen instruments and 493 provisions, each scope carrying the reason it is drawn where it is in MU's own words or in the words of the papers she set. The concept half, syllabus-contract.json, expands the four labels into 88 concepts, each with the match forms the checker greps for. Both are proved against the plan before a chapter is written, and both are proved again against the finished book. That matters more on this group than anywhere else on the LL.M., because there are only seven examination paper files across all six of its subjects, so the usual practice of running the past papers over a finished book to find what was missed has almost nothing to run.

The classical and medieval Indian traditions carry duties owed to every person rather than rights held by them, which is a different grammar for a related idea. The obligation of the ruler, the prohibition on cruelty, the duty of hospitality and the treatment of the powerless all state the same protection from the other end.

And the modern Indian demand for rights is nationalist, not imported. The Constitution of India Bill of 1895, the Nehru Report of 1928 and the Karachi Resolution of 1931 all predate the Universal Declaration, and [The Pre-Constitutional Demand for a Bill of Rights] sets them out. Indians were demanding a justiciable bill of rights while the imperial power was explaining that such a thing was unsuited to Indian conditions.

Generations, and why the label is useful but leaky

The conventional division is into three.

First generation, civil and political: life, liberty, fair trial, expression, conscience, participation. Classically framed as claims that the State refrain from acting.

Second generation, economic, social and cultural: work, education, health, food, housing, social security. Classically framed as claims that the State act, and therefore as costing money.

Third generation, solidarity rights: development, environment, peace, self determination. Held collectively rather than individually, and the least settled of the three in law.

The label is leaky in three places and a good answer says so.

The chronology is wrong. The economic and social claims were being made at the same time as the civil ones and not a generation later.

The refrain-and-act distinction does not hold. A fair trial requires courts, judges, legal aid and prisons, all of which cost money; a right to food can be satisfied in part by the State simply not destroying a person's access to it.

And Indian law does not respect the boundary at all. The Supreme Court has read livelihood, shelter, health, food and education into article 21, which is a first generation article. [The Rights Read into Article 21] is the whole list.

Human rights and the law

A human right is a moral claim first and a legal right second, and the gap between the two is what this paper is about.

Where a legal system recognises the claim, it becomes enforceable and acquires a remedy, a forum and a limitation period.

Where it does not, the claim survives as a moral claim and as an argument for reform, which is what the campaign for the Protection of Human Rights Act 1993 was.

The Indian recognition happens in three layers, and the rest of this book follows them: Part III of the Constitution makes some of these claims fundamental rights, statutes such as the Protection of Human Rights Act 1993 build machinery around them, and international instruments India has ratified supply standards that the courts read in.

Worked example

Her Set 2 Q1 asks in terms for the distinction between human rights and fundamental rights.

Open with what a human right is, using the four features, because the distinction cannot be drawn until the first term is defined.

Then give the sources, briefly, showing that the idea is neither modern nor exclusively Western.

Then draw the distinction, which [Human Rights and Fundamental Rights: the Distinction] does in full.

Do not spend the answer on the generations. It is a classification, not an argument, and it is leaky. One paragraph is enough, and it should include the leak.

What it does NOT mean

It does not mean a human right is whatever a person wants. The claim has to be one held against power by virtue of being human, which excludes most preferences.

It does not mean a human right is unlimited. Almost every right in every instrument carries limits, and the argument is nearly always about where the limit sits rather than whether the right exists.

And it does not mean an unrecognised claim is not a human right. It means there is no legal remedy for it, which is a statement about the legal system and not about the claim.

Quick revision

• Four features: universal, held against power, inherent rather than granted, inalienable.
• Article 1 of the Declaration: all human beings are born free and equal in dignity and rights. The language of recognition, not conferral.
• Four sources: natural law; the charters (Magna Carta 1215, Petition of Right 1628, Bill of Rights 1689); the declarations of 1776 and 1789; and the response to the Second World War.
• The Indian strand is not borrowed: duty-framed classical traditions, and a nationalist demand running from 1895 through the Nehru Report 1928 to the Karachi Resolution 1931, all before the Declaration.
• Three generations: civil and political; economic, social and cultural; solidarity. The label leaks in three places: the chronology, the refrain-and-act distinction, and Indian article 21 jurisprudence.
• Three layers of Indian recognition: Part III, the statutes, and the ratified instruments read in.

Test yourself

1. What makes a claim a human right rather than some other kind of right? Four features together. It is universal, belonging to every person because they are a person and not because of citizenship, employment, membership or contract, which is what separates it from the great mass of ordinary legal rights. It is held against power, principally against the State or against whoever else is strong enough to deny it, rather than being a claim against a neighbour of the kind private law handles. It is inherent rather than granted, so the claim is understood to exist before the document that records it, which is why article 1 of the Universal Declaration says that all human beings are born free and equal in dignity and rights rather than saying that they are hereby given those rights. And it is inalienable, meaning it is not forfeited by bad conduct and cannot be surrendered, which is precisely why the prisoner cases matter: if a convicted person kept nothing, the claim would be a reward for good behaviour rather than a right.

Missing any one of the four changes the character of the claim. A right that depends on status is a civil right, a right against a neighbour is a private law right, a right that exists only because a statute created it can be repealed without any moral remainder, and a right that can be forfeited is a privilege.

2. Where does the idea come from, and is it Indian? Four strands feed it and none of them is the sole origin. The natural law tradition supplies the crucial move of a standard above enacted law by which enacted law can be judged, which is what makes it possible to say that a validly passed statute is nonetheless wrong. The medieval and early modern charters, Magna Carta in 1215, the Petition of Right in 1628 and the English Bill of Rights in 1689, supply the form of a ruler accepting a written limit on their own power, though their content was a bargain between a king and a class and not universal at all. The declarations of 1776 in Virginia and America and of 1789 in France make the claim universal in language for the first time, and conspicuously not in application, since neither society extended it to the enslaved or to women. And the Second World War supplies the modern regime's animating fact, that a State can do monstrous things to its own population under its own valid law, which is why the post-war instruments are addressed to conduct inside a State's own borders.

It is also Indian, in two ways. The classical and medieval traditions state the same protection from the other end, as duties owed to every person and obligations binding on a ruler rather than rights held against one, which is a different grammar for a related idea. And the modern Indian demand is nationalist rather than imported: the Constitution of India Bill of 1895, the Nehru Report of 1928 and the Karachi Resolution of 1931 all demanded a justiciable bill of rights, and all of them predate the Universal Declaration of 1948 by decades. Indians were demanding these rights while the imperial power was explaining that such things were unsuited to Indian conditions.

3. What are the three generations, and where does the classification break down? First generation rights are civil and political: life, liberty, fair trial, expression, conscience and participation, classically described as claims that the State refrain from acting. Second generation rights are economic, social and cultural: work, education, health, food, housing and social security, classically described as claims that the State act, and therefore as costing money and requiring resources. Third generation rights are solidarity rights, development, environment, peace and self determination, held collectively rather than individually and the least settled of the three in law.

The classification breaks down in three places. The chronology is wrong, because economic and social claims were being pressed at the same time as civil and political ones and not a generation afterwards. The refrain-and-act distinction does not survive contact with either category, since a fair trial requires courts, judges, legal aid and prisons and is therefore expensive, while a right to food is partly satisfied by the State simply not destroying a person's existing access to it. And Indian law ignores the boundary entirely: the Supreme Court has read livelihood, shelter, health, food and education into article 21, which sits squarely in the first generation, so on this paper the classification describes the instruments rather than the law that is actually applied.

And some are nowhere. [What Part III Does Not Contain] takes the omissions in full.

The practical consequence is that the Indian answer to a second generation claim runs through article 21 rather than through Part IV, which is exactly what Module II is about.

Why the third category shrank

A candidate who leaves the distinction where the table leaves it has missed the Indian development.

The Supreme Court has moved a great deal of the third category into the first. Livelihood, shelter, health, food, education, a clean environment and privacy were human rights that were not fundamental rights in 1950, and are enforceable in India today because they were read into article 21.

So the boundary in India is not fixed and has moved in one direction only, and the mechanism by which it moved is [Due Process Read into a Constitution That Refused It].

Article 21A completed the journey for education, which travelled from a directive principle in article 45 to a fundamental right by amendment.

The other bridge: international law read in

The second mechanism is the interpretive one.

A convention India has ratified, which is not inconsistent with the fundamental rights and is in harmony with their spirit, is read into those rights to enlarge their meaning and content. That is the formulation MU quotes on Set 2 Q6, and [The Rule That a Convention in Harmony Is Read Into the Rights] takes it in full.

The effect is that a human right in a ratified treaty can become enforceable in India without any legislation at all, provided a fundamental right exists that it can be read into.

The limit is equally important. There must be a fundamental right for it to attach to, and there must be no inconsistent domestic law. Where India has ratified nothing and Part III says nothing, the doctrine has nothing to work with.

Why the distinction matters practically

Four consequences, and an answer that gives them is doing more than reciting a table.

Remedy. A violated fundamental right gets a writ. A violated human right that is not a fundamental right gets an argument.

Forum. Article 32 goes to the Supreme Court as of right. A human rights claim without a constitutional hook goes to a commission whose recommendations are recommendations.

Priority. A fundamental right defeats an inconsistent statute under article 13. A human right does not.

And the burden of the argument. Asserting a fundamental right requires proving the facts. Asserting a human right that is not one requires first persuading the court that it is inside article 21, which is a much larger task.

Worked example

Her Set 2 Q1, and the shape of the answer.

Open with her own sentence about the broader moral canvas and the specific legal guarantees.

Define both terms before comparing them.

Give the table, or its substance in prose.

Then give the three relationships, which is the part that shows understanding rather than memory.

Then the Indian development: the third category has shrunk, by article 21 and by article 21A, and the boundary has moved one way.

Then the reading-in doctrine as the second bridge.

Close on the four practical consequences, because the question is asked in a paper about protection and enforcement and the difference that matters is the difference in remedy.

What it does NOT mean

It does not mean fundamental rights are a subset of human rights. Most are, but article 19, article 18 and article 30 are not, so the two categories overlap rather than nest.

It does not mean a human right that is not a fundamental right is worthless in India. It can be read into article 21, it can be used to construe a statute, and it can ground a complaint to a commission.

And it does not mean the distinction is only Indian. Every domestic constitutional order draws some version of it; what is Indian is how far article 21 has been used to erase it.

Quick revision

• MU's frame, Set 2 Q1: human rights are the broader moral and international canvas, fundamental rights are specific legal guarantees protected under domestic constitutional law.
• Source, scope, enforcement, limits, amendment, remedy: the six columns of the distinction.
• Three relationships: most fundamental rights are human rights; article 19, 18 and 30 are fundamental rights that are not; and everything in Part IV is a human right that is not a fundamental right.
• Article 37: the Directive Principles are not enforceable by any court.
• The third category has shrunk, by reading rights into article 21 and by article 21A, and the boundary has moved one way only.
• The second bridge is the reading-in doctrine, which needs a fundamental right to attach to and no inconsistent domestic law.
• Four practical consequences: remedy, forum, priority under article 13, and the burden of the argument.

Test yourself

1. State the distinction between human rights and fundamental rights. Human rights are claims held by every person by virtue of being human, recognised in the international instruments and in morality, universal in scope, and typically enforced through reporting and review rather than through a court that can order a remedy. Fundamental rights are the subset of claims that a particular constitution has written down, made enforceable against the State, and protected against ordinary legislation. In India they are in Part III, they run against the State as defined in article 12, they are enforced directly by writ under article 32 and article 226, and by article 13 any law inconsistent with them is void to the extent of the inconsistency. Human rights change through treaty and custom; fundamental rights change by constitutional amendment, and even then subject to the basic structure.

The distinction is one of legal status and not of subject matter. The same claim, that a person shall not be arbitrarily deprived of life, is a human right in the Universal Declaration and a fundamental right in article 21, and the difference is not what it protects but what happens when it is broken.

2. Give the three relationships between the two categories, with examples. Most fundamental rights are also human rights. Life and personal liberty under article 21, equality before the law under article 14, protection in respect of conviction under article 20 and freedom of conscience under article 25 are all human rights that India chose to write into Part III, and their Indian content is the international content plus whatever the courts have added.

Some fundamental rights are not human rights, because they turn on status or on a particular constitutional policy rather than on being a person. Article 19's six freedoms belong to citizens only, as do articles 15 and 16, so in Indian law they are civil rights rather than human rights. Article 18's abolition of titles is a policy about the shape of Indian society. Article 30's guarantee to minorities to establish and administer educational institutions is a group right belonging to a particular settlement.

Some human rights are not fundamental rights, and this is the largest category. Everything in Part IV falls here: a living wage, equal pay for equal work, free legal aid, public assistance in old age, nutrition and public health are all human rights internationally and directive principles in India, and by article 37 they are not enforceable by any court. Others are in neither place.

3. How has the Indian boundary moved, and by what mechanisms? It has moved in one direction only, and by two mechanisms. The first is judicial: the Supreme Court has read into article 21 a series of claims that were human rights but not fundamental rights in 1950, including livelihood, shelter, health, food, education, a clean environment and privacy. The route was the construction of article 21 to require that any procedure depriving a person of life or personal liberty be fair, just and reasonable, and the construction of life to mean more than mere animal existence, extending to the right to live with human dignity. Once that was established, a claim previously confined to Part IV could be brought inside Part III and enforced by writ. Article 21A completed the journey for education by amendment rather than construction, moving it from the directive in article 45 to a fundamental right.

The second mechanism is interpretive. A convention that India has ratified, which is not inconsistent with the fundamental rights and is in harmony with their spirit, is read into those provisions to enlarge their meaning and content. That allows a human right in a ratified treaty to become enforceable in India without any implementing legislation. Its limit is that there must be a fundamental right for the treaty standard to attach to and no inconsistent domestic statute, so where India has ratified nothing and Part III says nothing, the doctrine has no work to do.

The Karachi Resolution, 1931

The Congress session at Karachi in March 1931 adopted the Resolution on Fundamental Rights and Economic and Social Change.

This is the document that explains the shape of the Indian Constitution, and it should be given weight for one reason above all others: it put civil and political claims and economic and social claims in one list, on the same footing.

Its civil and political content included freedom of expression, association and assembly, freedom of conscience and religion, equality before the law irrespective of caste, creed or sex, no disability on grounds of religion or caste, free and compulsory primary education, and the right to bear arms subject to regulation.

Its economic and social content included a living wage, limited working hours, protection against the economic consequences of old age, sickness and unemployment, protection of women workers, the abolition of serfdom, and the State ownership or control of key industries.

Twenty years later that single list was split in two, and the civil half became Part III while the economic half became Part IV. [Why the Social and Economic Rights Went into Part IV] is that split.

The Sapru Committee Report, 1945

The Committee chaired by Sir Tej Bahadur Sapru proposed a division of rights into justiciable and non-justiciable categories.

That is the proposal the Constituent Assembly adopted, and it is the direct structural ancestor of Parts III and IV. A candidate who can name the source of the two-part structure is doing better than one who treats it as an Irish borrowing alone.

What the imperial power said, and why it lost

The Simon Commission reported against a justiciable declaration of rights.

The Joint Parliamentary Committee that preceded the Government of India Act 1935 agreed, and the reasoning was that abstract declarations are either so heavily qualified as to be useless or so absolute as to be unworkable, and that in a country of India's diversity they would generate litigation rather than protection.

So the 1935 Act, which supplied a great deal of the Constitution's administrative structure, supplied none of its rights.

The Indian answer had two parts. A people that had been governed without rights had reason to want them written down and enforceable. And the argument that Indians were unsuited to enforceable rights was the same argument that had been used against every other extension of self government.

What this history contributes to the finished Constitution

Four things, and they are the marks in this question.

The insistence on justiciability, from the Nehru Report onwards, which is why Part III is enforceable and why article 32 exists.

The breadth of the list, from Karachi, which is why the Indian Constitution contains far more rights than the American one it is often compared to.

The two-part structure, from Sapru, which is why there is a Part IV at all.

And the specifically Indian entries. Untouchability in article 17, the prohibition on traffic in human beings and forced labour in article 23, and the prohibition on child labour in hazardous employment in article 24 are not in the American or the Irish model. They are in Part III because Indian social reform politics put them on the list decades earlier.

Worked example

Her Set 2 Q1 asks for the distinction between human rights and fundamental rights against the background of the history and development of human rights in India. The history is half the question.

Give the five documents in order with a line of content on each.

Give Karachi the most space, because the single combined list and its later split explain the structure of the Constitution.

Name Sapru as the source of the justiciable and non-justiciable division.

State the imperial position and the answer to it, because that is the argument the history is settling.

Close with the four contributions to the finished text.

What it does NOT mean

It does not mean the drafters borrowed nothing. They borrowed the writ jurisdiction, the due process debate, the directive principles device and much else; the point is that the demand and the content were Indian first.

It does not mean the 1895 Bill is securely attributed. It is not, and an answer that names an author with confidence is overstating the record.

And it does not mean the Karachi Resolution had legal force. It was a political resolution of a party, and its force is as evidence of what was wanted.

Quick revision

• 1895, Constitution of India Bill: earliest Indian list of rights. Authorship disputed, often associated with Tilak's circle. Expression, dwelling, property, equality, equality of opportunity, freedom from arbitrary arrest.
• 1925, Commonwealth of India Bill: National Convention associated with Annie Besant; introduced in the House of Commons and went nowhere. Liberty, conscience, expression, assembly, equality, free elementary education.
• 1928, Nehru Report: all-party committee under Motilal Nehru, answering the Simon Commission challenge. Nineteen fundamental rights, and they were to be JUSTICIABLE.
• 1931, Karachi Resolution: Congress session, March 1931, on Fundamental Rights and Economic and Social Change. Civil and economic claims in ONE list, later split into Parts III and IV.
• 1945, Sapru Committee: proposed the division into justiciable and non-justiciable rights, the direct ancestor of the two-part structure.
• The imperial position: the Simon Commission and the Joint Parliamentary Committee both against; the Government of India Act 1935 contains no bill of rights.
• Four contributions: justiciability, breadth, the two-part structure, and the Indian entries in articles 17, 23 and 24.

Test yourself

1. Trace the pre-constitutional demand for a bill of rights. It runs for half a century. The Constitution of India Bill of 1895, sometimes called the Swaraj Bill and of disputed authorship though often associated with Tilak's circle, is the earliest Indian draft constitution and the earliest Indian list of rights, claiming freedom of expression, inviolability of the dwelling, property, equality before the law, equality of opportunity in the public services and freedom from arbitrary arrest. The Commonwealth of India Bill of 1925, drafted under the National Convention associated with Annie Besant, was actually introduced in the House of Commons and declared liberty of the person, freedom of conscience and religion, free expression, free assembly, equality before the law and free elementary education.

The Nehru Report of 1928, produced by an all-party committee under Motilal Nehru in answer to the challenge that accompanied the Simon Commission, is the most important of them: it set out a declaration of nineteen fundamental rights and insisted that they be justiciable, which was the precise thing the imperial position denied. The Karachi Resolution of March 1931 put civil and political claims alongside economic and social ones in a single list on the same footing, covering expression, association, conscience, equality irrespective of caste, creed or sex, and free primary education on one side, and a living wage, limited hours, protection in old age, sickness and unemployment, protection of women workers and the abolition of serfdom on the other. The Sapru Committee of 1945 then proposed dividing rights into justiciable and non-justiciable categories, which is the structure the Constituent Assembly adopted.

2. What did the imperial power say, and what turned on the disagreement? The British position, maintained to the end, was that a justiciable declaration of rights was unsuitable for India. The Simon Commission reported against one, and the Joint Parliamentary Committee that preceded the Government of India Act 1935 agreed. The reasoning was that abstract declarations are either so heavily qualified as to be useless or so absolute as to be unworkable, and that in a country of India's diversity they would produce litigation rather than protection. The consequence was that the 1935 Act, which supplied a great deal of the eventual Constitution's administrative machinery, supplied none of its rights.

What turned on it was the whole character of Part III. The Indian answer was that a people governed without rights for a very long time had particular reason to want them written down and enforceable, and that the argument about unsuitability was the same argument that had been used against every previous extension of self government. Because the Indians won that argument, Part III is justiciable, article 13 makes an inconsistent law void, and article 32 is itself a fundamental right. Had the imperial position prevailed, India would have had a constitution with rights stated as principles of policy and no remedy attached, which is what Part IV actually is.

3. What does this history contribute to the text of the Constitution? Four things. The insistence on justiciability, pressed from the Nehru Report onwards, is why Part III is enforceable against the State, why article 13 voids inconsistent laws, and why the remedy in article 32 is itself made a fundamental right rather than left to ordinary procedure. The breadth of the list, which comes from Karachi, is why the Indian Constitution contains far more rights than the American document it is usually compared with, and why so many of them carry their limitations on their face.

The two-part structure comes from the Sapru Committee's proposal to divide rights into justiciable and non-justiciable, which is why there is a Part IV at all and why the Karachi list ended up split down the middle. And the specifically Indian entries come from Indian social reform politics rather than from any foreign model: the abolition of untouchability in article 17, the prohibition of traffic in human beings and forced labour in article 23, and the prohibition of child labour in hazardous employment in article 24 appear in no American or Irish precedent and are in Part III because Indians had been demanding them for decades.

The Assembly replaced due process with "procedure established by law", a formula taken from article 31 of the Japanese Constitution of 1946.

The change was deliberate and was understood at the time. Members argued about it, some warning that it left personal liberty at the mercy of the legislature.

The consequence lasted until the late 1970s. On the narrow reading, article 21 required only that there be a law and that the procedure it prescribed be followed; it did not permit the court to ask whether that procedure was fair. [How Article 21 Was Enlarged] is the story of how that reading was abandoned, and the irony worth stating is that the Supreme Court eventually read into article 21 very nearly the thing the Assembly had deliberately removed.

What the Assembly argued about, and settled

Four other debates are worth a sentence each.

Property. The right to property was included as article 31 and became the most amended provision in the Constitution before being removed from Part III altogether in 1978.

Preventive detention. Article 22(3) to (7) permits it, and the Assembly put it into the Constitution because it expected to need it. This is the clearest instance of the drafters writing an exception into a right rather than leaving it to the legislature.

Article 33 and the armed forces. Parliament may restrict or abrogate the fundamental rights in their application to the armed forces and to forces charged with maintaining public order. That article is the constitutional root of the problem Module III has with the Armed Forces (Special Powers) Act.

Untouchability. Article 17 abolishes it and makes its practice an offence, which makes it the only fundamental right that creates a crime and one of the few that operates against private persons.

What the Assembly did not do

It did not make the economic and social claims enforceable, and that decision is examined separately in [Why the Social and Economic Rights Went into Part IV].

It did not include a general right against private power. Part III runs against the State as defined in article 12, with a handful of exceptions.

And it did not entrench Part III against amendment. Article 368 permits amendment, and the limits on that power were built by the courts three decades later rather than written by the Assembly.

Worked example

A question on the history and development of human rights in the Indian Constitution.

Start with the Objectives Resolution and quote its promise, because it is the bridge from the nationalist demand to the drafted text.

Name the machinery: Advisory Committee under Patel, Sub-Committee under Kripalani, Rau as Constitutional Adviser, Drafting Committee under Ambedkar.

Give the justiciability decision and Ambedkar on article 32.

Give the due process debate in full, because it is the piece of history that still determines how article 21 is read today.

Give the four settled debates briefly.

Close on what the Assembly did not do, which is the transition to Module II.

What it does NOT mean

It does not mean the drafters were hostile to the social and economic claims. They put them in Part IV and called them fundamental in the governance of the country.

It does not mean the due process change failed. It worked exactly as intended for nearly thirty years, and what changed was the Court's approach and not the words.

And it does not mean Part III is a copy of any single foreign model. The list is Indian, the remedy is drawn from the English writs, the due process debate is American, the directive principles device is Irish, and the words of article 21 are Japanese.

Quick revision

• Objectives Resolution: moved by Nehru 13 December 1946, adopted 22 January 1947. Justice social, economic and political; equality of status, of opportunity and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action.
• Advisory Committee under Sardar Patel; Fundamental Rights Sub-Committee under J. B. Kripalani; B. N. Rau Constitutional Adviser; Drafting Committee under Ambedkar.
• The Sapru division adopted: justiciable rights to Part III with article 13 and article 32; non-justiciable to Part IV, where article 37 says they are not enforceable by any court.
• Ambedkar on article 32: the very heart and soul of the Constitution.
• Due process debate: the draft said due process of law; Rau consulted Frankfurter, who warned it would let judges strike down social legislation; the Assembly substituted procedure established by law, from article 31 of the Japanese Constitution of 1946.
• Four settled debates: property in article 31, later removed; preventive detention written into article 22; article 33 on the armed forces; article 17 on untouchability, the only fundamental right creating an offence.
• Three things not done: no enforceable economic rights, no general right against private power, no entrenchment against article 368.

Test yourself

1. How did the Constituent Assembly organise the work on rights, and what did it decide about enforceability? The Objectives Resolution, moved by Nehru on 13 December 1946 and adopted on 22 January 1947, set the terms by promising to all the people of India justice, social, economic and political, equality of status, of opportunity and before the law, and freedom of thought, expression, belief, faith, worship, vocation, association and action subject to law and public morality. That sentence is the seed of both the Preamble and Part III. The detailed work was done by an Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas under Sardar Vallabhbhai Patel, whose Sub-Committee on Fundamental Rights was chaired by J. B. Kripalani, with B. N. Rau as Constitutional Adviser preparing drafts and the Drafting Committee under Ambedkar producing the text for debate.

On enforceability the Assembly adopted the division the Sapru Committee had proposed, classifying rights as justiciable or non-justiciable. The justiciable ones went into Part III with a remedy attached: article 13 makes any inconsistent law void to the extent of the inconsistency, and article 32 gives a direct route to the Supreme Court and is itself made a fundamental right. Ambedkar called article 32 the article without which the Constitution would be a nullity, and described it as its very heart and soul. The non-justiciable ones went into Part IV, where article 37 states in terms that they are not enforceable by any court while remaining fundamental in the governance of the country.

2. Explain the due process debate and why it still matters. The draft of what became article 21 contained the American formula, that no person shall be deprived of life or liberty without due process of law. B. N. Rau, travelling in the United States, consulted Justice Felix Frankfurter, who advised against it. The objection was that due process handed an unelected court an undefined power to strike down social and economic legislation on its own view of what was reasonable, which the American courts had spent decades doing, and that a new country with a large programme of land reform and social legislation ahead of it should not give its judges that weapon. The Assembly accepted the advice and substituted the words procedure established by law, a formula taken from article 31 of the Japanese Constitution of 1946. The change was deliberate, was debated, and was understood at the time, with several members warning that it left personal liberty at the mercy of whatever procedure the legislature chose to prescribe.

It still matters because it determined how article 21 was read for nearly thirty years. On the narrow construction the article required only that a law exist and that its procedure be followed, and did not permit a court to ask whether the procedure was fair. That reading was abandoned in the late 1970s, when the Court held that the procedure must be fair, just and reasonable, which brought back in substance very nearly the thing the Assembly had deliberately taken out. Any answer on the enlargement of article 21 has to begin here, because the enlargement is only intelligible against what was removed.

3. What did the Assembly not do, and what followed from each omission? Three things. It did not make the economic and social claims enforceable, putting them in Part IV instead and declaring in article 37 that they bind the State as a duty in making laws while being unenforceable in any court. What followed was that the Supreme Court eventually enforced many of them anyway, by reading livelihood, shelter, health, food and education into article 21, so the omission shaped Indian constitutional method as much as Indian constitutional content.

It did not include a general right against private power. Part III runs against the State as defined in article 12, with a handful of exceptions such as article 17 on untouchability, article 23 on traffic in human beings and forced labour, and article 24 on child labour. What followed is that the great majority of human rights violations in ordinary life, by employers, by landlords, by families and by castes, reach the Constitution only indirectly, through a statute or through a duty placed on the State to act.

And it did not entrench Part III against amendment. Article 368 permits it, and the property right was in fact amended repeatedly and eventually removed from Part III altogether. The limits on that power, the basic structure doctrine, were built by the courts three decades later rather than written by the Assembly, which is why they remain contested in a way that a written entrenchment clause would not have been.

It ranks the rights. Putting liberty in Part III and food in Part IV says, in the structure of the document, that one matters more than the other, which is the opposite of the Karachi Resolution's premise.

And it invites evasion. A government that has done nothing about a directive for seventy years faces no legal consequence at all.

The answer to the criticism

Four answers, and the last is the strongest.

Article 37 is not nothing. The duty to apply the principles in making laws is a real duty, and a great deal of Indian social legislation is enacted under it and defended by reference to it.

They are used to construe statutes and rights. A Part IV principle is regularly used to resolve an ambiguity, and article 39A on legal aid and article 47 on nutrition and public health have both done heavy interpretive work.

They defeat a challenge. Legislation implementing a directive is upheld against a Part III challenge more readily, and articles 31A, 31B and 31C were inserted to protect exactly that legislation.

And the boundary has been crossed anyway. The Supreme Court has read directive principle content into article 21 and thereby made it enforceable: livelihood, shelter, health, food and education all began in Part IV. [The Interrelationship of Fundamental Rights and Directive Principles] traces the doctrine, and [Education: From a Directive to Article 21A] is the case where the crossing was later confirmed by amendment.

What Part IV contains

The heads worth knowing, and [The Contribution of the Directive Principles to Human Rights] takes them in detail.

Article 51(c) is the one Module IV cannot do without, and [Article 51(c), and the Duty to Foster Respect for International Law] is where it is taken.

Worked example

Her Set 1 Q7(a) asks for the contribution of the Directive Principles to the promotion of human rights, and Set 2 Q7(a) asks for the interrelationship. Both need this chapter first.

Quote article 37 in full, all three clauses.

Give the four reasons the Assembly divided the list.

Name the Irish source, and say what was and was not borrowed.

Give the three criticisms, fairly.

Give the four answers, ending on the boundary having been crossed by article 21.

Do not argue that Part IV is as good as Part III. It is not, and the examiner will not believe it. Argue that the division was defensible in 1950 and has been substantially undone since.

What it does NOT mean

It does not mean the Directive Principles are unenforceable in every sense. They cannot found a writ on their own; they can construe a right, defend a statute and enter article 21.

It does not mean the Assembly thought them unimportant. Article 37 calls them fundamental in the governance of the country, which is deliberate language.

And it does not mean Part IV is a dead letter. Most Indian welfare legislation is enacted under it, and a large part of the Supreme Court's article 21 jurisprudence is Part IV content arriving by another door.

Quick revision

• Article 37, three clauses: not enforceable by any court; fundamental in the governance of the country; and the duty of the State to apply these principles in making laws.
• Four reasons for the split: resources, progressive realisation, institutional competence, democratic legitimacy.
• Source: the Constitution of Ireland 1937. India borrowed the form, not the content or the weight.
• Three criticisms: a right without a remedy; the ranking it implies; and the evasion it permits. Jennings called them pious aspirations.
• Four answers: the duty in making laws is real; they construe statutes and rights; they defend legislation, protected by articles 31A, 31B and 31C; and the boundary has been crossed by article 21.
• Key articles: 39(d) equal pay, 39A legal aid, 41 work and public assistance, 42 maternity relief, 43 living wage, 45 early childhood, 47 nutrition and public health, 48A environment, 51(c) international law.

Test yourself

1. What does article 37 say, and why does the whole article matter rather than its first clause? Article 37 provides that the provisions contained in Part IV shall not be enforceable by any court, but that the principles laid down there are nevertheless fundamental in the governance of the country and that it shall be the duty of the State to apply these principles in making laws. Three clauses, and each does separate work. The first removes the remedy, so no writ lies to compel the State to provide a living wage or public assistance. The second gives the Part a constitutional status that ordinary policy documents do not have, describing the principles as fundamental in governance. The third imposes an affirmative duty on the State when it legislates.

Quoting only the first clause misreads the article and makes the rest of Indian constitutional development unintelligible. The second and third clauses are what allow a court to use a directive to resolve an ambiguity in a statute, to uphold welfare legislation against a Part III challenge, and eventually to read directive content into article 21 and thereby enforce it. A student who thinks Part IV is legally inert cannot explain why the right to livelihood, to shelter, to health, to food and to education are enforceable in India today, because every one of them began there.

2. Why did the Assembly put the economic and social claims in Part IV, and how fair are the criticisms? Four reasons. Resources: a right to work, a living wage, public assistance in old age and free legal aid all cost money that the Indian State in 1950 did not have, and a justiciable right the State cannot satisfy produces either judgments nobody obeys or a court effectively setting the budget. Progressive realisation: these claims are met by degrees over time rather than by a single act, so a court asked on a given day whether the right to health has been violated has no measurable standard to apply. Institutional competence: deciding how much of a limited budget goes to hospitals rather than schools is a judgment about priorities among competing goods, and courts have no method for making it. And democratic legitimacy: a programme of social transformation should be carried out by an elected legislature answerable for it, which is the same concern that produced the substitution of procedure established by law for due process.

The criticisms have force. A right without a remedy is not a right, and Jennings called the Principles pious aspirations. The division ranks the claims, saying in the structure of the document that liberty matters more than food, which reverses the premise of the Karachi Resolution that had put them in one list. And it invites evasion, since a government that has ignored a directive for seventy years faces no legal consequence. The fair conclusion is that the division was defensible in the conditions of 1950 and has been substantially undone since, mostly by the courts rather than by Parliament.

3. What did India take from the Irish Constitution, and what did it not take? India took the device: a set of directives addressed to the legislature, sitting beside justiciable rights in the same document and expressly excluded from the jurisdiction of the courts. The Constitution of Ireland of 1937 contains Directive Principles of Social Policy stated to be for the general guidance of the legislature and not cognisable by any court, and the Indian Part IV follows that form closely enough that the borrowing is not in doubt.

What India did not take was the content or the weight. The Irish provision is short and general; the Indian Part IV is long, specific and programmatic, naming a living wage, equal pay for equal work, free legal aid, maternity relief, nutrition, public health, the environment and the fostering of respect for international law. And article 37 gives it a status the Irish text does not claim, by declaring the principles fundamental in the governance of the country and by imposing a duty on the State to apply them in making laws. Those two additions are what later allowed Indian courts to give Part IV real interpretive force, so the borrowing is a starting point and not an explanation of what Part IV became.

Article 13(3) defines both terms widely. Law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law. Laws in force includes pre-constitutional legislation not previously repealed, even if not then in operation.

Article 13(4), inserted by amendment, provides that nothing in the article applies to an amendment of the Constitution made under article 368.

The four doctrines article 13 generates

Severability. Void to the extent of the inconsistency, so the offending part goes and the rest survives if it can stand alone.

Eclipse. A pre-constitutional law inconsistent with a fundamental right is not dead but overshadowed; if the inconsistency is removed by amendment, it revives. The doctrine applies straightforwardly to article 13(1) laws.

Waiver. A person cannot waive a fundamental right. The rights are not conferred for the individual's private benefit alone but as a matter of public policy, so consent does not cure a breach.

And the reach of custom. Because article 13(3)(a) includes custom and usage having the force of law, a customary practice can be struck down as violating a fundamental right, which matters a great deal in a country where a great deal of social ordering is customary.

Article 13(4) and the amendment question

The clause was inserted to put constitutional amendments beyond article 13.

It did not settle the question. The courts developed the basic structure doctrine, under which an amendment that damages or destroys a basic feature of the Constitution is invalid even though article 13(4) removes it from article 13. [The Amendments That Changed Part III] takes the sequence, and the point to hold here is that article 13(4) answers a textual question and not the constitutional one.

The shape of Part III

Article 31 itself is gone, removed from Part III by the Forty-fourth Amendment, and the right to property now sits in article 300A outside Part III.

Worked example

Any question on Part III should open with this architecture rather than with a particular article.

Give article 12 and its four limbs, and say that includes is not means.

Say what other authorities has been read to cover, with the tests, and note that a private body doing public functions may be inside it.

Give article 13(1) and (2), quoting void to the extent of the inconsistency.

Give the wide definition of law in 13(3)(a), because custom is in it.

Give the four doctrines.

Then state the structural limitation, that Part III does not generally bind private persons and that this is why Module III is a paper about statutes.

What it does NOT mean

It does not mean every public body is the State. The tests are about control and function, and a body can be public in ordinary speech and outside article 12.

It does not mean an inconsistent law is repealed. It is void to the extent of the inconsistency, which is why eclipse and severability exist.

And it does not mean article 13(4) protects every amendment. It removes amendments from article 13; the basic structure doctrine reaches them by another route.

Quick revision

• Article 12: the State includes the Government and Parliament of India, the Government and Legislature of each State, all local authorities, and other authorities within India or under the control of the Government of India. Includes, not means.
• Other authorities: statutory corporations and instrumentalities or agencies of the State, on tests of financial resources, deep and pervasive control, monopoly status, public importance, and transfer of a government department.
• Article 13(1): pre-constitutional laws void to the extent of the inconsistency. 13(2): the State shall not make any such law. 13(3)(a): law includes Ordinance, order, bye-law, rule, regulation, notification, custom or usage. 13(4): does not apply to an article 368 amendment.
• Four doctrines: severability, eclipse, no waiver, and the reach of custom.
• Part III does not generally bind private persons. Exceptions: 15(2), 17, 23, 24.
• Article 31 is gone; property is now article 300A, outside Part III.

Test yourself

1. Who does Part III run against, and how far does the definition stretch? Against the State as article 12 defines it: the Government and Parliament of India, the Government and the Legislature of each State, all local authorities within the territory of India, and other authorities within the territory of India or under the control of the Government of India. The definition says includes rather than means, so it is not exhaustive. It covers legislatures as well as executives, which is what makes it possible to strike down a statute rather than merely an order made under one, and it covers local authorities such as municipalities, panchayats and improvement trusts.

The open phrase is other authorities, and that is where the litigation is. It has been construed to cover statutory corporations and bodies that are instrumentalities or agencies of the State, on a set of tests that look at whether the entire share capital or financial resources come from the State, whether there is deep and pervasive State control, whether the body enjoys a State-conferred monopoly, whether it performs functions of public importance closely related to governmental functions, and whether a government department has been transferred to it. A private body performing a public function may fall inside it, while a private body simply carrying on business does not. The judiciary sits awkwardly: in its rule-making and administrative capacity it is generally treated as the State, while a judicial order is generally not challenged as violating a fundamental right, and the position is not fully settled.

2. What does article 13 do, and what doctrines follow from it? Article 13(1) provides that all laws in force immediately before the commencement of the Constitution, in so far as they are inconsistent with Part III, shall be void to the extent of the inconsistency. Article 13(2) forbids the State to make any law taking away or abridging the rights conferred by Part III, and makes any such law void to the extent of the contravention. Article 13(3)(a) defines law very widely, to include any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law, and 13(3)(b) defines laws in force to include pre-constitutional legislation not previously repealed even if not then in operation. Article 13(4), inserted later, provides that nothing in the article applies to an amendment made under article 368.

Four doctrines follow. Severability, because the law is void only to the extent of the inconsistency, so the offending portion falls and the remainder survives if it can stand alone. Eclipse, because a pre-constitutional law inconsistent with a fundamental right is overshadowed rather than dead, and revives if the inconsistency is removed. No waiver, because the rights are conferred as a matter of public policy and not for the holder's private benefit alone, so consent does not cure a breach. And the reach of custom, because custom and usage having the force of law are within the definition, which allows a customary practice to be struck down and matters greatly in a society where much ordering is customary.

3. Why is article 12 the largest structural limitation on human rights protection in India? Because Part III, with a handful of exceptions, binds only the State. A violation committed by an employer, a landlord, a caste body, a school or a family is not a breach of a fundamental right at all, however serious it is as a human rights matter, and cannot be met by a writ addressed to the wrongdoer. The exceptions are few and specific: article 15(2) on access to shops, public restaurants, hotels, wells, tanks, bathing ghats and roads; article 17 abolishing untouchability and making its practice an offence; article 23 prohibiting traffic in human beings, begar and other forms of forced labour; and article 24 prohibiting the employment of children in hazardous work. Those four bind everybody.

The consequence runs right through this paper. Because the Constitution cannot reach private violation directly, protection against it has to come from statutes, and those statutes need their own machinery, their own courts and their own commissions. That is why Module III is largely a paper about the Protection of Human Rights Act 1993, the atrocities Act, POCSO and the special courts rather than about articles, and why the failure of that machinery matters so much: for most people, most of the time, it is the only route there is.

Articles 15 and 16 are equally unavailable, so a foreigner cannot complain of discrimination as such under article 15 or claim equality of opportunity in public employment.

Companies, and why they complicate it

A company is a person for article 14 and can claim equality before the law.

A company is not a citizen for article 19, because citizenship under Part II belongs to natural persons.

The point has been litigated repeatedly and the usual route is for the shareholders to assert their own article 19 rights, since a restriction on the company may in substance restrict theirs. A candidate should know that the corporate veil is not simply pierced for this purpose, and that the position rests on the shareholders' own rights rather than the company's.

Why the distinction is drawn where it is

Two reasons, and both are defensible.

The citizen rights are about membership of the political community. Moving and settling anywhere in the territory, holding public employment, and being free of discrimination in the distribution of State benefits are all claims that flow from belonging to the State rather than from being human.

The person rights are about being human. Life, liberty, equal treatment by the law, freedom of conscience, and protection from being enslaved or tried retrospectively do not depend on who issued your passport.

That mapping is not perfect. Article 19(1)(a), freedom of speech and expression, is a human right in every international instrument and a citizen right in India, and the mismatch is real. A good answer says so rather than pretending the line is principled throughout.

What the international instruments say

Article 2(1) of the Civil and Political Covenant obliges each State party to respect and ensure the rights recognised in it to all individuals within its territory and subject to its jurisdiction, without distinction of any kind including national origin.

Article 25 is the exception, reserving political participation to citizens, and article 12 on freedom of movement is expressed to apply to everyone lawfully within the territory.

So the Covenant's line and the Constitution's line are drawn in different places, and the difference is largest at article 19. That mismatch is a legitimate criticism of Part III and belongs in [What Part III Does Not Contain].

Worked example

Her Set 1 Q1, in the part before the case.

Quote the article openings: any person in article 14, no person in article 21, all citizens in article 19.

Give both lists.

Say what follows practically for a foreigner, especially the unavailability of article 19(1)(d) and (e).

Give the company position, briefly, because it shows the distinction is about the holder and not only about nationality.

Give the enemy alien qualification on article 22, and say the category is narrow.

Then turn to the case, which [Chandrima Das, and a Foreigner's Article 21] takes.

What it does NOT mean

It does not mean a foreigner has no rights in India. They hold articles 14, 20, 21, 22, 23, 24, 25 to 28 and 32.

It does not mean the line is principled everywhere. Freedom of expression is a human right internationally and a citizen right here.

And it does not mean a company is rightless. It holds article 14, and its shareholders hold article 19.

Quick revision

• Read the opening words. Any person in article 14; no person in articles 20 and 21; all citizens in articles 15, 16 and 19.
• A foreigner holds: 14, 20, 21, 22(1) and (2), 23, 24, 25 to 28, and 32.
• A foreigner does not hold: 15, 16, 19. The consequential loss is 19(1)(d) movement and 19(1)(e) residence.
• Enemy alien under article 22(3)(a) means a national of a State at war with India, not any foreigner.
• A company is a person for article 14 and not a citizen for article 19; the shareholders assert their own article 19 rights.
• The Covenant draws the line differently: article 2(1) for all individuals within the territory and subject to the jurisdiction, with article 25 reserved to citizens. The mismatch is largest at article 19.

Test yourself

1. How does Part III distinguish rights of persons from rights of citizens, and where is the line? It distinguishes them in the text of each article, so the answer is found by reading the opening words rather than by any external rule. Articles expressed as protecting any person, or framed as prohibitions on depriving any person, belong to everyone within the territory: article 14, which provides that the State shall not deny to any person equality before the law or the equal protection of the laws; article 20 on protection in respect of conviction for offences; article 21, which provides that no person shall be deprived of his life or personal liberty except according to procedure established by law; article 22 in part; articles 23 and 24 against traffic in human beings, forced labour and child labour; articles 25 to 28 on religion; and article 32, since the remedy follows the right.

Articles expressed as belonging to all citizens do not extend to a foreigner. Article 15 on discrimination, article 16 on equality of opportunity in public employment, and article 19 with its six freedoms are all confined to citizens, as is article 29(1). The consequential loss is greatest at article 19(1)(d) and (e), the freedom to move freely throughout the territory of India and to reside and settle in any part of it, because those are the rights an order restricting a foreigner's movement or residence would otherwise engage. Such an order therefore has to be attacked as arbitrary under article 14 or as an unfair procedure under article 21.

2. What is the position of a company, and of an enemy alien? A company is a person and not a citizen. It can claim article 14, because that article protects any person and a company is a juristic person, and it can claim article 21 in the sense the courts have allowed. It cannot claim article 19, because citizenship under Part II of the Constitution belongs to natural persons and a corporation cannot be a citizen. The point has been litigated repeatedly, and the practical route is for the shareholders to assert their own article 19 rights on the footing that a restriction on the company restricts theirs in substance. The corporate veil is not simply lifted for the purpose; the position rests on the shareholders' own rights rather than on the company acquiring any.

An enemy alien is excluded from article 22(1) and (2) by article 22(3)(a), so they cannot claim to be informed of the grounds of arrest, to consult and be defended by a legal practitioner of choice, or to be produced before a magistrate within twenty-four hours. The category is narrow and should be stated narrowly: an enemy alien means a national of a State at war with India, not any foreigner and not a person the executive regards as hostile. A refugee, a migrant or a visitor from a State with which India is not at war holds the article 22 protections in full.

3. Is the Indian line principled, and how does it compare with the Covenant? It is defensible in outline and imperfect in detail. The outline is principled: the citizen rights are about membership of the political community, since moving and settling anywhere in the territory, holding public employment and being free of discrimination in the distribution of State benefits are claims that flow from belonging to the State rather than from being human. The person rights are about being human, since life, liberty, equal treatment by the law, freedom of conscience and protection from enslavement or retrospective punishment do not depend on nationality.

The detail is imperfect at one conspicuous point. Article 19(1)(a), freedom of speech and expression, is a human right in every international instrument and a citizen right in India, and there is no principled reason why a foreigner lawfully present should hold article 21 in its enlarged form and not hold freedom of expression. The Civil and Political Covenant draws the line differently: article 2(1) obliges each State party to respect and ensure the Covenant rights to all individuals within its territory and subject to its jurisdiction without distinction of any kind including national origin, article 25 reserves political participation to citizens, and article 12 confines freedom of movement to those lawfully within the territory. So the Covenant reserves far less to citizens than Part III does, and the gap is largest precisely at article 19.

Article 359 permits suspension of the enforcement of Part III rights during an emergency, and after the Forty-fourth Amendment articles 20 and 21 are outside that suspension.

Article 14 in human rights practice

Three uses, and they are what makes this article central to Modules III and IV.

Testing a classification in welfare legislation. Where the State extends a benefit, a protection or a document to one group and withholds it from a comparable group, article 14 asks whether the differentia is intelligible and whether it bears a rational relation to the object.

Attacking arbitrariness in an individual decision. A detention, a refusal, a removal or a denial made without reasons or without material is challengeable as arbitrary, and this is the more useful limb in practice because it does not require a comparator.

And supplying the equality element of article 21. Since the late 1970s the two articles are read together, so a procedure that is discriminatory is also not a fair, just and reasonable procedure.

The international correspondence

Article 7 of the Universal Declaration: all are equal before the law and are entitled without any discrimination to equal protection of the law. The two limbs of article 14, in one sentence, three years before the Constitution.

Article 26 of the Civil and Political Covenant is a free-standing equality guarantee, wider than article 14 in that it obliges the law to prohibit discrimination and guarantee effective protection against it.

Article 1 of the Declaration supplies the premise: all human beings are born free and equal in dignity and rights.

Worked example

Her Set 1 Q1, which needs article 14 as one of the two articles available to all persons.

Quote the article in full, because the two limbs have to be visible.

Separate the limbs and name their sources, English and American, negative and positive.

Say who holds it: any person, including a foreigner and a company.

Say that it permits classification and forbids class legislation, and give the tests in one line each.

Give the constitutional exceptions, especially articles 361, 105 and 194.

Close on the international correspondence, because her question is about the Declaration as a model code and article 7 is the model for this article.

What it does NOT mean

It does not mean identical treatment for everyone. It means like treatment for those alike in relevant respects.

It does not mean the special provisions for women, children and backward classes are exceptions to it. They are applications of it.

And it does not require a comparator in every case. The arbitrariness limb operates without one.

Quick revision

• The text: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
• Two limbs: equality before the law, English, negative, Dicey's second meaning of the rule of law; the equal protection of the laws, American, from the Fourteenth Amendment, positive, like treated alike in like circumstances.
• Held by any person, including a foreigner and a company; within the territory; against the State under article 12.
• Permits classification, forbids class legislation.
• Exceptions in the Constitution: article 361 President and Governors; articles 105 and 194 privilege; article 31C; articles 15(3) to (5) and 16(4), which are applications rather than exceptions; article 359 in an emergency, with articles 20 and 21 now outside it.
• Three human rights uses: testing a classification in welfare legislation; attacking arbitrariness without a comparator; and supplying the equality element of article 21.
• Correspondence: article 7 of the Declaration; article 26 of the Covenant, which is wider.

Test yourself

1. What are the two limbs of article 14, and why is the distinction not merely historical? Article 14 provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India, and that single sentence contains two guarantees drawn from different traditions. Equality before the law is the English formulation and is negative in character: no person is above the law, everyone is subject to the ordinary law administered by the ordinary courts, and no special privilege attaches to birth or rank. It corresponds to the second of Dicey's three meanings of the rule of law. The equal protection of the laws is the American formulation, taken from the Fourteenth Amendment, and is positive: it requires that persons alike in relevant respects be treated alike, in the privileges conferred on them and in the liabilities imposed on them.

The distinction is not merely historical because the two limbs test different things. A single harsh law applied without exception to the whole population would satisfy equality before the law completely, since nobody would be above it and nobody would be privileged. It would not necessarily satisfy the equal protection of the laws, because that limb asks whether the classifications the law itself makes are justifiable, and whether it visits like cases with like consequences. The second limb is therefore the one that does the work in modern litigation, and the first survives mainly as the source of the rule against privilege and as the reason the constitutional immunities in articles 361, 105 and 194 have to be written down expressly.

2. Who can claim article 14, and what exceptions does the Constitution itself make? Any person can claim it. The article is expressed as a prohibition on the State denying equality to any person, so it extends to citizens, to foreigners, to companies and to other juristic persons, and it operates within the territory of India. It runs against the State as article 12 defines it, and so does not directly bind private persons except where some other article does.

The Constitution makes several exceptions expressly. Article 361 gives the President and the Governors immunity, providing that they are not answerable to any court for the exercise of the powers and duties of their office and that no criminal proceedings shall be instituted against them during their term. Articles 105 and 194 confer parliamentary and legislative privilege, including immunity for anything said or any vote given in the House. Article 31C protects certain laws giving effect to directive principles. Article 359 permits the suspension of the enforcement of Part III rights during an emergency, though since the Forty-fourth Amendment articles 20 and 21 are outside that suspension. Articles 15(3), 15(4), 15(5), 16(4) and 16(4A), permitting special provision for women and children, for socially and educationally backward classes and for the Scheduled Castes and Scheduled Tribes, are conventionally listed here but are better described as applications of equality rather than exceptions to it, since treating unequals as equals is itself a form of inequality.

3. How is article 14 used in human rights litigation, and what does it correspond to internationally? Three ways. It tests classifications in welfare and administrative legislation: where the State extends a benefit, a protection, a document or a status to one group and withholds it from a comparable group, article 14 asks whether the differentia is intelligible and whether it bears a rational relation to the object the law seeks to achieve. It attacks arbitrariness in individual decisions, so a detention, a refusal, a removal or a denial made without reasons or without material can be struck down as arbitrary, and this limb is the more useful in practice because it does not require the petitioner to produce a comparator who was treated better. And it supplies the equality element of article 21, since the two articles have been read together since the late 1970s, with the result that a procedure which discriminates cannot be a fair, just and reasonable procedure.

Internationally it corresponds most closely to article 7 of the Universal Declaration, which provides that all are equal before the law and are entitled without any discrimination to equal protection of the law, and which therefore contains both of article 14's limbs in a single sentence written three years before the Constitution. Article 1 of the Declaration supplies the premise, that all human beings are born free and equal in dignity and rights. Article 26 of the Civil and Political Covenant is wider than article 14, because it is a free-standing equality guarantee that not only prohibits discrimination but obliges the law to prohibit it and to guarantee effective and equal protection against it on any ground.

How the two tests fit together

They are not alternatives and one has not replaced the other.

The classification test is still the right tool for a challenge to a statutory classification, and it is what a court applies when a law divides the population into groups.

The arbitrariness test is the right tool for executive action and for a rule with no discernible basis, and it is what a court applies when there is no classification to examine.

Both are article 14. A candidate who presents the second as having overruled the first is wrong; the correct statement is that article 14 has two distinct doctrinal routes and the choice of route depends on what is being attacked.

Article 14 and article 21 read together

Since the late 1970s the articles in Part III are not read as separate compartments.

A law that deprives a person of life or personal liberty must prescribe a procedure, that procedure must be fair, just and reasonable under article 21, and it must not be arbitrary or discriminatory under article 14.

The three articles 14, 19 and 21 are read as a group, so a law restricting liberty must survive all three tests rather than only the one it appears to engage. [Due Process Read into a Constitution That Refused It] takes that development in full.

Positive discrimination is not an exception

Articles 15(3) to (6) and 16(4) to (6) permit special provision, and it is a common error to call them exceptions to article 14.

They are applications of it. The equal protection of the laws requires like treatment for those alike in relevant respects, and persons who are not alike in relevant respects are not entitled to identical treatment.

Treating unequals as equals is itself a denial of equality, which is the proposition that carries the whole of Indian reservation jurisprudence, and it follows directly from the second limb of article 14 rather than standing outside it.

Worked example

A question that asks whether some State action offends article 14.

Identify what is being attacked: a statutory classification, or an executive decision.

If it is a classification, apply the two limbs. State the differentia. Ask whether it is intelligible. Then ask what the statute's object is and whether the differentia serves it. Note the presumption of constitutionality.

If it is an executive act, apply the arbitrariness test. Ask whether there were reasons, material, and a discernible principle. Note that no comparator is required.

Read article 14 with article 21 where liberty is affected.

And if the challenge is to a special provision, say that it is an application of equality and not an exception, and then test whether the group is properly identified.

What it does NOT mean

It does not mean any classification is bad. Classification is not merely permitted, it is necessary; only class legislation is forbidden.

It does not mean the arbitrariness test replaced the classification test. Both live, and they answer different questions.

And it does not mean the presumption of constitutionality is a formality. It is a real burden, and it is why so many article 14 challenges to statutes fail.

Quick revision

• Article 14 forbids class legislation and permits reasonable classification.
• Two limbs, both required: an intelligible differentia distinguishing those grouped in from those left out; and a rational nexus between that differentia and the object sought to be achieved.
• Three refinements: the object must itself be legitimate; mathematical precision is not required; and there is a presumption of constitutionality, the burden being on the challenger.
• The arbitrariness test: equality is antithetic to arbitrariness, so an arbitrary act is unequal and violates article 14. No comparator is needed, which is why it is the useful limb for individual human rights violations.
• The two tests coexist: classification for a statutory classification, arbitrariness for executive action.
• Articles 14, 19 and 21 are read together: procedure must be fair, just and reasonable and also non-arbitrary and non-discriminatory.
• Special provisions under 15(3) to (6) and 16(4) to (6) are applications of equality, not exceptions, because treating unequals as equals is itself unequal.

Test yourself

1. State the classification test and explain which limb does the work. Article 14 forbids class legislation but permits reasonable classification, and a classification is reasonable only if two conditions are both satisfied. First, it must be founded on an intelligible differentia which distinguishes the persons or things grouped together from those left out of the group, intelligible meaning that the line can be stated and understood so that one can tell on which side of it any given case falls. Second, that differentia must bear a rational relation to the object sought to be achieved by the statute in question. Three refinements attach: the object must itself be legitimate, since a classification cannot be saved by showing that it perfectly serves an unconstitutional purpose; mathematical precision is not required, so a statute may draw an age line at eighteen without proving that nobody matures earlier; and there is a presumption of constitutionality, the burden lying on the person attacking the law, on the footing that the legislature understands and correctly appreciates the needs of its own people.

The second limb does the work. The first is rarely difficult to satisfy, because almost any line a legislature draws can be stated clearly enough to be intelligible. It is the requirement of a rational connection between that line and the statutory purpose that defeats bad classifications, since a rule dividing people by the first letter of their surname is perfectly intelligible and connected to nothing worth achieving. An answer that recites both limbs but tests only the first has not applied the doctrine.

2. What is the arbitrariness test, and why does it matter more in human rights litigation? From the late 1970s the Supreme Court held that equality is antithetic to arbitrariness, so that where an act is arbitrary it is implicit that it is unequal both according to political logic and constitutional law, and is therefore violative of article 14. The test asks whether the decision or rule was made with reasons, on material, according to a discernible principle, and in a manner a reasonable authority might adopt.

It matters more in human rights litigation for one reason: it needs no comparator. Under the classification test a petitioner must identify a group that is relevantly alike and was treated better, which is a demand the facts frequently cannot meet. Where the State has treated everybody equally badly, or where the petitioner is the only person affected by the impugned act, there is no comparator to produce and the classification test simply has nothing to work on. Most human rights violations in India are individual rather than group-based: a detention without grounds, a removal without assessment, a refusal of a document without reasons. In those cases the arbitrariness limb is the only route through article 14, and it is why article 14 has become a general guarantee against unreasoned State action rather than only a guarantee against discriminatory classification.

3. Why are the special provisions for backward classes not exceptions to article 14? Because article 14's second limb guarantees the equal protection of the laws, which requires that persons alike in relevant respects be treated alike, and carries the corollary that persons who are not alike in relevant respects are not entitled to identical treatment. Applying an identical rule to people whose starting positions differ materially produces unequal outcomes, so treating unequals as equals is itself a denial of equality. That proposition follows directly from the equal protection limb and does not need any exception to article 14 to support it.

Articles 15(3) to (6) and 16(4) to (6) accordingly do not carve equality back; they confirm and make explicit what the equal protection limb already permits. Article 15(3) allows special provision for women and children, 15(4) for socially and educationally backward classes and for the Scheduled Castes and Scheduled Tribes, 15(5) for their admission to educational institutions including private unaided ones other than minority institutions, and 15(6) for economically weaker sections subject to a maximum of ten per cent. Article 16(4) permits reservation of appointments for a backward class not adequately represented in the services, 16(4A) permits reservation in promotion with consequential seniority for the Scheduled Castes and Scheduled Tribes, and 16(6) permits reservation for economically weaker sections subject to a ten per cent ceiling. The constitutional question in any given case is therefore not whether the special provision is an exception, but whether the group has been properly identified and whether the provision serves the equality the article guarantees.

16(2). No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for or discriminated against in respect of any such employment or office.

16(3). Parliament may prescribe a residence requirement within a State or Union territory for a class of employment there.

16(4). The State may reserve appointments or posts for any backward class of citizens which in its opinion is not adequately represented in the services under the State.

16(4A). Reservation in matters of promotion, with consequential seniority, for the Scheduled Castes and Scheduled Tribes not adequately represented.

16(4B). Unfilled reserved vacancies of a year may be carried forward as a separate class, not counted with that year's vacancies for the fifty per cent ceiling.

16(5). The article does not affect a law requiring the incumbent of an office in a religious or denominational institution to profess a particular religion.

16(6). Reservation for economically weaker sections other than the 16(4) classes, subject to a maximum of ten per cent of the posts in each category.

Two grounds article 16 adds

Descent and residence appear in article 16(2) and not in article 15(1). Descent matters for the inherited disabilities the Constitution is addressing; residence is qualified immediately by 16(3).

Why these articles are on a human rights paper

Three reasons, and the third is the one that answers her questions.

They are the operative equality guarantees. Article 14 states the principle; articles 15 and 16 state the prohibited grounds, and a prohibited-ground case is far easier to run than a bare article 14 case.

They carry the substantive conception of equality. A constitution that permitted only formal equality would forbid every special provision. The Indian text writes the permissions into the guarantee itself, which is what makes Indian equality substantive rather than formal.

And they are citizen rights, which limits them. A foreigner cannot invoke article 15 or article 16 at all, so a refugee, a migrant worker or a stateless person facing discrimination must run the case under article 14 or article 21. That limitation is why [Rights of Persons and Rights of Citizens] matters and why the Chandrima Das line of reasoning had to go through article 21.

The international correspondence

Article 2 of the Universal Declaration: entitlement to all the rights and freedoms without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

That list is longer than article 15's five grounds and is not limited to citizens.

Article 26 of the Civil and Political Covenant guarantees equal protection of the law without discrimination on any ground and obliges the law to prohibit discrimination.

The Racial Discrimination Convention obliges States to eliminate discrimination on grounds of race, colour, descent, or national or ethnic origin. Descent is in that list, and it is the word on which the caste disagreement between India and the treaty body turns, which [The Racial Discrimination Convention, and the Disagreement About Caste] takes in full.

Worked example

A question on the equality guarantees in the Indian Constitution.

Give article 14 first as the principle.

Then articles 15 and 16 as the operative prohibitions, quoting the grounds.

Explain on grounds only of, and say why the narrow reading has been criticised.

Point out that article 15(2) binds private persons, since most answers miss it.

Give the special provisions as clauses of the articles themselves, and say that this is what makes Indian equality substantive.

Close on the limitation: both are citizen rights, so a non-citizen has to use article 14 or article 21.

What it does NOT mean

It does not mean any distinction on a listed ground is void. The words are on grounds only of, and a genuinely mixed ground may survive.

It does not mean reservations are exceptions to equality. They are written into articles 15 and 16 themselves.

And it does not mean article 15 protects everyone. It protects citizens.

Quick revision

• Article 15(1): no discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth.
• Article 15(2): binds private persons. Access to shops, public restaurants, hotels and places of public entertainment; use of wells, tanks, bathing ghats, roads and places of public resort.
• 15(3) women and children; 15(4) socially and educationally backward classes, SCs and STs; 15(5) admissions including private unaided institutions, not minority institutions; 15(6) economically weaker sections, ten per cent maximum.
• Article 16(1): equality of opportunity for all citizens in employment or office under the State. 16(2) adds descent and residence to the grounds.
• 16(3) residence requirement by Parliament; 16(4) reservation for a backward class not adequately represented; 16(4A) promotion with consequential seniority for SCs and STs; 16(4B) carried-forward vacancies outside the fifty per cent ceiling; 16(5) denominational offices; 16(6) economically weaker sections, ten per cent maximum.
• Both are citizen rights. A non-citizen must use article 14 or article 21.
• Correspondence: article 2 of the Declaration, a longer list and not confined to citizens; article 26 of the Covenant; and descent in the Racial Discrimination Convention.

Test yourself

1. Set out articles 15 and 16, and identify the words that decide most cases. Article 15(1) forbids the State to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 15(2) provides that no citizen shall on those grounds only be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and places of public entertainment, or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. Clauses (3) to (6) then permit special provision for women and children, for socially and educationally backward classes and the Scheduled Castes and Scheduled Tribes, for their admission to educational institutions including private aided or unaided institutions other than minority institutions, and for economically weaker sections subject to a maximum of ten per cent.

Article 16(1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State, and 16(2) forbids ineligibility or discrimination on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, adding descent and residence to article 15's list. Clause (3) permits Parliament to prescribe a residence requirement, (4) permits reservation for a backward class not adequately represented in the services, (4A) permits reservation in promotion with consequential seniority for the Scheduled Castes and Scheduled Tribes, (4B) allows carried-forward vacancies to be treated as a separate class outside the fifty per cent ceiling, (5) saves denominational office requirements, and (6) permits reservation for economically weaker sections subject to ten per cent.

The words that decide most cases are on grounds only of. The prohibition bites where the differentiation rests on a listed characteristic and nothing else, so a distinction resting on a listed ground together with some other genuinely relevant ground may survive. That narrow reading has been criticised, because a rule can discriminate in effect while resting nominally on a mixed ground, and the doctrinal answer has been to examine whether the additional ground is genuine or a pretext.

2. Why is article 15(2) unusual, and what follows from it? Because it does not run against the State. Article 15(1) is addressed to the State in terms, but 15(2) is addressed at large: it provides that no citizen shall be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and places of public entertainment, or to the use of wells, tanks, bathing ghats, roads and places of public resort. A private hotel, shop or place of entertainment that refuses service on a listed ground therefore breaches the article directly, without any need to bring the proprietor within article 12.

What follows is that article 15(2) is one of only four places in Part III where a fundamental right operates horizontally, the others being article 17 abolishing untouchability and making its enforcement an offence, article 23 prohibiting traffic in human beings and forced labour, and article 24 prohibiting child labour in hazardous employment. Those four are the whole of the Constitution's direct answer to private violation, which is why the rest of the protection against private conduct has to come from statutes, and why so much of this paper is about statutory machinery rather than constitutional articles.

3. What do articles 15 and 16 contribute that article 14 does not, and what is their limitation? Two contributions. First, they name the prohibited grounds, which makes a case far easier to run: a petitioner who can show that the differentiation rested on religion, race, caste, sex, place of birth, descent or residence does not have to construct an argument about intelligible differentia and rational nexus from scratch. Second, they carry the substantive conception of equality in the text itself. A constitution guaranteeing only formal equality would have to treat every special provision as an exception requiring justification; the Indian text writes the permissions into the guarantee, in article 15(3) to (6) and article 16(4) to (6), so that special provision for women, children, backward classes, the Scheduled Castes and Tribes and economically weaker sections is part of what equality means rather than a departure from it.

Their limitation is that both are confined to citizens. A foreigner, a refugee, a migrant worker or a stateless person facing discrimination in India cannot invoke either article, however plainly the discrimination rests on a listed ground. Such a person has to run the case under article 14, which is available to any person, or under article 21 as an unfair or degrading treatment. That limitation is why the reasoning about a foreigner's rights in India runs through articles 14 and 21 rather than through the articles that actually name discrimination, and it is one of the sharper mismatches between Part III and the international instruments, since article 2 of the Universal Declaration lists more grounds than article 15 and confines itself to no one.

It is also the article that explains why enforcement is the hard part. The right is absolute, the offence is created, the statutes exist, and the practice persists, which is the gap Module III is about.

And it supplies the strongest Indian answer to the argument that human rights are a Western import. Nothing in the American, Irish or English constitutional tradition produced article 17; it comes from Indian social reform politics and from the demands recorded in [The Pre-Constitutional Demand for a Bill of Rights].

Article 18

18(1). No title, not being a military or academic distinction, shall be conferred by the State.

18(2). No citizen of India shall accept any title from any foreign State.

18(3). No person who is not a citizen shall, while holding any office of profit or trust under the State, accept any title from any foreign State without the consent of the President.

18(4). No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.

Its purpose is the abolition of artificial distinctions of rank. The colonial honours system had created a hierarchy of titles carrying precedence, and article 18 ends it.

The national awards are not titles on the accepted view, because they are decorations that are not to be used as prefixes or suffixes to the recipient's name; the point has been litigated and the distinction is between an award and a title of nobility.

A candidate should note the honest position: article 18 is the least litigated article in Part III, it carries no remedy of its own, and its practical significance is symbolic. Saying so is better than inflating it.

The international correspondence

Article 1 of the Universal Declaration: all human beings are born free and equal in dignity and rights.

Article 2: entitlement without distinction of any kind, including birth or other status.

And the Racial Discrimination Convention's inclusion of descent among the prohibited grounds is what connects article 17 to India's international obligations, and the connection is contested, which [The Racial Discrimination Convention, and the Disagreement About Caste] takes in full.

Worked example

A question on equality, or on the Indian contribution to human rights.

Quote article 17 in full, because it is short and the wording carries the argument.

Give the four features: binds private persons, creates an offence, no exception, undefined term read historically.

Name the legislation and article 35.

Say what it shows: a human right addressed to social power, and the clearest case where the law is complete and the practice persists.

Give article 18 briefly and honestly, four clauses and a symbolic function.

Close with the argument that article 17 is the answer to the import objection, because it is a right no borrowed model supplied.

What it does NOT mean

It does not mean untouchability is defined in the Constitution. It is not, and the courts read it in its historical caste sense.

It does not mean article 17 has abolished the practice. It abolished its legal recognition and made its enforcement an offence.

And it does not mean article 18 forbids the national awards. They are decorations, not titles, provided they are not used as prefixes or suffixes.

Quick revision

• Article 17: Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law.
• Four unique features: binds private persons; creates an offence; admits no exception whatever; and the term is undefined, read in its historical caste sense.
• The legislation: the Protection of Civil Rights Act 1955 (originally the Untouchability (Offences) Act 1955) and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989.
• Article 35: only Parliament may prescribe punishment for acts declared offences under Part III.
• Article 18: (1) no title conferred by the State, not being a military or academic distinction; (2) no citizen to accept a foreign title; (3) a non-citizen holding office of profit or trust needs the President's consent; (4) no present, emolument or office from a foreign State without that consent.
• National awards are decorations, not titles, provided they are not used as prefixes or suffixes.
• Article 17 is the answer to the import objection: no borrowed model supplied it.

Test yourself

1. What makes article 17 unique in Part III? Four features. It binds private persons, because the article is not addressed to the State at all: it says that untouchability is abolished and its practice in any form is forbidden, so any person who practises it breaches the Constitution directly. That places it with articles 15(2), 23 and 24 in the small group of horizontally operating fundamental rights. It creates an offence, which no other fundamental right does, by providing that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law, a constitutional mandate to Parliament to legislate rather than a mere prohibition.

It admits no exception whatever. Every other substantive article in Part III carries qualifications: reasonable restrictions in article 19, the public order and health and morality provisos in article 25, the preventive detention carve-out in article 22. Article 17 carries none. And the operative term is undefined. The Constitution does not say what untouchability means, and the quotation marks around the word signal that a term of art is intended; the courts have read it in its historical sense as the practice grounded in caste, rather than as any exclusion of any person from any place, which keeps the article from becoming a general guarantee of access.

2. What legislation did article 17 produce, and why is article 35 relevant? The constitutional mandate to punish was carried out first by the Untouchability (Offences) Act 1955, later renamed and substantially strengthened as the Protection of Civil Rights Act 1955, which makes the enforcement of disabilities arising out of untouchability an offence. It was carried much further by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, which defines a schedule of offences of atrocity, imposes a duty on public servants and creates Special Courts and Exclusive Special Courts to try them, together with Special Public Prosecutors and a bar on anticipatory bail. That Act is the working Indian example for a question about Special Courts in the protection of human rights.

Article 35 is relevant because it reserves the power. It provides that Parliament shall have, and the legislature of a State shall not have, power to make laws prescribing punishment for those acts which are declared to be offences under Part III. So the criminal law implementing article 17 is exclusively Parliament's, which is why the statutes are central rather than State enactments, and why the failure of enforcement is a failure of a national scheme rather than of a patchwork.

3. What does article 18 do, and how should its significance be described? Article 18 abolishes titles in four clauses. The State may confer no title other than a military or academic distinction. No citizen of India may accept any title from any foreign State. A non-citizen holding an office of profit or trust under the State may not accept a foreign title without the consent of the President. And no person holding such an office may accept any present, emolument or office of any kind from or under any foreign State without that consent. Its purpose was to end the colonial honours system, which had created a hierarchy of titles carrying precedence, and so to remove artificial distinctions of rank from Indian public life.

Its significance should be described honestly rather than inflated. It is the least litigated article in Part III, it carries no remedy of its own, and its practical effect is largely symbolic. The one recurring question is whether the national awards offend it, and the accepted answer is that they do not, because they are decorations rather than titles of nobility, provided they are not used as prefixes or suffixes to the recipient's name. An answer that treats article 18 as a major operative guarantee is overstating it; an answer that omits it from a discussion of equality has missed the Constitution's stance on inherited hierarchy, which is what it shares with article 17.

Total prohibition is not automatically unreasonable, but it requires the strongest justification, and a State monopoly is expressly permitted by 19(6)(ii).

Why article 19 matters on this paper, and its limitation

It is the classic bundle of civil and political rights, corresponding to articles 19, 20 and 21 of the Universal Declaration and articles 19, 21 and 22 of the Civil and Political Covenant.

It is where the Constitution's structure of limits is visible. Article 21 states its limit in six words; article 19 sets out eight grounds for speech alone. That difference in drafting is why article 21 grew into a general guarantee and article 19 did not.

And it is a citizen right, which is its limitation on a human rights paper. A foreigner in India holds no part of article 19. That mismatch is the largest single divergence between Part III and the international instruments, since freedom of expression under article 19 of the Covenant belongs to everyone. [Rights of Persons and Rights of Citizens] takes it, and [What Part III Does Not Contain] returns to it.

The three articles read together

Articles 14, 19 and 21 are not separate compartments.

A law depriving a person of personal liberty must satisfy article 21, by prescribing a procedure that is fair, just and reasonable; article 14, by not being arbitrary or discriminatory; and article 19, if it also restricts one of the six freedoms, by being a reasonable restriction on a permitted ground.

That doctrine is a development of the late 1970s and reversed an earlier view that the articles occupied separate fields. [Due Process Read into a Constitution That Refused It] takes it in full, and it is the single most consequential move in Indian constitutional law for this paper.

Worked example

A question about the freedoms, or about the balance between liberty and public order.

List the six freedoms with their letters, and say that (f) was omitted in 1979.

Give the restriction clauses, and stress that the grounds are exhaustive and differ between freedoms.

Give reasonableness: no formula, the factors, substantive and procedural, and proportionality.

Say that article 19(1)(d) and (e) are the citizen rights whose absence matters most for a non-citizen.

Close on the reading of 14, 19 and 21 together, because in a modern answer no restriction on liberty is tested under one article alone.

What it does NOT mean

It does not mean the freedoms are absolute. Each carries its own restriction clause.

It does not mean the State may restrict on any ground it thinks good. The grounds are exhaustive and differ by freedom.

And it does not mean a total prohibition is always void. It requires the strongest justification, and article 19(6) expressly permits State monopoly.

Quick revision

• 19(1): (a) speech and expression; (b) assemble peaceably and without arms; (c) associations, unions or co-operative societies; (d) move freely throughout the territory; (e) reside and settle; (g) profession, occupation, trade or business.
• No (f). The property right was omitted by the Forty-fourth Amendment, with effect from 20 June 1979, and the lettering was not renumbered.
• 19(2), speech, eight grounds: sovereignty and integrity, security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation, incitement to an offence.
• 19(3) assembly: sovereignty and integrity, public order. 19(4) association: adds morality. 19(5) movement and residence: general public, or protection of the interests of any Scheduled Tribe. 19(6) trade: general public, plus qualifications and State monopoly.
• The grounds are exhaustive, they differ between freedoms, and every clause requires the restriction to be reasonable.
• Reasonableness: no formula; nature of the right, purpose, extent and urgency of the evil, disproportion, prevailing conditions; substantive and procedural; increasingly proportionality.
• All six are citizen rights. A foreigner holds none of them.
• Articles 14, 19 and 21 are read together.

Test yourself

1. Set out article 19 and explain the structure of its restrictions. Article 19(1) confers on all citizens six freedoms: freedom of speech and expression in (a); the right to assemble peaceably and without arms in (b); to form associations or unions or co-operative societies in (c), the last words added by amendment in 2011; to move freely throughout the territory of India in (d); to reside and settle in any part of it in (e); and to practise any profession or carry on any occupation, trade or business in (g). There is no sub-clause (f): it conferred the right to acquire, hold and dispose of property and was omitted by the Forty-fourth Amendment with effect from 20 June 1979, the remaining letters being left unrenumbered so that the article now runs (a) to (g) with a gap.

Clauses (2) to (6) permit restriction. Clause (2) allows reasonable restrictions on speech in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Clause (3) allows restriction of assembly in the interests of sovereignty and integrity or public order; clause (4) allows restriction of association on those grounds and morality; clause (5) allows restriction of movement and residence in the interests of the general public or for the protection of the interests of any Scheduled Tribe; and clause (6) allows restriction of trade and profession in the interests of the general public, and expressly saves laws prescribing professional or technical qualifications and laws providing for the carrying on of any trade by the State or a State corporation to the complete or partial exclusion of citizens. Three features govern: the grounds are exhaustive, they differ between the freedoms, and every clause requires the restriction to be reasonable.

2. What does reasonableness mean, and who decides it? There is no formula, and any answer that offers one is overstating the law. The court examines the nature of the right infringed, the underlying purpose of the restriction, the extent and urgency of the evil sought to be remedied, the disproportion of the imposition, and the prevailing conditions at the time. Both substantive and procedural reasonableness are examined, so a restriction may be unobjectionable in what it forbids and still fail because of how it is imposed, for instance by conferring an unguided discretion on an official or by providing no opportunity to be heard. Arbitrariness defeats reasonableness, which is the point at which article 14 enters, and in recent decades proportionality has increasingly supplied the framework: a legitimate aim, a rational connection between the measure and that aim, necessity in the sense that no less restrictive alternative would achieve it, and a fair balance between the harm caused and the benefit obtained.

The court decides, not the legislature. That allocation is the whole of the protection article 19 gives, because a legislature able to certify its own restrictions as reasonable would face no limit at all. A total prohibition is not automatically unreasonable, but it demands the strongest justification, and clause (6) expressly contemplates the extreme case by permitting the State or a State corporation to carry on a trade to the complete or partial exclusion of citizens.

3. Why is article 19 both central to and limited on a human rights paper? It is central because it is the classic bundle of civil and political rights and because it is where the Constitution's structure of limits is fully visible. It corresponds to articles 19, 20 and 21 of the Universal Declaration and to articles 19, 21 and 22 of the Civil and Political Covenant, and its drafting shows the Assembly's method: state the freedom, then state exhaustively the grounds on which it may be restricted, then require that any restriction be reasonable and leave that question to the courts. The contrast with article 21, which states its limit in six words, is instructive, and it explains why article 21 grew into a general guarantee while article 19 did not: an article that lists its own exceptions is harder to expand.

It is limited because all six freedoms belong to citizens only. A foreigner in India, including a refugee, a migrant worker or a stateless person, holds no part of article 19, so a restriction on where they may live or travel cannot be attacked under 19(1)(d) or (e) and must be challenged as arbitrary under article 14 or as an unfair procedure under article 21. That is the largest single divergence between Part III and the international instruments, because freedom of expression under article 19 of the Covenant belongs to everyone and is not reserved to nationals, and it is one of the standing criticisms of the Indian scheme.

Three elements have to be satisfied, and a good answer separates them.

The person must be accused of an offence. A formal accusation is required, so the protection attaches at the point of accusation rather than to any person giving information.

There must be compulsion. A voluntary statement is outside the clause.

And the compelled thing must amount to being a witness against himself, which has been read as the giving of testimonial or personal knowledge based evidence.

The consequence is the settled distinction that a candidate must know: compelling an accused to give specimen handwriting, signatures, fingerprints, or samples for identification is not compelling them to be a witness against themselves, because those are not testimonial. Compelling a statement conveying personal knowledge is.

The clause protects at trial and at the investigative stage.

Why article 20 matters for this paper

It is the criminal fair trial guarantee, and Module III is about enforcement, most of which happens through criminal process.

It is available to every person, so a foreigner holds it in full, which is a point [Rights of Persons and Rights of Citizens] relies on.

And it is non-suspendable. Article 359 permits the President to suspend the enforcement of Part III rights during an emergency; the Forty-fourth Amendment excluded articles 20 and 21 from that power. That change was a direct response to the Emergency of 1975 to 1977, and it is the single most important constitutional consequence of that period for this paper.

The international correspondence

Article 11(2) of the Universal Declaration: no one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed, nor shall a heavier penalty be imposed than the one applicable at the time.

Article 15 of the Civil and Political Covenant is to the same effect, and it is a non-derogable article under article 4(2) of that Covenant, which matches the Indian position after the Forty-fourth Amendment.

Article 14(3)(g) of the Covenant guarantees the right not to be compelled to testify against oneself or to confess guilt, and article 14(7) contains the double jeopardy rule in a wider form than article 20(2), covering a person finally convicted or acquitted.

So the Covenant's double jeopardy protection is wider than India's, and that is a fair point to make in an answer about how far Indian law meets international standards.

Worked example

A question on the rights of the accused, or on the fair trial guarantees in the Constitution.

Give the three clauses in order, quoting the operative words.

On clause (1), separate offence from penalty, and give the three limits.

On clause (2), make the point about the word and: prosecution alone is not enough, so the Indian clause is narrower than the common law plea and narrower than article 14(7) of the Covenant.

On clause (3), give the three elements and the testimonial distinction.

Close on non-suspendability under article 359 after the Forty-fourth Amendment, and on the correspondence with article 15 of the Covenant, which is likewise non-derogable.

What it does NOT mean

It does not mean no law can be retrospective. Only criminal conviction and penalty are protected.

It does not mean a person cannot be tried twice after an acquittal. Article 20(2) requires prosecution and punishment; the acquittal protection comes from ordinary criminal procedure.

And it does not mean an accused cannot be required to give fingerprints or handwriting. Those are not testimonial, so article 20(3) does not reach them.

Quick revision

• 20(1): no conviction except for violation of a law in force at the time, and no penalty greater than that available then. Protects conviction and penalty, not procedure; civil retrospectivity is outside it; a lighter later penalty may be claimed.
• 20(2): no person shall be prosecuted AND punished for the same offence more than once. The word AND makes it narrow: acquittal is not covered by the clause itself, the offences must be the same, and the first proceeding must have been judicial.
• 20(3): no person accused of any offence shall be compelled to be a witness against himself. Three elements: accusation, compulsion, and testimonial evidence. Handwriting, signatures, fingerprints and identification samples are outside it.
• Available to every person, including a foreigner.
• Non-suspendable: the Forty-fourth Amendment put articles 20 and 21 outside article 359.
• Correspondence: article 11(2) of the Declaration; article 15 of the Covenant, which is non-derogable under article 4(2); article 14(3)(g) on self-incrimination; and article 14(7), whose double jeopardy rule is wider than article 20(2).

Test yourself

1. What does article 20(1) protect, and what does it not reach? It contains two protections. No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, which forbids the creation of a retrospective crime. And no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence, which forbids the retrospective enhancement of punishment. The two are distinct and are frequently run together in weak answers.

It does not reach three things. It does not protect against changes in procedure or in the law of evidence applied to a pending case, because the clause speaks of conviction and of penalty and not of the manner of trial. It does not touch retrospective civil liability, so a retrospective tax or a retrospective civil disability lies outside the article entirely, however burdensome. And because it is a protection rather than a rule fixing the applicable law, it does not prevent an accused from claiming the benefit of a lighter penalty introduced after the offence: the bar is on the heavier penalty only.

2. Why is the Indian double jeopardy clause narrower than the common law plea? Because of the word and. Article 20(2) provides that no person shall be prosecuted and punished for the same offence more than once, so both elements must be present before the clause is engaged. A person who was prosecuted and acquitted has not been punished, and the clause on its own terms therefore does not bar a second prosecution. The protection against being tried again after an acquittal exists in Indian law, but it comes from the general criminal procedure law, which gives effect to the pleas of autrefois acquit and autrefois convict, and not from the Constitution.

Two further narrowings apply. The offences must be the same, so where a single act constitutes two distinct offences with different ingredients, a prosecution for each is not barred. And the earlier proceeding must have been before a court or a judicial tribunal, so a departmental inquiry followed by a criminal prosecution does not engage the clause at all. The comparison worth making in an answer is with article 14(7) of the Civil and Political Covenant, which protects a person who has been finally convicted or acquitted in accordance with the law and penal procedure of the country, and is therefore wider than the Indian guarantee.

3. What are the elements of article 20(3), and where is the boundary drawn? Three elements must all be present. The person must be accused of an offence, which requires a formal accusation, so the protection attaches at that point rather than being available to anyone from whom information is sought. There must be compulsion, so a statement made voluntarily is outside the clause however damaging. And the compelled thing must amount to being a witness against oneself, which has been construed as the furnishing of testimonial evidence, meaning evidence that conveys the accused's own personal knowledge about the facts in issue.

The boundary follows from the third element. Compelling an accused to provide specimen handwriting, signatures, thumb impressions, fingerprints, or samples for the purposes of comparison and identification does not offend the clause, because those are physical characteristics rather than communications of personal knowledge and the accused is not thereby made a witness. Compelling a statement, an answer or a confession that conveys personal knowledge does offend it. The protection applies at the investigative stage as well as at trial, so it is not confined to the witness box, and it is available to every person including a foreigner. Internationally it corresponds to article 14(3)(g) of the Civil and Political Covenant, which guarantees the right not to be compelled to testify against oneself or to confess guilt.

What the article protects today

Life has been held to mean more than mere animal existence, extending to the right to live with human dignity and to those things that make life meaningful. That single move is the foundation of Module II.

Personal liberty has been given the widest amplitude, covering a variety of rights that go to make up the personal liberty of a person.

And procedure established by law now requires a procedure that is right, just and fair, and not arbitrary, fanciful or oppressive, which brings article 14 and article 19 into every article 21 case.

Article 21 and the emergency

Article 359 permits the President to suspend the right to move any court for the enforcement of Part III rights during an emergency.

During the Emergency of 1975 to 1977 that suspension was held to extend to article 21, so a person detained could not approach a court even to allege that the detention was without legal authority. That decision is the low point of the Indian judicial record on human rights and is treated as wrongly decided.

The Forty-fourth Amendment answered it directly by excluding articles 20 and 21 from the article 359 power. The enforcement of article 21 can no longer be suspended in any emergency.

The international correspondence

Article 3 of the Universal Declaration: everyone has the right to life, liberty and security of person.

Article 6 of the Civil and Political Covenant: every human being has the inherent right to life, this right shall be protected by law, and no one shall be arbitrarily deprived of his life. Article 9: everyone has the right to liberty and security of person, and no one shall be deprived of liberty except on such grounds and in accordance with such procedure as are established by law.

Both article 6 and article 9's core are non-derogable or heavily protected under article 4(2) of the Covenant, which matches the post-1978 Indian position.

The comparison worth drawing is that the Covenant says arbitrarily, which is the substantive standard the Indian text avoided in 1949 and the Indian courts arrived at anyway thirty years later.

Worked example

Almost any question on this paper can be answered through article 21, which is a reason to be disciplined about it.

Quote the article in full. It is eighteen words and there is no excuse for paraphrase.

Break it into the three components and say what each contributes.

Explain why the drafting permits growth: nothing defined, no restriction clause, a procedural limit, available to all.

Give the narrow reading and say how long it lasted, because the enlargement is unintelligible without it.

Give the present content in one sentence each for life, personal liberty and procedure.

Give the emergency point and the Forty-fourth Amendment, because it is the constitutional consequence of the period.

What it does NOT mean

It does not mean life cannot be taken. The article permits deprivation according to a procedure established by law, which is why capital punishment is not per se unconstitutional in India.

It does not mean the article contains a general right to liberty of action. Personal liberty is wide but it is not a licence, and restrictions consistent with a fair procedure are permitted.

And it does not mean the text was always read this way. For nearly thirty years it was not, and an answer that presents the modern reading as obvious has missed the history.

Quick revision

• The text: No person shall be deprived of his life or personal liberty except according to procedure established by law.
• Three components: no person, so every human being; life or personal liberty, both undefined; and procedure established by law, chosen deliberately instead of due process.
• Four features permitting growth: nothing is defined; no restriction clause; the limit is procedural; and it is available to everyone.
• The narrow reading: a law, and the procedure followed, and no inquiry into fairness. It held for nearly three decades.
• Today: life means more than animal existence and includes the right to live with human dignity; personal liberty has the widest amplitude; and procedure must be right, just and fair.
• Emergency: article 359 was held to suspend article 21 during 1975 to 1977; the Forty-fourth Amendment put articles 20 and 21 outside that power.
• Correspondence: article 3 of the Declaration; articles 6 and 9 of the Covenant, which use the word arbitrarily, the substantive standard India avoided in 1949 and reached by construction thirty years later.

Test yourself

1. Set out article 21 and explain why so short a provision carries so much. It provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Three components: no person, which extends the article to every human being within the territory whether citizen or foreigner; life or personal liberty, two protected interests neither of which the Constitution defines; and except according to procedure established by law, which states the only permitted route to a deprivation and which was chosen deliberately in place of the American formula of due process.

Four features of that drafting explain its expansion. Nothing is defined, so the content of life and of personal liberty is whatever a court holds it to be, in sharp contrast with article 19, which names each freedom and lists exhaustively the grounds of restriction. There is no restriction clause at all, so there are no enumerated permissible grounds to confine the article. The limit stated is procedural rather than substantive, so once a court decides that it may examine the quality of the procedure the article contains no internal boundary. And it is available to everyone, so no status question narrows it. Taken together these make article 21 the only article in Part III capable of indefinite growth, which is what happened from the late 1970s onward.

2. What was the narrow reading, how long did it last, and what did it cost? On the original construction the article required only two things: that a law exist authorising the deprivation, and that the procedure prescribed by that law be followed. It did not permit a court to ask whether the prescribed procedure was fair, reasonable or just, because the Constituent Assembly had deliberately replaced due process of law with procedure established by law on advice that due process would let judges strike down social legislation on their own view of reasonableness. Personal liberty was also read narrowly, as freedom from physical restraint of the person rather than as liberty in any broader sense.

The reading held for nearly three decades. Its cost was visible during the Emergency of 1975 to 1977, when the combination of a narrow article 21 and the suspension of the right to move any court under article 359 left a detained person unable to approach a court even to allege that the detention was without legal authority at all. That is the low point of the Indian judicial record on human rights, it is treated as wrongly decided, and it produced the Forty-fourth Amendment, which excluded articles 20 and 21 from the article 359 power so that the enforcement of article 21 can no longer be suspended in any emergency.

3. How does article 21 compare with the international guarantees? Closely in substance and instructively in wording. Article 3 of the Universal Declaration provides that everyone has the right to life, liberty and security of person. Article 6 of the Civil and Political Covenant provides that every human being has the inherent right to life, that this right shall be protected by law, and that no one shall be arbitrarily deprived of his life. Article 9 provides that everyone has the right to liberty and security of person, that no one shall be subjected to arbitrary arrest or detention, and that no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

The instructive comparison is the word arbitrarily. The Covenant sets a substantive standard: the deprivation must not be arbitrary, which invites the court to examine the grounds and not only the procedure. That is precisely what the Constituent Assembly declined to write into article 21 when it removed due process. The Indian courts arrived at the same place by construction thirty years later, holding that the procedure must be right, just and fair and not arbitrary, fanciful or oppressive. So the eventual Indian position and the Covenant standard now coincide, and the route by which India got there, judicial construction rather than drafting, is the reason Module II exists as a separate module on this syllabus.

That is the move on which the whole of Module II rests. Once life carries dignity and the necessaries of life, the content of article 21 is no longer procedural at all, and [The Rights Read into Article 21] is the list that followed.

Why the reversal happened when it did

Three causes, and an answer that gives them is explaining rather than narrating.

The Emergency. Between 1975 and 1977 the narrow reading combined with article 359 to leave a detained person unable to approach a court even to allege that the detention had no legal authority. The Court's acquiescence in that position is treated as its lowest point, and much of what followed is a repair of institutional standing.

The Forty-fourth Amendment. Parliament itself removed articles 20 and 21 from the article 359 power, which was a legislative statement that the narrow position had been wrong.

And the arrival of public interest litigation. A relaxed rule of standing put before the Court the conditions of prisoners, bonded labourers, undertrials and pavement dwellers, which are precisely the facts that make a purely procedural article 21 look inadequate. [Public Interest Litigation: What It Is] takes that development.

What the enlargement did not do

Three limits, and stating them keeps an answer credible.

It did not make article 21 absolute. Deprivation remains permitted, provided the procedure is fair, just and reasonable, which is why capital punishment is not per se unconstitutional in India.

It did not repeal the citizen limitation elsewhere. Article 19 is still confined to citizens; the enlargement of article 21 does not give a foreigner freedom of movement under article 19.

And it did not supply enforcement. A right read into article 21 is declared by a court, and the machinery that has to deliver it is the subject of Module III. That gap is the honest theme of this paper.

The international measure

Article 9 of the Civil and Political Covenant forbids arbitrary arrest or detention and requires that deprivation of liberty be on grounds and in accordance with a procedure established by law.

So the Covenant combines both standards: a substantive prohibition on arbitrariness and a procedural requirement of legality.

Indian law now does the same, having reached the substantive half by construction rather than by drafting.

Worked example

Her Set 1 Q2 and Set 2 Q3 both ask about judicial activism in the development of human rights jurisprudence. This chapter is the hinge of that answer.

State the narrow reading and its two companions, the narrow personal liberty and the separate compartments.

Give the three moves in order, because the compartments had to open before reasonableness could enter.

Give the irony: due process removed in 1949, a functionally similar standard reached by 1978.

Give the three causes: the Emergency, the Forty-fourth Amendment, and public interest litigation.

Close on the three limits, especially that the enlargement declared rights without supplying machinery, which is the transition to Module III.

What it does NOT mean

It does not mean due process was smuggled in wholesale. Indian courts test the fairness of procedure and, through article 14 and article 19, the reasonableness of restriction; they have not adopted the American substantive due process doctrine by name.

It does not mean the Assembly was wrong. Its fear was that judges would strike down social and economic legislation, and Indian courts have instead used article 21 to expand social and economic entitlements, which is the opposite outcome.

And it does not mean the enlargement is uncontested. [The Criticisms of Judicial Activism] takes the objections seriously.

Quick revision

• The narrow reading: is there a law, and was its procedure followed. No inquiry into fairness. Personal liberty read as freedom from physical restraint. Articles of Part III treated as separate compartments.
• Move one: the compartments opened. A law affecting liberty must satisfy articles 14, 19 and 21 together, which brought reasonableness back in through article 19.
• Move two: procedure established by law means a procedure that is right, just and fair, and not arbitrary, fanciful or oppressive.
• Move three: life is not confined to mere animal existence and includes the right to live with human dignity and the bare necessaries of life.
• Three causes: the Emergency of 1975 to 1977; the Forty-fourth Amendment removing articles 20 and 21 from article 359; and public interest litigation putting the right facts before the Court.
• Three limits: article 21 is not absolute; the citizen limitation on article 19 survives; and the enlargement declared rights without supplying machinery.
• Article 9 of the Covenant carries both standards, arbitrary and established by law; India reached the first by construction.

Test yourself

1. What was the narrow reading of article 21, and what went with it? On the original construction the article asked only two questions: whether a law existed authorising the deprivation, and whether the procedure that law prescribed had been followed. It did not permit the court to ask whether the procedure was fair, because the Constituent Assembly had deliberately replaced the American formula of due process of law with the words procedure established by law, on advice that due process would allow an unelected judiciary to strike down social and economic legislation on its own view of what was reasonable. The construction was therefore faithful to the drafting history rather than perverse.

Two limitations went with it. Personal liberty was read narrowly, as freedom from physical restraint of the person, so restrictions falling short of detention did not engage the article at all. And the articles of Part III were treated as occupying separate and mutually exclusive fields, so that a law depriving a person of personal liberty was tested against article 21 alone and, if it satisfied that article, did not also have to satisfy article 19. The combined effect was that article 21 offered very little protection, and that was demonstrated during the Emergency, when the narrow reading together with the suspension under article 359 left a detained person unable to approach a court even to allege that the detention had no legal authority.

2. Describe the three moves by which article 21 was enlarged, and say why the order matters. The first move opened the compartments: the proposition that articles 14, 19 and 21 occupy mutually exclusive fields was rejected, so a law depriving a person of personal liberty must now satisfy article 21 by prescribing a procedure, article 14 by not being arbitrary or discriminatory, and article 19 by being a reasonable restriction on a permitted ground where one of the six freedoms is also affected. The second move construed the operative words: procedure established by law was held to mean a procedure that is right, just and fair and not arbitrary, fanciful or oppressive, so that a law prescribing an unfair procedure does not save the deprivation. The third move construed life: it was held not to be confined to mere animal existence but to include the right to live with human dignity and all that goes with it, namely the bare necessaries of life and the facilities for expressing oneself in diverse forms.

The order matters because the first move made the second possible. Article 19 had always required restrictions to be reasonable; once a law affecting personal liberty had to satisfy article 19 as well as article 21, the reasonableness inquiry became available in an article 21 case without the court having to read the word reasonable into article 21 itself. The second move then generalised that standard, and only after it was established could the third move do any work, because a substantive content for the word life is of little use if the article's only requirement remains that some procedure be followed.

3. Why did the reversal happen when it did, and what did it not achieve? Three causes. The Emergency of 1975 to 1977 demonstrated the cost of the narrow reading, and the Court's acquiescence in the proposition that article 21 could be suspended entirely is treated as the low point of its record, so much of what followed is properly understood as a repair of institutional standing. The Forty-fourth Amendment was a legislative statement to the same effect, since Parliament itself removed articles 20 and 21 from the article 359 power. And the arrival of public interest litigation, with its relaxed rule of standing, put before the Court the conditions of prisoners, undertrials, bonded labourers and pavement dwellers, which are exactly the facts that make a purely procedural article 21 look inadequate.

Three things it did not achieve. It did not make article 21 absolute: deprivation of life and liberty remains permissible provided the procedure is fair, just and reasonable, which is why capital punishment is not per se unconstitutional in India. It did not disturb the citizen limitation elsewhere, so a foreigner still holds no part of article 19 however wide article 21 has become. And it did not supply any machinery. A right read into article 21 is declared by a court and then has to be delivered by administrations, commissions and courts that were not enlarged along with the doctrine, which is the gap Module III examines and the honest theme of this paper.

Four: the Universal Declaration supplies the frame. The Court treated the Declaration as carrying moral and interpretive force in construing the fundamental rights, which is the proposition MU's Set 1 Q1 opens with when it calls the Declaration a model code that the Constitution is in consonance with.

What the decision does not hold

Three points that a careful answer makes, because overstating the case is the commonest error.

It does not give a foreigner article 19. The decision turns on the word person in article 21 and says nothing that would extend the citizen rights.

It does not create a general right to compensation for every constitutional violation. The public law remedy is discretionary and exceptional, and it is awarded where the violation is established, gross, and the ordinary remedy inadequate.

And it does not make the State liable for every act of every employee. The connection with employment and with premises under State control was material to the reasoning.

How to use it in her question

MU's Set 1 Q1 gives the candidate a long quotation and then says: discuss this statement in the light of this case.

The structure of the answer is therefore fixed.

Open with the quoted proposition: the Declaration as a model code, the Constitution in consonance with it, and some rights available only to citizens while others such as articles 14 and 21 are available to all persons.

Establish the textual distinction between person and citizen, with both lists.

Then give the case: facts, holding, and the four propositions.

Then test the quoted proposition against it. The case proves the second half of the quotation directly: article 21 was applied to a Bangladeshi national. It supports the first half by the Court's use of the Declaration in construing the right.

Then give the limits. The decision does not extend article 19, does not make compensation automatic, and does not make the State an insurer.

Close on what the case shows about enforcement, which is that a constitutional remedy reached a victim whom no ordinary remedy would have reached in time, and that this is the exception rather than the rule.

The wider significance for this paper

It is the clearest single authority on the relationship between the three modules.

Module I supplies the text: person, not citizen.

Module II supplies the doctrine: life includes dignity, and compensation lies in public law.

Module III supplies the remedy: article 226, and a court willing to use it.

And Module IV supplies the standard: the Declaration, used to construe the article.

A candidate who can say that has understood why the four modules are one paper.

What it does NOT mean

It does not mean every foreigner wronged in India can obtain compensation by writ. The remedy is discretionary and the facts here were extreme.

It does not mean the Declaration is directly enforceable in India. It was used to construe article 21, which is a different thing.

And it does not mean the case decides the position of refugees. It decides the position of a person present in India, whatever their nationality.

Quick revision

• The case: Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465.
• Facts: a Bangladeshi national gang-raped by Railway employees on railway premises at Howrah; a practising advocate, a stranger to the victim, moved the Calcutta High Court under article 226; ten lakh rupees awarded; the Railway Board appealed.
• Held: appeal dismissed. Article 21 protects any person, not merely a citizen. Rape violates the right to live with human dignity. The liability is the State's in public law, not vicarious liability in tort, and no sovereign function defence was available. Compensation may be awarded under article 226, and the stranger's petition was maintainable.
• Four propositions: article 21 for every person; life includes dignity; public law compensation; and the Declaration as an interpretive frame.
• Three limits: it does not extend article 19; compensation is not automatic; and the State is not an insurer for every act of every employee.

Test yourself

1. State the facts and the holding. In Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465, a Bangladeshi national who had come to India was gang-raped by employees of the Indian Railways in a building on railway premises at Howrah station. A practising advocate of the Calcutta High Court, who was a stranger to the victim, moved the High Court under article 226, and the High Court awarded compensation of ten lakh rupees against the Railways. The Railway Board appealed to the Supreme Court on three grounds: that the victim was a foreign national and so held no fundamental rights in India, that the acts were the private acts of the employees for which the State bore no liability, and that a stranger could not maintain the petition.

The Supreme Court dismissed the appeal and upheld the award. It held that article 21 is available to every person and not merely to citizens, the article using the word person where article 19 uses the word citizen, so the victim's nationality was immaterial. It held that rape violates the right to life, which includes the right to live with human dignity. It held that the wrongdoers were government servants and the wrong was committed on premises maintained by the Railways, so the liability was that of the State in public law rather than the vicarious liability of a private employer in tort, and no defence based on sovereign functions was available. It held that compensation could accordingly be awarded in the writ jurisdiction under article 226, and that the petition brought by a stranger in the public interest was maintainable.

2. What are the four propositions the case establishes, and how do they connect the modules of this paper? That article 21 belongs to every person, resting on the deliberate textual contrast between person in article 21 and citizen in article 19. That life includes dignity, which is the enlarged construction of article 21 without which there would be no route from a rape committed by individuals to the violation of a constitutional right. That the liability is in public law rather than tort, which matters because a suit against the State would have raised the sovereign function defence and would have taken many years, while the writ jurisdiction avoids both. And that the Universal Declaration carries interpretive force in construing the fundamental rights, which is the proposition MU's question opens with when it describes the Declaration as a model code with which the Constitution is in consonance.

The four propositions map onto the four modules of this paper, which is why the case is worth so much in an answer. Module I supplies the text, person and not citizen. Module II supplies the doctrine, that life includes dignity and that compensation lies in public law. Module III supplies the remedy, article 226 and a court prepared to use it. Module IV supplies the standard, the Declaration used to construe the article. A candidate who can draw that connection has explained why the four labels are one paper rather than four.

3. What does the case not decide, and why does that matter? Three things. It does not give a foreigner any part of article 19: the reasoning turns entirely on the word person in article 21 and says nothing that would extend the citizen rights, so a foreigner in India still has no constitutional freedom of movement, residence, expression or association. It does not create a general right to compensation for every constitutional violation: the public law remedy is discretionary and exceptional, granted where the violation is established and gross and the ordinary remedy inadequate, and the facts here were extreme. And it does not make the State an insurer against every act of every employee: the connection between the wrongdoers' employment and the premises under railway control was material to the conclusion that the liability was public rather than private.

That matters because overstating the case is the commonest error in answers on it. The decision is authority for a strong but bounded proposition, that a person present in India holds article 21 whatever their nationality and that a court may award compensation in the writ jurisdiction where the State's own servants have violated it. Presented as authority for a general right of foreigners to Part III, or for compensation as of right, it will be corrected by any examiner who knows the report, and the strength of the actual holding will be lost along with the exaggeration.

That four-stage journey is the model answer to any question about the relationship between Part III and Part IV, and it is why [The Interrelationship of Fundamental Rights and Directive Principles] uses it.

What article 21A does and does not guarantee

It guarantees free and compulsory education, both words carrying weight. Free means no fee or charge that prevents a child pursuing and completing elementary education. Compulsory places the obligation on the State to ensure admission, attendance and completion, rather than making non-attendance an offence for the parent.

It covers ages six to fourteen only. Below six the claim is a directive under the new article 45; above fourteen there is no constitutional right, and [What Part III Does Not Contain] returns to that gap.

It is addressed to the State, so the primary duty is public. The statutory obligation on private unaided schools comes from the 2009 Act read with article 15(5) and not from article 21A alone.

And it depends on a law. The words in such manner as the State may by law determine make the article's content statutory, which is a limitation and the reason the eight-year gap mattered.

The international correspondence

Article 26 of the Universal Declaration: everyone has the right to education; education shall be free, at least in the elementary and fundamental stages; elementary education shall be compulsory; and parents have a prior right to choose the kind of education given to their children.

Article 13 of the Economic and Social Covenant requires primary education to be compulsory and available free to all, and requires secondary and higher education to be made progressively free.

Article 28 of the Convention on the Rights of the Child requires States to make primary education compulsory and available free to all, to encourage the development of secondary education, and to take measures to encourage regular attendance and reduce drop-out rates.

So article 21A meets the primary education standard and stops short of the Covenant's progressive obligation on secondary education, which is a fair and specific criticism to make in an answer about how far India has implemented what she has ratified.

Worked example

Her Set 1 Q6 asks which Indian provisions reflect international standards for children; her Set 2 Q7(a) asks about the interrelationship of Part III and Part IV. Article 21A answers both.

Give the text and the amendment, with the 2002 and 2010 dates and the reason for the gap.

Give the three-part operation on articles 21A, 45 and 51A(k).

Give the four-stage journey, which is the heart of the answer.

Say what free and compulsory each mean.

Give the limits: the age band, the addressee, and the dependence on a statute.

Close on the international correspondence, naming article 26 of the Declaration, article 13 of the Covenant and article 28 of the Convention, and note the secondary education gap.

What it does NOT mean

It does not make education a right at any age. The band is six to fourteen.

It does not make non-attendance an offence for the parent. Compulsory describes the State's obligation to secure admission, attendance and completion.

And it does not by itself bind private schools. That obligation comes from the 2009 Act read with article 15(5).

Quick revision

• Article 21A: 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.
• Constitution (Eighty-sixth Amendment) Act, 2002, in force 1 April 2010, the same day as the implementing Act. Eight-year gap, because the article needs a law for its content.
• Three-part operation: inserted 21A in Part III; substituted article 45, now early childhood care and education until the age of six; inserted article 51A(k), a parent's duty for ages six to fourteen.
• Four stages: directive in the original article 45; read into article 21; written into Part III by amendment; given content by the 2009 Act.
• Free means no charge preventing completion; compulsory binds the State to secure admission, attendance and completion.
• Limits: six to fourteen only; addressed to the State; content depends on a statute.
• Correspondence: article 26 of the Declaration, article 13 of the Economic and Social Covenant, article 28 of the Convention on the Rights of the Child. India meets the primary standard and stops short on secondary.

Test yourself

1. What does article 21A provide, and what else did the Eighty-sixth Amendment do? Article 21A provides that 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. It was inserted by the Constitution (Eighty-sixth Amendment) Act, 2002 and brought into force on 1 April 2010, the same day on which the Right of Children to Free and Compulsory Education Act 2009 commenced. The eight-year gap between amendment and commencement is explained by the closing words of the article: the right needs a law to give it manner and content, and until that law existed the article could not sensibly be operative.

The amendment did two further things, which is why it is unusual. It substituted article 45, which had originally directed the State to endeavour to provide free and compulsory education for all children until the age of fourteen within ten years of the commencement of the Constitution, and which now directs the State to provide early childhood care and education for all children until they complete the age of six, covering the band article 21A leaves out. And it inserted article 51A(k), a fundamental duty on a parent or guardian to provide opportunities for education to their child or ward between the ages of six and fourteen. The amendment therefore operates on Part III, Part IV and Part IVA simultaneously, which no other amendment does.

2. Trace the four stages of the right to education, and say why they matter. Stage one, a directive only: the original article 45 required the State to endeavour to provide free and compulsory education for all children until fourteen within ten years, and by article 37 it was not enforceable in any court. The ten years passed unfulfilled. Stage two, read into article 21: the Supreme Court held that the right to education flows from the right to life, reasoning that dignity and a meaningful life require it, and that a directive left unfulfilled for decades acquires force through article 21. That produced a judicially declared and enforceable right. Stage three, written into Part III: Parliament enacted the Eighty-sixth Amendment, confirming the judicial position, fixing a defined age band, and routing the content through a statute. Stage four, given content by statute: the Right of Children to Free and Compulsory Education Act 2009 supplies the entitlements, the obligations on schools, the norms and the monitoring.

They matter because this is the only complete example on the paper of a claim travelling all the way from a non-justiciable directive to an enforceable fundamental right with implementing legislation behind it. It shows that the boundary between Part III and Part IV is permeable, that the court can move a claim across it and Parliament can confirm the move, and that neither step is sufficient without the third, since a right in Part III with no statute behind it sat inert for eight years. Any answer on the interrelationship of the two Parts should use this sequence rather than argue in the abstract.

3. How far does article 21A meet India's international obligations? Closely on primary education and incompletely beyond it. Article 26 of the Universal Declaration provides that everyone has the right to education, that education shall be free at least in the elementary and fundamental stages, that elementary education shall be compulsory, and that parents have a prior right to choose the kind of education given to their children. Article 13 of the Economic and Social Covenant requires primary education to be compulsory and available free to all, and requires secondary education in its different forms, and higher education, to be made generally available and accessible with the progressive introduction of free education. Article 28 of the Convention on the Rights of the Child requires States to make primary education compulsory and available free to all, to encourage the development of different forms of secondary education, to make higher education accessible on the basis of capacity, and to take measures to encourage regular attendance and reduce drop-out rates.

Article 21A satisfies the primary limb: education from six to fourteen, free and compulsory, with a statute supplying the machinery. It stops there. There is no constitutional right to education above fourteen, so the Covenant's obligation to make secondary education generally available and progressively free, and the Convention's obligation to encourage its development, rest in India on policy and on Part IV rather than on any enforceable right. That is a specific and defensible criticism to make in an answer on the gap between what India has ratified and what she has implemented, and it is more useful than a general complaint that implementation is poor.

Clause (5) requires the detaining authority, as soon as may be, to communicate the grounds of the order and to afford the earliest opportunity of making a representation against it.

Clause (6) permits the authority to withhold facts which it considers to be against the public interest to disclose, which is the clause that hollows out clause (5).

Clause (7) empowers Parliament to prescribe the circumstances and classes of cases in which a person may be detained beyond three months without an Advisory Board's opinion, and the maximum period.

The amendment that was never brought into force

This is a specific and checkable point that most answers miss.

Section 3 of the Constitution (Forty-fourth Amendment) Act 1978 substituted a new clause (4). The new clause would reduce the period from three months to two months, would require the Advisory Board to be constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court, and would require the Chairman to be a serving Judge of that High Court with the other members serving or retired Judges of any High Court.

That substitution has never been notified. The bare Act prints it with the words date yet to be notified.

So the operative clause (4) is still the original: three months, and an Advisory Board whose members need only be qualified to be appointed as High Court judges.

The point is worth making in any answer on preventive detention or on the Forty-fourth Amendment, because it shows that the constitutional response to the Emergency was completed in some respects and left incomplete in this one.

Why article 22 is on a human rights paper

It is the Constitution's own compromise between liberty and executive power, and it is the compromise Module III has to work with.

It is the constitutional authority for the preventive detention statutes, and therefore for a large part of the detention litigation that reaches the writ courts.

And it sets the baseline that the Supreme Court later supplemented. Because clause (5) can be defeated by clause (6), and because the ordinary protections do not apply at all to preventive detention, the Court built additional safeguards through article 21, which [Custodial Violence, and the Guidelines on Arrest] records.

The international correspondence

Article 9 of the Universal Declaration: no one shall be subjected to arbitrary arrest, detention or exile.

Article 9 of the Civil and Political Covenant is far more detailed: prompt information of the reasons for arrest and of any charge; prompt production before a judge or other officer authorised by law to exercise judicial power; trial within a reasonable time or release; the right to take proceedings before a court to decide the lawfulness of the detention; and an enforceable right to compensation for unlawful arrest or detention.

Two divergences worth naming. The Covenant's article 9 makes no exception for preventive detention comparable to article 22(3)(b), and India entered a declaration on article 9 to the effect that it would be applied in a manner consistent with the constitutional provisions on preventive detention. And the Covenant's enforceable right to compensation has no counterpart in article 22, which is why [Compensation in Public Law] had to be built by the courts.

Worked example

A question on the rights of an arrested or detained person.

Give clauses (1) and (2) in full, noting that travelling time is excluded and that both apply to every person.

Give clause (3) and both exclusions, stressing that enemy alien is narrow.

Give the preventive detention scheme, clauses (4) to (7), and identify clause (6) as the one that weakens clause (5).

Give the unnotified Forty-fourth Amendment substitution, with what it would have changed.

Close on the international comparison, naming India's declaration on article 9 of the Covenant and the absent compensation right.

What it does NOT mean

It does not mean a foreigner loses article 22. Only an enemy alien does, and that means a national of a State at war with India.

It does not mean preventive detention is unconstitutional. The Constitution provides for it in terms.

And it does not mean the Forty-fourth Amendment reduced the period to two months. The substitution exists in the amending Act and has never been brought into force.

Quick revision

• 22(1): informed as soon as may be of the grounds; right to consult and be defended by a legal practitioner of his choice. 22(2): production before the nearest magistrate within twenty-four hours, excluding journey time.
• Both apply to every person, including a foreigner.
• 22(3) excludes (a) an enemy alien, meaning a national of a State at war with India, and (b) a person detained under a preventive detention law.
• 22(4): no detention beyond three months without an Advisory Board of persons qualified to be High Court judges reporting sufficient cause.
• 22(5): grounds communicated as soon as may be, and the earliest opportunity of making a representation. 22(6): facts may be withheld in the public interest, which hollows out 22(5). 22(7): Parliament may prescribe detention beyond three months without a Board, and the maximum period.
• The Forty-fourth Amendment's substituted clause (4) has NEVER been notified. It would have reduced three months to two, required the Board to be constituted on the Chief Justice's recommendations, and required a serving Judge as Chairman. The original clause is still the law.
• Correspondence: article 9 of the Declaration; article 9 of the Covenant, which has no preventive detention exception and carries an enforceable right to compensation. India entered a declaration on article 9.

Test yourself

1. What protections does article 22 give, and from whom does it withdraw them? Clause (1) provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for the arrest, nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice. Clause (2) provides that every person arrested and detained shall be produced before the nearest magistrate within twenty-four hours of the arrest, excluding the time necessary for the journey from the place of arrest to the court, and that no such person shall be detained beyond that period without a magistrate's authority. Both clauses apply to every person and not merely to citizens, so a foreigner arrested in India holds them, and the exclusion of travelling time from the twenty-four hours is a real qualification that is often misstated.

Clause (3) withdraws both protections from two categories. The first is any person who for the time being is an enemy alien, and the category is narrow: it means a national of a State at war with India, not any foreigner and not a person the executive regards as hostile. The second is any person arrested or detained under a law providing for preventive detention, and this is the significant exclusion, because it means that the ordinary protections attending a criminal arrest do not apply at all to a preventive detainee, who is governed instead by the weaker scheme in clauses (4) to (7).

2. Set out the preventive detention scheme, and identify its weak point. Clause (4) provides that no preventive detention law shall authorise detention for longer than three months unless an Advisory Board consisting of persons who are, have been, or are qualified to be appointed as Judges of a High Court has reported before the expiry of those three months that there is in its opinion sufficient cause for the detention, or unless the person is detained under a law made by Parliament under clause (7). Clause (5) requires the detaining authority, as soon as may be, to communicate to the detainee the grounds on which the order has been made and to afford him the earliest opportunity of making a representation against it. Clause (7) empowers Parliament to prescribe the circumstances and the classes of cases in which a person may be detained beyond three months without an Advisory Board's opinion, and to prescribe the maximum period of detention.

The weak point is clause (6), which provides that nothing in clause (5) requires the authority to disclose facts which it considers to be against the public interest to disclose. Clause (5) gives the detainee the grounds and the right to represent against them; clause (6) allows the authority to withhold the facts on which those grounds rest, in its own judgment of the public interest. A representation against grounds whose factual basis is withheld is of limited use, and that is why the courts have had to supplement the article through article 21, requiring that the grounds be communicated in a language the detainee understands, that the representation be considered with reasonable expedition, and that unexplained delay vitiates the detention.

3. What did the Forty-fourth Amendment do to article 22, and why does the answer surprise people? Section 3 of the Constitution (Forty-fourth Amendment) Act 1978 substituted a new clause (4) which would have made three changes. It would have reduced the period of detention permitted without an Advisory Board's report from three months to two. It would have required the Advisory Board to be constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court, rather than by the detaining government. And it would have required the Chairman of the Board to be a serving Judge of that High Court, with the other members serving or retired Judges of any High Court, in place of the existing test of persons merely qualified to be appointed as High Court judges.

The surprise is that none of it is in force. The substitution was enacted in 1978 and its commencement was left to notification, and it has never been notified: the bare Act prints the substituted clause with the words date yet to be notified beside it. The operative article 22(4) is therefore still the original, with three months and a Board whose members need only be qualified for appointment. The point is worth making in any answer on preventive detention or on the constitutional response to the Emergency, because it shows that the response was completed in some respects, notably the removal of articles 20 and 21 from the article 359 power, and left deliberately incomplete in this one, nearly five decades later.

It is confined to factories, mines and other hazardous employment. It does not prohibit all child labour, and that limitation is the honest point to make: a child below fourteen may lawfully be employed, so far as article 24 is concerned, in work that is not hazardous.

And the age is fourteen, which is the same age as the upper limit in article 21A. That alignment is deliberate: the child who must be in school under article 21A is the child who may not be in a factory under article 24.

The three articles that work together

Articles 21A, 23 and 24 form a scheme for the child, and an answer that presents them together is doing better than one that takes them separately.

Article 21A requires the State to provide free and compulsory education from six to fourteen.

Article 24 prohibits hazardous employment below fourteen.

Article 23 prohibits forced labour, including labour at less than the minimum wage, at any age.

Article 39(e) and (f) in Part IV direct the State to ensure that the tender age of children is not abused, that citizens are not forced by economic necessity into unsuitable work, and that children are given opportunities to develop in conditions of freedom and dignity.

And the statutes are the Child Labour (Prohibition and Regulation) Act 1986 as amended, the Bonded Labour System (Abolition) Act 1976, and the juvenile and child protection legislation taken in Module IV.

The international correspondence

Article 4 of the Universal Declaration: no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 8 of the Civil and Political Covenant prohibits slavery, the slave trade, servitude and forced or compulsory labour, and lists the exceptions, which include work required of a lawfully detained person, military service, service exacted in an emergency threatening the life of the community, and normal civil obligations.

Article 8 is non-derogable in part under article 4(2) of the Covenant, the prohibitions on slavery and servitude being among those that survive an emergency.

Article 32 of the Convention on the Rights of the Child recognises the right of the child to be protected from economic exploitation and from any work likely to be hazardous, to interfere with education, or to be harmful to health or development, and requires States to provide for a minimum age of employment, regulation of hours and conditions, and penalties.

India entered a declaration on article 32, to the effect that it would progressively implement the provision consistently with its national circumstances rather than prescribe a single minimum age immediately. That declaration is directly examinable under MU's Set 1 Q6 and is taken in [India's Ratification of the Convention on the Rights of the Child].

Worked example

A question on the right against exploitation, or on children's rights in the Constitution.

Quote both articles, because they are short.

On article 23, give the three prohibited things and then the construction that makes payment below the minimum wage forced labour, which is the whole of its modern importance.

On article 24, give the four features, and be honest that it prohibits hazardous employment rather than all child labour.

Give the scheme: articles 21A, 23, 24 and 39(e) and (f) together.

Close on the correspondence, and name India's declaration on article 32 of the Convention.

What it does NOT mean

It does not mean article 24 prohibits all child labour. It prohibits factory, mine and other hazardous employment below fourteen.

It does not mean article 23 requires payment. It requires that labour not be forced, and the minimum wage doctrine gets there by treating economic compulsion as force.

And it does not mean compulsory public service is unconstitutional. Article 23(2) permits it, subject to the non-discrimination requirement.

Quick revision

• 23(1): traffic in human beings and begar and other similar forms of forced labour are prohibited, and contravention shall be an offence punishable in accordance with law. 23(2): compulsory service for public purposes permitted, with no discrimination on grounds only of religion, race, caste or class.
• Three prohibited things: traffic, begar, and other similar forms of forced labour, the last being the residuary and widest.
• Forced labour includes labour compelled by economic circumstance, so payment below the minimum wage is itself forced labour under article 23. That construction is what brings bonded labour cases into article 32.
• Article 24: no child below fourteen in any factory or mine or other hazardous employment. Absolute, binds everybody, confined to hazardous work, and the age matches article 21A.
• The scheme: 21A education six to fourteen; 24 no hazardous work below fourteen; 23 no forced labour at any age; 39(e) and (f) in Part IV.
• Correspondence: article 4 of the Declaration; article 8 of the Covenant, partly non-derogable; article 32 of the Convention on the Rights of the Child, on which India entered a declaration.

Test yourself

1. What does article 23 prohibit, and what construction gives it its modern reach? Article 23(1) provides that traffic in human beings and begar and other similar forms of forced labour are prohibited, and that any contravention shall be an offence punishable in accordance with law. Three things are prohibited: traffic in human beings, meaning dealing in human beings as chattels, which covers slavery, the buying and selling of persons and trafficking for prostitution or for labour; begar, meaning labour or service exacted without payment, which is the Constitution's own word for the historical obligation to work for a superior for nothing; and other similar forms of forced labour, which is the residuary phrase and the widest of the three. Clause (2) permits the State to impose compulsory service for public purposes but forbids discrimination in doing so on grounds only of religion, race, caste or class.

The construction that gives the article its modern reach is that forced labour includes labour compelled by economic circumstance and not merely by physical force or legal compulsion. The reasoning is that a person driven by hunger and want to accept work at less than the statutory minimum wage is not acting freely, so paying below the minimum wage is itself a form of forced labour within the article. That single move converted a prohibition on slavery into a constitutional guarantee of the minimum wage, and it is the mechanism by which bonded labour cases reach the Supreme Court directly under article 32 rather than through a labour statute.

2. What does article 24 prohibit, and what does it leave untouched? It provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Four features distinguish it. It is absolute in its field, carrying no restriction clause and no exception. It binds everybody rather than only the State, being addressed at large like articles 15(2), 17 and 23, so a private employer breaches it directly. Its age limit of fourteen is aligned with the upper limit of article 21A, which is deliberate: the child who must be in school under one article is the child who may not be in a factory under the other. And its field is defined by the nature of the work.

What it leaves untouched is non-hazardous employment. Article 24 does not prohibit all child labour; it prohibits factory work, mining and other hazardous employment for those under fourteen. A child below fourteen employed in work that is not hazardous does not, on the face of the article, engage it at all, and the protection in such cases has to come from statute, principally the Child Labour (Prohibition and Regulation) Act 1986 as amended, or from article 21A's requirement that the child be in school. That limitation should be stated plainly rather than glossed over, because an answer that presents article 24 as abolishing child labour is wrong on the text.

3. How do the Indian provisions compare with the international standards on child labour? Article 4 of the Universal Declaration provides that no one shall be held in slavery or servitude and that slavery and the slave trade shall be prohibited in all their forms. Article 8 of the Civil and Political Covenant prohibits slavery, the slave trade, servitude and forced or compulsory labour, while listing exceptions for work required of a lawfully detained person, military and substitute service, service exacted in an emergency threatening the life of the community, and normal civil obligations; the prohibitions on slavery and servitude are among the non-derogable provisions under article 4(2). Article 32 of the Convention on the Rights of the Child recognises the right of the child to be protected from economic exploitation and from any work likely to be hazardous, to interfere with the child's education, or to be harmful to health or to physical, mental, spiritual, moral or social development, and requires States to provide a minimum age for admission to employment, appropriate regulation of hours and conditions, and penalties to enforce it.

The Indian position broadly matches the slavery and forced labour standards, and article 23's minimum wage construction goes beyond them. On child labour it is narrower in one respect and matched by statute in another. Article 24 covers only hazardous work, whereas article 32 of the Convention is addressed to economic exploitation generally. And India entered a declaration on article 32 when ratifying, to the effect that it would implement the provision progressively and consistently with national circumstances rather than prescribing a single minimum age of employment immediately. That declaration is directly examinable on MU's Set 1 Q6, which asks how India's ratification of the Convention shaped its domestic legislative framework.

Article 27

No person shall be compelled to pay any taxes the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

The operative words are tax, specifically appropriated, and particular.

A fee is not a tax, so a levy charged for services rendered in the administration of an endowment is outside the article.

And the appropriation must be to a particular religion, so general expenditure that incidentally benefits several religions does not offend it.

Article 28

28(1). No religious instruction shall be provided in any educational institution wholly maintained out of State funds.

28(2). Clause (1) does not apply to an institution administered by the State but established under an endowment or trust which requires that religious instruction be imparted.

28(3). No person attending an institution recognised by the State or receiving aid out of State funds shall be required to take part in religious instruction or to attend religious worship without their consent, or that of their guardian if a minor.

The scheme is graduated by funding, and a candidate should present it as a table rather than as prose.

Why these articles are on this paper

Two reasons.

They are the classic freedom of conscience guarantee, corresponding to article 18 of the Universal Declaration and article 18 of the Civil and Political Covenant, and they are available to every person rather than only to citizens.

And they are where the Constitution's commitment to social reform collides with religious freedom. Article 25(2)(b) and article 17 permit the State to legislate against religiously grounded exclusion, and the opening words of article 25 subject the right to the other provisions of Part III, which means equality prevails. That collision is a standing subject of Indian human rights argument and it belongs in any answer about the Constitution's own conception of rights.

The international correspondence

Article 18 of the Universal Declaration: freedom of thought, conscience and religion, including freedom to change one's religion or belief, and freedom to manifest it in teaching, practice, worship and observance.

Article 18 of the Civil and Political Covenant is fuller: the freedom to have or to adopt a religion or belief of one's choice, freedom from coercion which would impair that freedom, a limitation clause confined to what is prescribed by law and necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, and respect for the liberty of parents to ensure the religious and moral education of their children in conformity with their own convictions.

Article 18 is non-derogable under article 4(2) of the Covenant.

Two divergences worth naming. The Declaration expressly includes the freedom to change one's religion, which article 25 does not state in terms. And the Covenant's limitation clause requires the restriction to be necessary, a stricter standard than article 25's bare subject to public order, morality and health.

Worked example

A question on freedom of religion, or on the limits the Constitution places on rights.

Quote article 25(1) including its opening words, because the limits come first in the sentence.

Separate conscience from profession, practice and propagation.

Give clause (2) and the two Explanations, and identify (2)(b) as the reform clause.

Give article 26 and the (b) against (d) distinction.

Give article 27's three operative words.

Give article 28 as the funding table.

Close on the correspondence and the two divergences, the freedom to change and the necessity standard.

What it does NOT mean

It does not mean religious freedom is absolute. Every article in the group opens with its limits.

It does not mean the State may not regulate religious institutions. Article 26(d) makes administration of property subject to law, and article 25(2)(a) permits regulation of secular activity associated with religious practice.

And it does not mean religious instruction is banned in Indian schools. It is banned only in institutions wholly maintained out of State funds.

Quick revision

• 25(1): subject to public order, morality and health and to the other provisions of this Part, all persons equally entitled to freedom of conscience and to freely profess, practise and propagate religion.
• 25(2)(a) regulation of economic, financial, political or other secular activity; 25(2)(b) social welfare and reform and throwing open Hindu religious institutions. Explanation I kirpans; Explanation II Sikhs, Jains and Buddhists included.
• Article 26, a denomination's right: (a) establish and maintain institutions, (b) manage its own affairs in matters of religion, (c) own and acquire property, (d) administer such property in accordance with law. (b) is for the denomination, (d) is subject to State law.
• Article 27: no compulsion to pay a tax specifically appropriated for a particular religion. A fee is not a tax.
• Article 28, graduated by funding: wholly maintained, no instruction; State-administered under a trust requiring it, permitted; recognised or aided, permitted but no compulsion without consent.
• Correspondence: article 18 of the Declaration, which includes the freedom to change religion; article 18 of the Covenant, non-derogable, whose limitation clause requires the restriction to be necessary.

Test yourself

1. Set out article 25 and explain what its opening words do. Article 25(1) provides that, subject to public order, morality and health and to the other provisions of Part III, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. Clause (2) preserves any existing law and permits the State to make laws regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, and providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I deems the wearing and carrying of kirpans to be included in the profession of the Sikh religion, and Explanation II construes the reference to Hindus as including Sikhs, Jains and Buddhists.

The opening words do two distinct things. Subject to public order, morality and health imports the ordinary limits that attach to a manifestation of belief, which is why the article is not absolute. And subject to the other provisions of this Part subordinates the religious freedom to the rest of Part III, so that where article 25 conflicts with article 14, article 15, article 17 or article 21, the other article prevails. That second phrase is the doctrinally important one, because it is what allows the equality guarantees and the abolition of untouchability to operate against a practice defended on religious grounds, and it should be quoted rather than paraphrased.

2. What is the difference between article 25 and article 26, and what turns on clause (d)? The holder is different. Article 25 confers an individual right, held by all persons, to freedom of conscience and to profess, practise and propagate religion. Article 26 confers a right on a religious denomination or any section of one: to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire movable and immovable property, and to administer such property in accordance with law. Both are subject to public order, morality and health, but article 26 is not made subject to the other provisions of Part III in the way article 25 is.

What turns on clause (d) is the extent of permissible State control. Clause (b) gives the denomination the right to manage its own affairs in matters of religion, and those matters are for the denomination itself to determine, with the courts confining themselves to deciding whether a practice is essentially religious. Clause (d), by contrast, gives the right to administer property expressly in accordance with law, which means the State may legislate to regulate that administration. The distinction between managing matters of religion and administering property is therefore the line along which most of the litigation about State control of religious endowments runs, and an answer that does not draw it cannot explain why endowment legislation is generally upheld while interference in religious practice is generally not.

3. Set out the scheme of article 28 and compare the Indian position with the Covenant. Article 28 is graduated by funding. In an educational institution wholly maintained out of State funds, no religious instruction may be provided at all. In an institution administered by the State but established under an endowment or trust which requires religious instruction to be imparted, the prohibition does not apply and instruction is permitted. In an institution recognised by the State or receiving aid out of State funds, instruction may be given but no person attending may be required to take part in it, or to attend any religious worship conducted there or on attached premises, without their own consent or, if they are a minor, the consent of their guardian. A wholly private institution that is neither recognised nor aided falls outside the article.

The Covenant is fuller and stricter in two respects. Article 18 of the Civil and Political Covenant guarantees freedom of thought, conscience and religion including the freedom to have or to adopt a religion or belief of one's choice, prohibits coercion which would impair that freedom, confines limitations to those prescribed by law and necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others, and requires States to respect the liberty of parents to ensure the religious and moral education of their children in conformity with their own convictions. It is non-derogable under article 4(2). The two divergences worth naming are that the Universal Declaration's article 18 expressly includes the freedom to change one's religion, which article 25 does not state in terms, and that the Covenant requires a limitation to be necessary, which is a stricter standard than article 25's bare subjection to public order, morality and health.

And article 30 is not confined to religious minorities. Linguistic minorities hold it equally, and the article says so.

The relationship between 29(2) and 30(1), which is the hard part

The tension is real and is worth stating plainly.

Article 30(1) lets a minority establish and administer an institution of its choice, which suggests it may admit its own community.

Article 29(2) says no citizen shall be denied admission to an institution receiving State aid on grounds only of religion, race, caste or language.

The resolution turns on aid. An unaided minority institution is outside article 29(2) and may fill its seats in accordance with its minority character. An aided minority institution is within article 29(2), so it cannot refuse a citizen admission on a listed ground, though it may reserve a reasonable proportion of seats for its own community consistently with its character.

Article 15(5) then enters, permitting the State to make special provision for backward classes in admissions to private institutions, other than minority institutions under article 30(1), which is the express constitutional carve-out.

Why these articles are on a human rights paper

They are the Constitution's group rights, and they sit awkwardly beside a Part III otherwise built on individual claims.

They are the answer to a real problem: a majority acting entirely through neutral, individually equal rules can extinguish a minority language or culture within two generations without ever discriminating against any individual.

And they show the Indian conception of equality, which accepts that formal equal treatment is not always equal treatment, the same premise that carries articles 15(3) to (6) and 16(4).

The international correspondence

Article 27 of the Civil and Political Covenant: in States where ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

Article 26 of the Universal Declaration gives parents a prior right to choose the kind of education given to their children.

Article 2 of the Convention on the Rights of the Child forbids discrimination on grounds including language, and article 30 protects the right of a child of a minority or indigenous origin to enjoy their own culture, profess and practise their own religion, and use their own language.

The Indian articles go further than article 27 of the Covenant, because article 27 is framed negatively as a right not to be denied, while article 30 confers a positive right to establish and administer institutions, backed by article 30(2)'s guarantee of non-discrimination in aid. That is a fair point in India's favour in a Module IV answer.

Worked example

A question on minority rights or on the group rights in the Constitution.

Give article 29(1) and stress that it says any section of the citizens, so it is not confined to minorities despite the marginal note.

Give 29(2) and compare its grounds with article 15(1), noting language in one and sex and place of birth in the other.

Give article 30 with its four features, especially the absence of a restriction clause and the conjunctive establish and administer.

Give the 29(2) against 30(1) tension and resolve it on aid.

Note the article 15(5) carve-out.

Close on article 27 of the Covenant and say that article 30 goes further, because it is positive where article 27 is negative.

What it does NOT mean

It does not mean article 29 is a minority right. Clause (1) belongs to any section of citizens; only the marginal note says minorities.

It does not mean article 30 is absolute. The State may regulate for educational standards without destroying the minority character.

And it does not mean a minority institution may exclude everyone else. If it takes State aid, article 29(2) applies to it.

Quick revision

• 29(1): any section of the citizens with a distinct language, script or culture has the right to conserve it. Not confined to minorities, whatever the marginal note says.
• 29(2): no citizen denied admission to an institution maintained by the State or receiving aid on grounds only of religion, race, caste, language. Compare article 15(1): language is here and not there; sex and place of birth are there and not here.
• 30(1): all minorities, whether based on religion or language, may establish and administer educational institutions of their choice. No restriction clause. Establish and administer is conjunctive. Minority is judged at State level.
• 30(1A): compulsory acquisition, the amount fixed must not abrogate the right. 30(2): no discrimination in aid on the ground of minority management.
• The 29(2) against 30(1) tension resolves on AID: an unaided minority institution is outside 29(2); an aided one is within it.
• Article 15(5) expressly excepts minority institutions under article 30(1).
• Correspondence: article 27 of the Covenant, framed negatively; article 26 of the Declaration; articles 2 and 30 of the Convention on the Rights of the Child. Article 30 goes further than article 27.

Test yourself

1. Who holds article 29, and how do its two clauses differ? Clause (1) belongs to any section of the citizens residing in the territory of India or any part of it having a distinct language, script or culture of its own, and gives them the right to conserve it. The words are any section of the citizens, so it is not a minority right: a majority community with a distinct language, script or culture holds it too. The marginal note describes the article as protecting the interests of minorities, and the marginal note does not control the text. It is also a group-facing right, the interest protected being the conservation of a shared language, script or culture.

Clause (2) is different in kind. It is an individual right, held by any citizen, not to be denied admission into an educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Its grounds are worth comparing with article 15(1), because the lists are not the same: language appears in article 29(2) and not in article 15(1), while sex and place of birth appear in article 15(1) and not in article 29(2). And its reach is limited by funding: a wholly private institution that is neither maintained by the State nor aided out of State funds falls outside it entirely.

2. Set out article 30, and explain how its tension with article 29(2) is resolved. Article 30(1) provides that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. Clause (1A) requires that, where a law provides for the compulsory acquisition of the property of such an institution, the amount fixed by or determined under that law must not be such as would restrict or abrogate the right. Clause (2) forbids the State, in granting aid, to discriminate against any educational institution on the ground that it is under the management of a minority. Four features matter: the article carries no restriction clause on its face, so the extent of permissible regulation has had to be worked out by construction; establish and administer is conjunctive, so a minority must have established the institution to claim the right to administer it; minority status is judged at the State level for a State law, since composition varies; and the article covers linguistic as well as religious minorities in terms.

The tension with article 29(2) is that article 30(1) suggests a minority institution may admit its own community, while article 29(2) forbids denying a citizen admission to an aided institution on grounds of religion or language. The resolution turns on aid. An unaided minority institution is outside article 29(2) altogether and may fill its seats consistently with its minority character. An aided minority institution is within article 29(2) and cannot refuse a citizen admission on a listed ground, though it may reserve a reasonable proportion of seats for its own community so as to preserve the character the article protects. Article 15(5) then supplies an express carve-out, permitting the State to make special provision for backward classes in admissions to private institutions other than minority institutions referred to in article 30(1).

3. How do these articles compare with the international standards? Article 27 of the Civil and Political Covenant is the closest counterpart: in States where ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. Article 26 of the Universal Declaration gives parents a prior right to choose the kind of education given to their children. Article 2 of the Convention on the Rights of the Child forbids discrimination on grounds including language, and article 30 of that Convention protects the right of a child of minority or indigenous origin to enjoy their own culture, to profess and practise their own religion, and to use their own language.

The Indian provisions go further than article 27 in an important respect, and this is a fair point to make in India's favour. Article 27 is framed negatively, as a right not to be denied, which imposes an obligation of non-interference rather than of provision. Article 30(1) confers a positive right to establish and administer educational institutions, and article 30(2) backs it by forbidding discrimination in the grant of aid on the ground of minority management. So where the Covenant guarantees that a minority may be left alone to use its language, the Constitution guarantees that it may build and run the institutions through which the language is transmitted, and that the State may not withhold aid because it does so.

Four things to note, and they are all examinable.

The word is abrogated, not merely restricted. Parliament may take a fundamental right away entirely in its application to these categories.

The categories were widened. The original article covered the armed forces and forces charged with the maintenance of public order; intelligence organisations and their telecommunication systems were added by amendment.

The purpose clause limits it: the restriction or abrogation must be so as to ensure the proper discharge of their duties and the maintenance of discipline among them. That is a real limit and it is the ground on which an over-broad exercise could be challenged.

And it operates on the rights of members of the forces, not on the rights of civilians they deal with. This is the point most answers miss. Article 33 lets Parliament curtail a soldier's own fundamental rights; it is not the source of any power to curtail a civilian's. So the difficulty with the Armed Forces (Special Powers) Act is not that article 33 authorises it, and [AFSPA Assessed Against the Rule of Law] has to make its case on other ground.

Article 34: martial law

Notwithstanding anything in the foregoing provisions of Part III, Parliament may by law indemnify any person in the service of the Union or of a State, or any other person, in respect of any act done in connection with the maintenance or restoration of order in any area where martial law was in force, or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law.

Three points.

Martial law is not defined in the Constitution and is not the same as a proclamation of emergency under article 352, which is a distinct mechanism with its own consequences.

The indemnity is retrospective and complete, and it can validate sentences already passed.

And it requires an Act of Parliament, which is the only safeguard the article contains.

Article 35: implementation reserved to Parliament

Notwithstanding anything in the Constitution, Parliament shall have, and a State Legislature shall not have, power to make laws with respect to the matters that may be provided for by parliamentary law under article 16(3), article 32(3), article 33 and article 34, and for prescribing punishment for those acts which are declared to be offences under Part III; and Parliament shall, as soon as may be after the commencement of the Constitution, make such laws.

The second limb is what matters here. The offences declared by Part III are those under article 17 and article 23(1), and article 35 makes the punishing legislation exclusively Parliament's. That is why the Protection of Civil Rights Act 1955 and the atrocities Act are central Acts.

Worked example

A question on the limits the Constitution itself places on fundamental rights, or on the constitutional position of the armed forces.

Say that article 31 is gone and that property is now article 300A, outside Part III, requiring only authority of law.

Give 31A, 31B and 31C briefly, and note that the Ninth Schedule is not absolute immunity.

Give article 33 in full, with the four points, and stress that it operates on the rights of members of the forces and not on civilians.

Give article 34 and its three points.

Give article 35 and connect it to articles 17 and 23, which is why the implementing statutes are central Acts.

What it does NOT mean

It does not mean property is unprotected in India. Article 300A requires authority of law, and statutes such as the 2013 Act supply the substantive protection.

It does not mean the Ninth Schedule confers absolute immunity. A law placed there after the basic structure doctrine was established remains challengeable on that ground.

And it does not mean article 33 authorises restricting civilians' rights. It authorises restricting the rights of members of the forces.

Quick revision

• Article 31 was omitted from Part III by the Forty-fourth Amendment, along with article 19(1)(f). Property is now article 300A: no person shall be deprived of his property save by authority of law. Not a fundamental right; no constitutional compensation requirement; available to any person.
• 31A estates; 31B the Ninth Schedule, not absolute immunity after the basic structure doctrine; 31C laws giving effect to article 39(b) and (c), the wider version having been struck down.
• Article 33: Parliament may restrict or abrogate Part III rights for (a) the Armed Forces, (b) forces charged with maintenance of public order, (c) intelligence or counter intelligence organisations, (d) their telecommunication systems, so as to ensure the proper discharge of their duties and the maintenance of discipline. It operates on the rights of MEMBERS of the forces, not on civilians.
• Article 34: martial law indemnity by Act of Parliament, retrospective and able to validate sentences. Martial law is undefined and is not article 352 emergency.
• Article 35: implementing legislation reserved to Parliament, including punishment for the offences declared by article 17 and article 23(1).

Test yourself

1. What happened to the right to property, and what follows? Article 31 conferred the right to property, was the most amended provision in the Constitution, and was omitted from Part III by the Forty-fourth Amendment, which at the same time deleted article 19(1)(f), the freedom to acquire, hold and dispose of property. Property is now protected by article 300A, which sits outside Part III in Chapter IV of Part XII and provides that no person shall be deprived of his property save by authority of law.

Three consequences follow. It is no longer a fundamental right, so it cannot be enforced by a petition under article 32, and the remedy is a petition under article 226 or an ordinary suit. The article requires only authority of law and says nothing about compensation, so the adequacy of compensation for a deprivation is a matter for the statute rather than the Constitution, which is why the protection of people displaced by acquisition is statutory and why the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 carries so much weight in Module IV. And article 300A speaks of any person, so a foreigner holds it, unlike the citizen right that article 19(1)(f) had been.

2. Set out article 33 and identify the error most answers make about it. Article 33 provides that Parliament may by law determine to what extent any of the rights conferred by Part III shall, in their application to the members of the Armed Forces, to the members of the forces charged with the maintenance of public order, to persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence, and to persons employed in or in connection with the telecommunication systems set up for such a force, bureau or organisation, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them. Four features: the power extends to abrogation and not merely restriction, so a right may be removed entirely in its application to these categories; the categories were widened by amendment, the intelligence organisations and telecommunication systems having been added later; the purpose clause is a real limit, since the restriction must be directed to the discharge of duties and the maintenance of discipline; and the power belongs to Parliament and, by article 35, to Parliament alone.

The error is to treat article 33 as the constitutional source of the special powers exercised over civilians in disturbed areas. It is not. Article 33 operates on the fundamental rights of members of the forces themselves, permitting Parliament to curtail a soldier's own freedom of expression, association and the like in the interests of discipline. It confers no power whatever to curtail the rights of the civilians those forces encounter. So a defence of the Armed Forces (Special Powers) Act cannot be built on article 33, and a criticism of that Act has to be argued on articles 14, 21 and 22 and on the ordinary tests of reasonableness, which is where the real argument lies.

3. What do articles 34 and 35 provide, and why does article 35 matter on this paper? Article 34 provides that, notwithstanding anything in the foregoing provisions of Part III, Parliament may by law indemnify any person in the service of the Union or of a State, or any other person, in respect of any act done in connection with the maintenance or restoration of order in any area within India where martial law was in force, and may validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such an area. Three points: martial law is nowhere defined in the Constitution and is not the same thing as a proclamation of emergency under article 352, which is a separate mechanism with its own consequences; the indemnity is retrospective and complete, extending to the validation of sentences already passed; and it requires an Act of Parliament, which is the only safeguard the article contains.

Article 35 provides that, notwithstanding anything in the Constitution, Parliament shall have and a State Legislature shall not have power to make laws with respect to the matters that may be provided for by parliamentary law under articles 16(3), 32(3), 33 and 34, and for prescribing punishment for those acts which are declared to be offences under Part III, and that Parliament shall make such laws as soon as may be after the commencement of the Constitution. It matters on this paper because of the second limb. Part III declares offences in two places, article 17 on the enforcement of disabilities arising out of untouchability and article 23(1) on traffic in human beings and forced labour, and article 35 makes the legislation punishing those acts exclusively Parliament's. That is why the Protection of Civil Rights Act 1955, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 and the Bonded Labour System (Abolition) Act 1976 are central enactments rather than a patchwork of State laws, and why a failure of enforcement under them is a failure of a national scheme.

And clause (2) names the writs, so the Court's power does not depend on any statute conferring jurisdiction.

Clause (4) and the Emergency

The right shall not be suspended except as otherwise provided for by this Constitution.

The Constitution does so provide, in article 359, which permits the President by order to suspend the right to move any court for the enforcement of Part III rights during a proclamation of emergency.

During 1975 to 1977 that power was used, and the resulting position was that a detained person could not approach a court even to allege that the detention was wholly without legal authority. The Supreme Court's acceptance of that position is the low point of its record.

The Forty-fourth Amendment answered it by excluding articles 20 and 21 from the article 359 power. The enforcement of those two articles can no longer be suspended, so the situation of 1975 cannot recur in the same form.

That sequence is the single most important thing to know about article 32 on a human rights paper, because it is the case study of a remedy that existed on paper and failed in the event.

What article 32 has become

Three developments, all of which belong to Module II and are named here.

Standing was relaxed. The words appropriate proceedings were read to permit a public spirited person to move the Court on behalf of those unable to do so, which is the doctrinal basis of public interest litigation. [The Relaxation of Locus Standi] takes it.

Procedure was relaxed. A letter has been treated as a petition, which is the epistolary jurisdiction.

And the remedies expanded. Compensation, continuing mandamus and guidelines binding until Parliament legislates all issue under article 32 and article 226, and none of them is named in clause (2).

Clause (2)'s words permit all of this: directions or orders or writs, including writs in the nature of the five named. Including is not exhaustive, and in the nature of frees the Court from the technical requirements of the English writs.

The limits

Three, and stating them keeps an answer honest.

It enforces Part III only. A violation of a statutory right, or of a directive principle, does not found an article 32 petition on its own. This is why so much of Indian human rights litigation is framed as an article 21 claim: article 21 is the door.

Disputed questions of fact are unsuitable. The Court has no machinery for trial, and will frequently relegate a petitioner to a suit or to the High Court.

And the remedy reaches the petitioner. A writ protects those before the Court, and a population cannot be protected by litigation, which is the limitation that runs through Module III.

The international correspondence

Article 8 of the Universal Declaration: everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the constitution or by law.

Article 2(3) of the Civil and Political Covenant requires each State party to ensure an effective remedy, to ensure that the claim is determined by competent judicial, administrative or legislative authorities, and to ensure that the competent authorities enforce such remedies when granted.

Article 2(3)(c) is the limb India satisfies least well, because it is directed at enforcement of the remedy once granted, and that is precisely the gap Module III examines.

Worked example

A question on enforcement, on article 32, or on the remedy for a violated right.

Quote all four clauses, because clause (4) is where the Emergency argument lives.

Give the article 32 against article 226 table, and stress that article 226 is wider in purpose.

Give Ambedkar's reason and the article 13(2) point: the remedy cannot be legislated away.

Give the Emergency sequence: article 359, the 1975 position, the Forty-fourth Amendment.

Give the three developments and the three limits.

Close on article 2(3) of the Covenant, and say that the weakest limb is enforcement of the remedy once granted.

What it does NOT mean

It does not mean the Supreme Court must hear every petition. It must not refuse relief where a fundamental right is established, but it may regulate its own procedure and relegate unsuitable matters.

It does not mean article 32 covers statutory rights. It enforces Part III.

And it does not mean the right can never be suspended. Article 359 exists; what changed in 1978 is that articles 20 and 21 are outside it.

Quick revision

• 32(1) the right to move the Supreme Court by appropriate proceedings for enforcement of Part III is guaranteed. 32(2) power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. 32(3) Parliament may empower other courts. 32(4) not suspended except as otherwise provided for by this Constitution.
• Article 32A, which barred consideration of State law validity, was omitted by the Forty-third Amendment.
• Six differences from article 226, and the one that matters is that article 226 is wider in purpose: Part III rights and for any other purpose.
• Ambedkar: the very heart and soul of the Constitution. A law abridging it would be void under article 13(2).
• Emergency: article 359 permitted suspension; used in 1975 to 1977; the Forty-fourth Amendment put articles 20 and 21 outside it.
• Three developments: standing relaxed on the words appropriate proceedings; epistolary jurisdiction; and remedies beyond the named writs, permitted by including and in the nature of.
• Three limits: Part III only; disputed facts unsuitable; and the remedy reaches the petitioner.
• Correspondence: article 8 of the Declaration; article 2(3) of the Covenant, whose (c) limb, enforcement of the remedy once granted, is the one India satisfies least well.

Test yourself

1. Set out article 32 and explain why the remedy was made a right. Clause (1) guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III. Clause (2) empowers the Supreme Court to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of those rights. Clause (3) permits Parliament by law to empower any other court to exercise, within the local limits of its jurisdiction, all or any of those powers. Clause (4) provides that the right shall not be suspended except as otherwise provided for by the Constitution. Article 32A, which had barred the Supreme Court from considering the constitutional validity of a State law in an article 32 proceeding, was omitted by the Forty-third Amendment.

The remedy was made a right because a right without a remedy is not a right. Ambedkar called article 32 the article without which the Constitution would be a nullity and described it as its very heart and soul, and his argument was that an elaborate declaration of rights with no guaranteed route to a court would be a declaration and nothing more. Making the remedy itself a fundamental right has a precise legal consequence: Parliament cannot abridge it by ordinary legislation, because any law doing so would be void under article 13(2). And because clause (2) names the writs in the Constitution itself, the Court's power to issue them does not depend on any statute conferring jurisdiction.

2. How does article 32 differ from article 226, and which matters more in practice? Article 32 is itself a fundamental right; article 226 is a constitutional power of the High Courts and is not a fundamental right. Article 32 lies only for the enforcement of Part III rights; article 226 lies for the enforcement of Part III rights and for any other purpose, which makes it substantially wider. Article 32 runs to the Supreme Court, article 226 to the High Courts. Relief under article 32 cannot be refused where a fundamental right is established, though the Court may regulate its procedure and relegate unsuitable matters; relief under article 226 is discretionary. Article 32 is subject to suspension under article 359 in the manner the Constitution provides; article 226 is not subject to it in the same way. And article 32 has all-India reach, while article 226 is confined to the High Court's own jurisdiction, extended by article 226(2) where the cause of action arises within it.

Article 226 matters more in practice, and for this paper that is the significant point. Because it lies for any other purpose it can reach a statutory violation, an administrative illegality or an ordinary abuse of power without the petitioner having to construct an article 21 argument first. Most human rights litigation in India therefore begins in a High Court, and the reported decisions restraining deportation, ordering release from prolonged detention, directing the issue of documents and requiring the State to act are overwhelmingly article 226 decisions rather than article 32 ones.

3. What happened to article 32 during the Emergency, and what was done about it? Clause (4) provides that the right shall not be suspended except as otherwise provided for by the Constitution, and the Constitution does so provide in article 359, which permits the President by order to suspend the right to move any court for the enforcement of the Part III rights during a proclamation of emergency. That power was exercised during the Emergency of 1975 to 1977. The consequence was that a person detained could not approach any court even to allege that the detention was wholly without legal authority, and the Supreme Court accepted that position. It is treated as the low point of the Indian judicial record on human rights, and it demonstrated that a remedy which exists on paper can fail entirely in the event that most requires it.

What was done about it was the Forty-fourth Amendment, which excluded articles 20 and 21 from the article 359 power. The enforcement of those two articles can therefore no longer be suspended in any emergency, so a detained person retains the right to approach a court to test the legality of the detention whatever proclamation is in force. That is the single most important thing to know about article 32 on a human rights paper, because the sequence shows both what a constitutional remedy is worth and what it is not worth: it is worth a great deal when the courts are willing to use it, and it required a constitutional amendment rather than a judicial correction to make it secure.

That is the observation that turns a recitation into an argument, and it connects directly to [Why the Social and Economic Rights Went into Part IV].

What it has become

Four claims are made for the Declaration's present status, and they should be distinguished.

It is not a treaty and has not become one. The obligations were put into treaty form in the two Covenants of 1966.

Parts of it are customary international law. The prohibitions on slavery, torture, and prolonged arbitrary detention, and the core of the equality guarantee, are widely accepted as customary and therefore binding on all States regardless of ratification.

It is an authoritative interpretation of the Charter. Articles 1(3), 55 and 56 of the Charter oblige members to promote universal respect for and observance of human rights without defining them, and the Declaration is the accepted statement of what those Charter provisions mean.

And it has enormous interpretive force in domestic law. In India it is used to construe Part III, which is the doctrine [The Rule That a Convention in Harmony Is Read Into the Rights] takes in full, and the Chandrima Das decision is a worked example of it.

What is in the Declaration and not in Part III

Naming these is what separates a good answer from a summary, and [What Part III Does Not Contain] returns to them.

Article 14, the right to seek and to enjoy asylum from persecution.

Article 15, the right to a nationality and against arbitrary deprivation of it.

Article 22 to 26, social security, work, rest and leisure, an adequate standard of living, and education, which India placed in Part IV rather than Part III. Education alone has since moved, by article 21A.

Article 17, property, which India had in article 31 and removed in 1978.

And article 28, the entitlement to a social and international order in which the rights can be fully realised, which has no Indian counterpart at all.

What is in Part III and not in the Declaration

Two entries, and both are Indian.

Article 17, the abolition of untouchability, which no international instrument of 1948 addressed.

Article 30, the positive right of minorities to establish and administer educational institutions, where article 27 of the Covenant is framed only as a right not to be denied.

Worked example

Her Set 1 Q1, in its opening half.

Say what the Declaration formally is: a General Assembly resolution of 10 December 1948, not a treaty, adopted without a dissenting vote, with India voting in favour.

Quote its own words: a common standard of achievement for all peoples and all nations.

Give the structure in the five blocks.

Make the structural point: one instrument, both categories, and India split them between Parts III and IV.

Give the four claims about its present status, distinguishing them carefully.

Name what is in it and not in Part III, and what is in Part III and not in it.

Then turn to the case, which is where her question goes.

What it does NOT mean

It does not mean the Declaration is binding as a treaty. It is not, and saying so is a common error.

It does not mean it is legally inert. Parts are customary law, it interprets the Charter, and Indian courts use it to construe Part III.

And it does not mean the Constitution copied it. The Indian demand for rights predates it by half a century, and Part III contains entries the Declaration does not.

Quick revision

• Adopted 10 December 1948 by the General Assembly, as a resolution, not a treaty. No dissenting vote, with abstentions. India voted in favour and took part in the drafting.
• Its own description: a common standard of achievement for all peoples and all nations.
• Thirty articles: 1 and 2 foundations; 3 to 21 civil and political; 22 to 27 economic, social and cultural; 28 to 30 the social and international order, duties to the community, and no right to destroy the rights.
• One instrument, both categories, no distinction of enforceability. India split them into Part III and Part IV.
• Four claims about its status: not a treaty; parts are customary law; an authoritative interpretation of Charter articles 1(3), 55 and 56; and interpretive force in domestic law.
• In the Declaration, not in Part III: article 14 asylum, article 15 nationality, articles 22 to 26 social and economic rights, article 17 property, article 28 the social and international order.
• In Part III, not in the Declaration: article 17 untouchability, and article 30 as a positive minority right.

Test yourself

1. What is the Declaration, formally, and what has it become? Formally it is a resolution of the United Nations General Assembly, adopted on 10 December 1948. It is not a treaty: nobody ratified it, it entered into force on no date, and it created no directly enforceable obligations at the time of adoption. It was adopted without a dissenting vote, with abstentions, and India voted in favour having taken part in the drafting. Its own preamble describes it as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society shall strive by teaching and education to promote respect for these rights and by progressive measures to secure their universal and effective recognition and observance.

What it has become is best stated as four distinct claims, which should not be run together. First, it has not become a treaty; the obligations were put into treaty form in the two Covenants of 1966. Second, parts of it are now customary international law and therefore bind all States regardless of ratification, in particular the prohibitions on slavery, on torture, and on prolonged arbitrary detention, together with the core of the equality guarantee. Third, it is the accepted authoritative interpretation of articles 1(3), 55 and 56 of the Charter, which oblige members to promote universal respect for human rights without defining them. Fourth, it carries great interpretive force in domestic law, and in India it is regularly used to construe Part III, which is the doctrinal route by which its standards become operative here.

2. What is the most important structural fact about the Declaration for an Indian answer? That it contains both categories of rights in a single instrument with no distinction of enforceability between them, and that India split them. Articles 3 to 21 set out the civil and political rights: life, liberty and security of person; freedom from slavery and from torture; recognition as a person before the law; equality before the law; an effective remedy; freedom from arbitrary arrest; a fair and public hearing; the presumption of innocence; privacy; freedom of movement; asylum; nationality; marriage; property; thought, conscience and religion; opinion and expression; assembly and association; and participation in government. Articles 22 to 27 set out the economic, social and cultural rights: social security, work and equal pay, rest and leisure, an adequate standard of living, education, and participation in cultural life.

The Declaration treats these as one body of entitlement. The Indian Constitution took the first group into Part III, where they are justiciable and enforceable by writ under article 32, and the second group into Part IV, where article 37 declares them not enforceable by any court. So the consonance MU's question asserts is real in content and incomplete in status, and pointing that out turns a recitation of corresponding articles into an argument. It also connects directly to the reasons the Constituent Assembly gave for the division, and to the fact that Indian courts have since undone much of it by reading Part IV content into article 21.

3. Name what is in the Declaration and not in Part III, and the reverse. In the Declaration and not in Part III: article 14, the right to seek and to enjoy in other countries asylum from persecution, which has no Indian constitutional counterpart and is why refugee protection in India rests on article 21 arguments; article 15, the right to a nationality and against arbitrary deprivation of it or denial of the right to change it; articles 22 to 26, covering social security, the right to work with just and favourable conditions and equal pay, rest and leisure, an adequate standard of living, and education, all of which India placed in Part IV rather than Part III, with education alone since moving across by article 21A; article 17, property, which India had in article 31 and removed from Part III in 1978; and article 28, the entitlement to a social and international order in which the rights can be fully realised, which has no Indian counterpart at all.

In Part III and not in the Declaration: article 17, the abolition of untouchability and the making of its enforcement an offence, which no international instrument of 1948 addressed and which comes from Indian social reform politics; and article 30, the positive right of all minorities, whether based on religion or language, to establish and administer educational institutions of their choice, where the nearest international provision, article 27 of the Civil and Political Covenant, is framed negatively as a right not to be denied the enjoyment of one's culture, religion or language. Naming both lists is what distinguishes an answer that has compared the two documents from one that has summarised them.

1. The Declaration makes no distinction of enforceability; India does

Articles 3 to 21 and articles 22 to 27 sit in one instrument on the same footing.

India put the first group in Part III, enforceable by writ under article 32, and the second in Part IV, where article 37 says they are not enforceable by any court.

That is the largest divergence, and it is structural rather than textual.

2. Three Declaration rights have no Indian counterpart at all

Article 14, asylum. There is no constitutional right of asylum in India and no refugee statute, so protection rests on article 21 arguments.

Article 15, nationality. Part II deals with citizenship as a matter of status and confers no right to a nationality or against arbitrary deprivation.

Article 28, a social and international order in which the rights can be realised. Nothing in the Constitution corresponds.

3. The Declaration is universal where Part III is sometimes not

Articles 13, 19 and 20 of the Declaration, on movement, expression and assembly, belong to everyone.

Their Indian counterparts in article 19 belong to citizens only.

This is the sharpest textual divergence, and it is why a foreigner in India has article 21 in its enlarged form and no freedom of expression at all. [Rights of Persons and Rights of Citizens] takes it.

4. Part III contains two things the Declaration does not

Article 17, the abolition of untouchability and the creation of an offence.

Article 30, the positive right of minorities to establish and administer educational institutions, where the international provision is framed negatively.

Both are Indian in origin, and naming them prevents the answer from reading as though India merely copied.

What Indian courts have done with the gaps

Where the Declaration has a right and Part III does not, the courts have frequently supplied it by construing article 21.

Article 5, freedom from torture and cruel, inhuman or degrading treatment: read into article 21.

Article 10 and 11(1), fair hearing and presumption of innocence: read into article 21 and article 14.

Article 12, privacy: read into articles 19 and 21.

Articles 25 and 26, standard of living, health, food and education: read into article 21 as livelihood, shelter, health, food and, before article 21A, education.

The mechanism is the reading-in doctrine, which [The Rule That a Convention in Harmony Is Read Into the Rights] takes, and the point for this table is that the correspondence is closer today than the 1950 text would suggest, because the courts closed most of the gaps.

Worked example

Her Set 1 Q1 asks the candidate to discuss the model code proposition.

Do not reproduce the whole table. An examiner does not need thirty rows.

Give six or seven of the clearest correspondences, choosing articles 3, 4, 7, 8, 11(2), 18 and 19.

Then give the four breakdowns as the argument, because that is where the analysis is.

Then say that the courts closed most of the gaps by construing article 21, and name three: torture, privacy and food.

Close on the two Indian entries that the Declaration does not contain.

What it does NOT mean

It does not mean Part III was drafted from the Declaration. The drafting ran in parallel, and the Indian demand for these rights predates 1948 by half a century.

It does not mean every gap has been closed. Asylum, nationality and article 28 remain uncovered.

And it does not mean the correspondence is exact anywhere. The Indian articles carry their own limitation clauses, which the Declaration's articles largely do not.

Quick revision

• Clearest correspondences: 3 to 21; 4 to 23; 7 to 14; 8 to 32 and 226; 11(2) to 20(1); 18 to 25 to 28; 19 and 20 to 19(1)(a), (b), (c).
• Economic block: 22 to 41; 23 to 39(d), 41, 42, 43; 24 to 43; 25 to 39, 42, 47; 26 to 21A, 45, 46; 27 to 29(1).
• Four breakdowns: (1) no distinction of enforceability in the Declaration, Parts III and IV in India; (2) no Indian counterpart to article 14 asylum, article 15 nationality, article 28 the social and international order; (3) the Declaration is universal where article 19 is citizens only; (4) Part III has article 17 and article 30, which the Declaration does not.
• Gaps closed by construing article 21: article 5 torture, article 10 and 11(1) fair hearing and presumption of innocence, article 12 privacy, articles 25 and 26 standard of living and education.

Test yourself

1. Give the clearest correspondences between the Declaration and Part III. Article 1 of the Declaration, that all human beings are born free and equal in dignity and rights, is reflected in the Preamble and in article 14. Article 2, entitlement without distinction of any kind, corresponds to articles 14, 15 and 16. Article 3, the right to life, liberty and security of person, corresponds to article 21. Article 4, the prohibition of slavery and servitude, corresponds to article 23 on traffic in human beings and forced labour. Article 7, equality before the law and equal protection of the law, is article 14 almost word for word, since article 14 contains both limbs in a single sentence. Article 8, the right to an effective remedy by the competent national tribunals, corresponds to articles 32 and 226. Article 11(2), the prohibition on retrospective offences and heavier penalties, corresponds precisely to article 20(1). Article 18, freedom of thought, conscience and religion, corresponds to articles 25 to 28. Articles 19 and 20, freedom of opinion and expression and of peaceful assembly and association, correspond to article 19(1)(a), (b) and (c).

On the economic side, article 22 on social security corresponds to article 41; article 23 on work, just conditions and equal pay to articles 41, 42 and 43 with equal pay in article 39(d); article 24 on rest and leisure to article 43; article 25 on an adequate standard of living to articles 39, 42 and 47; article 26 on education to article 21A and articles 45 and 46; and article 27 on cultural life in part to article 29(1).

2. Where does the correspondence break down? In four places. First and largest, the Declaration draws no distinction of enforceability between its civil and political articles and its economic and social ones, treating both as a single body of entitlement, whereas India put the first group in Part III where they are enforceable by writ and the second in Part IV where article 37 declares them not enforceable by any court. That divergence is structural rather than textual and it shapes the whole of Indian human rights practice.

Second, three Declaration rights have no Indian counterpart at all: article 14, the right to seek and enjoy asylum from persecution, which is why refugee protection in India rests on article 21 arguments rather than on any entitlement; article 15, the right to a nationality and against arbitrary deprivation of it, Part II of the Constitution dealing with citizenship as a matter of status rather than conferring a right; and article 28, the entitlement to a social and international order in which the rights can be fully realised. Third, the Declaration is universal where Part III is sometimes not: its articles 13, 19 and 20 on movement, expression and assembly belong to everyone, while their Indian counterparts in article 19 belong to citizens only, which is the sharpest textual divergence and the reason a foreigner in India holds an enlarged article 21 and no freedom of expression. Fourth, Part III contains two things the Declaration does not, article 17 on untouchability and article 30 as a positive minority right, both Indian in origin.

3. How far have Indian courts closed the gaps, and by what route? Substantially, and by construing article 21. Article 5 of the Declaration, freedom from torture and from cruel, inhuman or degrading treatment or punishment, has no express Indian counterpart and has been read into article 21. Article 10, the right to a fair and public hearing by an independent and impartial tribunal, and article 11(1), the presumption of innocence, have likewise been read into article 21 and article 14 as elements of a procedure that must be fair, just and reasonable. Article 12, protection against arbitrary interference with privacy, family, home and correspondence, was located across Part III and principally in articles 19 and 21. And articles 25 and 26, on an adequate standard of living and on education, entered article 21 as the rights to livelihood, shelter, health and food, with education later confirmed by the insertion of article 21A.

The route is the reading-in doctrine: a convention or instrument that is not inconsistent with the fundamental rights and is in harmony with their spirit is read into them to enlarge their meaning and content. The consequence for an answer on the model code proposition is that the correspondence between the Declaration and Indian law is considerably closer today than the 1950 text would suggest, because the courts closed most of the gaps by construction rather than Parliament closing them by amendment. What remains uncovered is asylum, nationality and the article 28 entitlement, and those three are uncovered precisely because there is no fundamental right for the doctrine to attach them to.

Where each one went in India

The pattern is that only two of these six are enforceable in India as of right: trade unions, because article 19(1)(c) put them in Part III, and elementary education, because article 21A moved it there in 2002.

Everything else in the block is either a directive principle or has been read into article 21 by the courts, which is why Module II matters so much on this paper.

Articles 28 to 30, the closing articles

Article 28. Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

This article has no Indian counterpart at all, and it is worth naming for that reason. It is also the article that connects the Declaration to the later argument about a new international economic order and about development as a right.

Article 29. (1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. (3) These rights may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 29(1) is the Declaration's own answer to the charge that human rights are individualistic, and its Indian counterpart is article 51A, the Fundamental Duties, inserted in 1976.

Article 29(2) is the Declaration's general limitation clause, and comparing it with the Indian scheme is instructive. The Declaration has one limitation clause for all its rights; the Indian Constitution writes a separate limitation into each article, with eight grounds for speech in article 19(2) and three for religion in article 25(1).

Article 30. Nothing in the Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

This is the abuse of rights clause, and its Indian analogue is the reasonable restriction scheme together with the grounds of sovereignty and integrity, security of the State and public order in article 19(2).

Why this block matters on this paper

Three reasons.

It is the half of the Declaration India made unenforceable, so it is the direct evidence for the argument in [Why the Social and Economic Rights Went into Part IV].

It is what the courts read into article 21, so it is the source material for [The Rights Read into Article 21].

And article 26 supplies the standard against which article 21A is measured, which [Article 21A: Education as a Fundamental Right] uses: India meets the elementary limb and does nothing enforceable about the rest.

Worked example

A question on economic and social rights, or on the Declaration as a whole.

Give articles 22 to 27 with their substance, not just their headings.

Quote the qualification in article 22, in accordance with the organisation and resources of each State, because it shows the Declaration anticipated the enforceability problem.

Give the table of where each one went in India, and make the point that only two of the six are enforceable as of right.

Give articles 28 to 30, and name article 28 as having no Indian counterpart.

Compare article 29(2) with the Indian scheme: one general limitation clause against a separate clause in each article.

What it does NOT mean

It does not mean these rights are less important in the Declaration. It draws no distinction of rank between them and the civil ones.

It does not mean India ignores them. Most are directive principles, several have been read into article 21, and a great deal of legislation implements them.

And it does not mean article 29(1) is a limitation on rights. It is a statement that rights are exercised within a community, and its operative limitation clause is 29(2).

Quick revision

• 22 social security, and in accordance with the organisation and resources of each State, the seed of progressive realisation.
• 23 work, free choice, just conditions, protection against unemployment, equal pay for equal work, remuneration ensuring an existence worthy of human dignity, trade unions.
• 24 rest and leisure, reasonable limitation of working hours, holidays with pay.
• 25 adequate standard of living: food, clothing, housing, medical care; security in unemployment, sickness, disability, widowhood, old age; motherhood and childhood entitled to special care; children born in or out of wedlock the same protection.
• 26 education free at least in the elementary and fundamental stages, elementary compulsory, higher on the basis of merit; directed to the full development of the human personality; parents have a prior right to choose.
• 27 cultural life, scientific advancement, and the moral and material interests of an author.
• Only two of the six are enforceable in India as of right: trade unions via article 19(1)(c), and elementary education via article 21A.
• 28 a social and international order in which the rights can be realised: no Indian counterpart. 29(1) duties to the community, answered by article 51A. 29(2) the general limitation clause. 30 the abuse of rights clause.

Test yourself

1. Set out the economic and social block of the Declaration. Article 22 gives everyone, as a member of society, the right to social security and entitlement to realisation, through national effort and international co-operation and in accordance with the organisation and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. Article 23 gives the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment; equal pay for equal work without any discrimination; just and favourable remuneration ensuring an existence worthy of human dignity, supplemented if necessary by other means of social protection; and the right to form and join trade unions. Article 24 gives the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25 gives the right to a standard of living adequate for the health and well-being of oneself and one's family, including food, clothing, housing, medical care and necessary social services, and to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond one's control, adding that motherhood and childhood are entitled to special care and assistance and that all children, whether born in or out of wedlock, shall enjoy the same social protection. Article 26 gives the right to education, free at least in the elementary and fundamental stages, with elementary education compulsory, technical and professional education generally available and higher education equally accessible on the basis of merit, directed to the full development of the human personality and the strengthening of respect for human rights, and with parents having a prior right to choose the kind of education given to their children. Article 27 gives the right to participate in cultural life, to enjoy the arts, to share in scientific advancement and its benefits, and to the protection of the moral and material interests resulting from one's own scientific, literary or artistic production.

2. Where did each of these rights go in India, and how many are enforceable? Social security under article 22 went to article 41, a directive principle. The article 23 cluster was split: the right to work and protection against want went to articles 41, 42 and 43, equal pay for equal work to article 39(d), and the right to form associations or unions to article 19(1)(c) in Part III. Rest and leisure under article 24 went to article 43. The article 25 standard of living went to articles 39(e) and (f), 42 and 47. Education under article 26 went originally to articles 45 and 46 as directives, and since 2002 to article 21A in Part III for the age band six to fourteen. Cultural life under article 27 is reflected in part by article 29(1), and the authorship limb is dealt with by copyright legislation rather than by the Constitution.

Only two of the six are enforceable in India as of right: the right to form trade unions, because article 19(1)(c) placed it in Part III, and elementary education, because article 21A moved it there. Everything else in the block is either a directive principle, unenforceable by article 37, or has been made enforceable indirectly by the courts reading it into article 21, which is how livelihood, shelter, health and food became actionable. That distribution is the direct evidence for any argument about the consequences of the Constituent Assembly's decision to split the Declaration's single list into two Parts.

3. What do the closing articles say, and what is notable about them from an Indian point of view? Article 28 provides that everyone is entitled to a social and international order in which the rights and freedoms set forth in the Declaration can be fully realised. Article 29(1) states that everyone has duties to the community in which alone the free and full development of his personality is possible; 29(2) provides that in the exercise of his rights everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society; and 29(3) provides that the rights may in no case be exercised contrary to the purposes and principles of the United Nations. Article 30 provides that nothing in the Declaration may be interpreted as implying any right to engage in activity aimed at the destruction of any of the rights it sets forth.

Three things are notable from an Indian point of view. Article 28 has no Indian counterpart at all, and it is the article that connects the Declaration to the later arguments about a new international economic order and about development as a right. Article 29(1), on duties to the community, is the Declaration's own answer to the charge that human rights are individualistic, and its Indian analogue is article 51A, the Fundamental Duties, which were not in the Constitution as adopted and were inserted in 1976. And article 29(2) is a single general limitation clause governing every right in the instrument, where the Indian Constitution instead writes a separate limitation into each article, with eight grounds for speech in article 19(2), two for assembly in 19(3), and public order, morality and health for religion in article 25(1). That difference in drafting technique is worth naming, because it explains why Indian rights litigation argues about which ground is engaged while international argument tends to be about necessity and proportionality.

Article 42. Provision for just and humane conditions of work and for maternity relief.

Article 43. The State shall endeavour to secure to all workers work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities, and to promote cottage industries.

Article 43A, inserted in 1976: participation of workers in the management of undertakings.

Article 43B, inserted in 2011: promotion of voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies.

Gandhian directives

Article 40. Organisation of village panchayats endowed with the powers and authority necessary to function as units of self-government.

Article 46. Promotion with special care of the educational and economic interests of the weaker sections, in particular the Scheduled Castes and Scheduled Tribes, and protection from social injustice and all forms of exploitation.

Article 47, in part: prohibition of the consumption of intoxicating drinks and of drugs injurious to health, except for medicinal purposes.

Article 48, in part: organisation of agriculture and animal husbandry on modern lines, and prohibition of the slaughter of cows, calves and other milch and draught cattle.

Liberal and intellectual directives

Article 39A, inserted in 1976: the State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall in particular provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Article 44. The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

Article 45, as substituted by the Eighty-sixth Amendment: early childhood care and education for all children until they complete the age of six years.

Article 47. Raising the level of nutrition and the standard of living and improving public health as among the primary duties of the State.

Article 48A, inserted in 1976: protection and improvement of the environment and safeguarding of forests and wild life.

Article 49. Protection of monuments and places and objects of national importance.

Article 50. Separation of the judiciary from the executive in the public services of the State.

Article 51. Promotion of international peace and security, maintenance of just and honourable relations between nations, fostering of respect for international law and treaty obligations, and encouragement of settlement of international disputes by arbitration.

The four that carry this paper

A candidate cannot use sixteen articles in an answer, so four should be at command.

Article 39A, free legal aid, because it was enforced through article 21 and is the clearest instance of a directive acquiring teeth.

Article 47, nutrition, standard of living and public health, because the right to food and the right to health were built on it.

Article 48A, the environment, because [The Supreme Court and Environmental Jurisprudence] rests on it read with article 21 and article 51A(g).

Article 51(c), fostering respect for international law and treaty obligations, because the whole of Module IV runs through it.

The additions, which show Part IV is not frozen

Article 39(f) was substituted and article 43A, article 39A and article 48A were inserted by the Forty-second Amendment in 1976.

Article 38(2) was inserted by the Forty-fourth Amendment in 1978.

Article 45 was substituted and article 51A(k) inserted by the Eighty-sixth Amendment in 2002.

Article 43B was inserted by the Ninety-seventh Amendment in 2011.

So Parliament has added to Part IV five times, which is evidence against the view that it is a dead letter.

Worked example

Her Set 1 Q7(a) and Set 2 Q7(a) both need this chapter.

Give article 36 and article 37 first, all three clauses of 37.

Give the grouping, socialist, Gandhian, liberal, and say that the classification is conventional rather than constitutional.

Do not list all sixteen. Give four or five with their actual words, choosing 38, 39, 39A, 47 and 51.

Name articles 39(b) and (c) as the two protected by article 31C.

Give the amendment history to show Part IV is not frozen.

Then move to what the directives have achieved, which [The Contribution of the Directive Principles to Human Rights] takes.

What it does NOT mean

It does not mean the classification into socialist, Gandhian and liberal is in the Constitution. It is a textbook grouping and should be presented as one.

It does not mean the directives bind only the executive. Article 36 gives the State the same meaning as in Part III, so legislatures are included, and the duty in article 37 is a duty in making laws.

And it does not mean Part IV is static. It has been added to five times.

Quick revision

• Article 36: the State has the same meaning as in Part III. Article 37: not enforceable by any court; fundamental in the governance of the country; duty of the State to apply these principles in making laws.
• 38(1) a social order in which justice, social, economic and political, shall inform all the institutions of the national life; 38(2) minimise inequalities in income, eliminate them in status, facilities and opportunities.
• 39(a) adequate means of livelihood; (b) material resources to subserve the common good; (c) no concentration of wealth; (d) equal pay for equal work for both men and women; (e) health and strength of workers and the tender age of children not abused; (f) children to develop in freedom and dignity, protected against moral and material abandonment.
• 39(b) and (c) are the two protected by article 31C.
• 39A free legal aid; 40 village panchayats; 41 work, education and public assistance within the limits of its economic capacity; 42 maternity relief; 43 living wage; 44 uniform civil code; 45 early childhood care until six; 46 weaker sections; 47 nutrition and public health; 48A environment; 50 separation of the judiciary from the executive; 51(c) fostering respect for international law and treaty obligations.
• Five additions: Forty-second (39A, 43A, 48A, and 39(f) substituted); Forty-fourth (38(2)); Eighty-sixth (45 substituted); Ninety-seventh (43B).

Test yourself

1. What do articles 36 and 37 establish, and why does article 36 matter? Article 36 provides that in Part IV, unless the context otherwise requires, the State has the same meaning as in Part III. Article 37 provides that the provisions of Part IV shall not be enforceable by any court, but that the principles laid down there are nevertheless fundamental in the governance of the country, and that it shall be the duty of the State to apply these principles in making laws.

Article 36 matters because it settles who the directives are addressed to, and the answer is the same body of authorities that the fundamental rights run against: the Government and Parliament of India, the Government and Legislature of each State, all local authorities, and other authorities within the territory of India or under the control of the Government of India. Two consequences follow. The duty in article 37 is not confined to the executive but binds legislatures, which is why it is expressed as a duty in making laws rather than a duty in administering them. And because the addressee is identical to that of Part III, the two Parts are directed at the same actor, which is part of why the courts were eventually able to treat them as complementary rather than as occupying separate spheres.

2. Give the content of article 39 and say why two of its clauses matter beyond their own terms. Article 39 directs the State to secure that citizens, men and women equally, have the right to an adequate means of livelihood; that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; that there is equal pay for equal work for both men and women; that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; and that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, with childhood and youth protected against exploitation and against moral and material abandonment.

Clauses (b) and (c) matter beyond their own terms because they are the two directives protected by article 31C, which saves a law giving effect to them from challenge under articles 14 and 19. That gives them an operative constitutional effect that no other directive has: legislation redistributing material resources or preventing concentration of wealth is shielded from the ordinary equality and freedom challenges. The wider version of article 31C, which would have extended the protection to laws giving effect to any directive principle and would have excluded judicial review of whether a law did so, was struck down, so the shield remains confined to those two clauses.

3. Which four directives carry this paper, and why? Article 39A, on equal justice and free legal aid, because it is the clearest case of a directive acquiring teeth: the State's obligation to provide free legal aid by suitable legislation or schemes so that opportunities for securing justice are not denied by reason of economic or other disabilities was enforced through article 21 as an element of a fair procedure, and legal aid is now an enforceable component of a criminal trial rather than a policy aspiration. Article 47, on raising the level of nutrition and the standard of living and improving public health as among the primary duties of the State, because the rights to food and to health were built on it read with article 21.

Article 48A, on the protection and improvement of the environment and the safeguarding of forests and wild life, because the whole of Indian environmental jurisprudence rests on it read with article 21 and with the fundamental duty in article 51A(g), and MU asks about environmental jurisprudence in terms. And article 51(c), on fostering respect for international law and treaty obligations, because the whole of Module IV runs through it: it is the constitutional warrant for reading a ratified convention into the fundamental rights, and without it the argument that international standards bind Indian courts would have to rest on custom alone.

The doctrinal move is always the same. Article 21 protects life; life means more than animal existence and includes the right to live with human dignity; a person cannot live with dignity without the thing the directive names; therefore the thing the directive names is within article 21 and enforceable by writ.

Its limit should be stated too. The court declares the right; it does not build the hospital. [The Limits: What a Court Cannot Do However Activist] takes that.

The honest assessment

Three things in favour.

Part IV supplied the agenda. Indian welfare legislation is recognisably an attempt to carry out articles 38 to 47, and the correspondence between directive and statute is close.

It supplied the vocabulary. Living wage, equal pay for equal work, free legal aid, public assistance, nutrition and public health are the Constitution's own words, and they set the terms of Indian political argument.

And it supplied the doctrinal bridge. Without Part IV there would have been nothing to read into article 21, and the second generation rights would have had no constitutional home at all.

Three things against.

It is unenforceable on its own, so a person denied a living wage has no remedy under article 43.

Progress has been uneven. Article 44's uniform civil code, article 47's prohibition and article 40's panchayats have had very different fates, and none of the differences is legal.

And the article 21 route is available only to those who can reach a court, which reproduces the access problem that runs through the whole of this paper.

The international frame

Part IV is, almost article for article, the Economic and Social Covenant written a decade and a half early.

Article 41 answers Covenant articles 6, 9 and 13; article 42 answers article 7 and article 10; article 43 answers article 7; article 47 answers articles 11 and 12; article 45 and 46 answer article 13.

And the obligation is described the same way. Article 41's words are within the limits of its economic capacity and development; article 2(1) of the Covenant speaks of achieving progressively the full realisation of the rights to the maximum of its available resources.

So the criticism that Part IV is unenforceable is a criticism that applies to the Covenant as well, and an answer that makes it should say so.

Worked example

Her Set 1 Q7(a), the contribution of the Directive Principles to the promotion of human rights.

Open with article 37, all three clauses, because the question is about a Part that is not enforceable.

Give the four channels as the structure of the answer.

Give the directive against statute table for channel one, four or five rows.

Give the article 21 table for channel four, four or five rows, and give the doctrinal move in one sentence.

Give the honest assessment, three for and three against.

Close on the Covenant parallel, including the matching language about resources.

What it does NOT mean

It does not mean the directives are enforceable. They are not, and everything above works through some other provision.

It does not mean every welfare statute traces to a directive. Many do; the claim should be that Part IV supplied the agenda, not that it is the sole source.

And it does not mean the article 21 route makes Part IV redundant. Only some directives have been read in, and the route needs a court.

Quick revision

• Four channels: mandate for legislation under article 37; construction of statutes and rights; defence under articles 31A, 31B, 31C; and content read into article 21.
• Directive to statute: 39(d) equal remuneration; 39(e) and (f) child labour, Juvenile Justice, POCSO; 39A legal services authorities; 42 maternity benefit; 46 Protection of Civil Rights and atrocities Acts; 47 food security; 48A environmental statutes.
• Read into article 21: livelihood from 39(a) and 41; shelter; health from 39(e), 41, 47; food from 39(a) and 47; legal aid from 39A; education from 41, 45, 46; clean environment from 48A with 51A(g).
• The doctrinal move: life is more than animal existence, includes the right to live with human dignity, dignity requires the thing the directive names, therefore it is within article 21.
• Three for: the agenda, the vocabulary, the doctrinal bridge. Three against: unenforceable alone, uneven progress, and access to a court.
• Covenant parallel: 41 to articles 6, 9, 13; 42 to 7 and 10; 43 to 7; 47 to 11 and 12. Within the limits of its economic capacity and development against to the maximum of its available resources.

Test yourself

1. Through what channels have the Directive Principles contributed to human rights in India? Four. First, as the mandate for legislation: article 37 makes it the duty of the State to apply the principles in making laws, and a great deal of Indian social legislation is enacted under that duty, with a close correspondence between directive and statute. Article 39(d) on equal pay produced the equal remuneration legislation; article 39(e) and (f) on children produced the child labour legislation, the Juvenile Justice Act 2015 and POCSO 2012; article 39A produced the legal services authorities legislation; article 42 produced maternity benefit legislation; article 46 produced the Protection of Civil Rights Act 1955 and the atrocities Act 1989; article 47 produced food security and public health legislation; and article 48A produced the environmental statutes.

Second, as an aid to construction: where a statute admits of two readings the one advancing a directive is preferred, and a directive colours the reasonableness inquiry under article 19 because a restriction serving an object the Constitution commends is more readily upheld. Third, as a defence: article 31C saves a law giving effect to article 39(b) or (c) from challenge under articles 14 and 19, article 31A saves estate acquisition laws, and article 31B with the Ninth Schedule validates specified enactments subject to the basic structure limit. Fourth, and largest, as the content read into article 21, which is what made the second generation rights enforceable in India.

2. Explain the doctrinal move by which a directive becomes enforceable, and give examples. The move is always the same and takes four steps. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Life has been held not to be confined to mere animal existence but to include the right to live with human dignity and all that goes with it, namely the bare necessaries of life. A person cannot live with dignity without the thing the directive names, whether that is a livelihood, shelter, medical care, food or legal representation. Therefore the thing the directive names is within article 21, and being within article 21 it is enforceable by writ under article 32 or article 226.

The examples are the whole of the second generation in Indian law. Livelihood came from articles 39(a) and 41; shelter from 39(a), 41 and 47; health and emergency medical aid from 39(e), 41 and 47; food from 39(a) and 47; free legal aid from 39A; education from 41, 45 and 46, before article 21A confirmed it by amendment; a clean environment from 48A read with the fundamental duty in article 51A(g); and just and humane conditions of work from 42 and 43. The limit of the technique should be stated in the same breath: the court declares the right and cannot build the hospital, so the declaration transfers the problem to administrations and budgets that no writ can enlarge.

3. Assess the contribution honestly, and place it against the international standard. Three points in favour. Part IV supplied the agenda: Indian welfare legislation is recognisably an attempt to carry out articles 38 to 47, and the correspondence is close enough that the statutes can be listed against the directives. It supplied the vocabulary: living wage, equal pay for equal work, free legal aid, public assistance, nutrition and public health are the Constitution's own words and they set the terms of Indian political argument. And it supplied the doctrinal bridge, because without Part IV there would have been nothing for the courts to read into article 21 and the economic and social claims would have had no constitutional home.

Three against. It is unenforceable on its own, so a person denied a living wage has no remedy under article 43 and must construct an article 21 case instead. Progress has been very uneven across the Part, with article 44's uniform civil code, article 47's prohibition and article 40's panchayats having entirely different fates for reasons that are political rather than legal. And the article 21 route is available only to those who can reach a court, which reproduces the access problem running through this whole paper.

Placed against the international standard, Part IV is very nearly the Economic and Social Covenant written fifteen years early: article 41 answers Covenant articles 6, 9 and 13, article 42 answers articles 7 and 10, article 43 answers article 7, and article 47 answers articles 11 and 12. Even the obligation is described in the same way, article 41 speaking of what the State may do within the limits of its economic capacity and development and article 2(1) of the Covenant of achieving progressively the full realisation of the rights to the maximum of its available resources. So the standard criticism that Part IV is unenforceable is one that applies with equal force to the Covenant itself, and an answer that makes the criticism should acknowledge as much.

Note what the pair does not do. Neither article is enforceable on its own, and the environment appears nowhere in Part III. Everything enforceable in Indian environmental law comes through article 21.

Article 38(2) and article 43B

Article 38(2) requires the State to minimise the inequalities in income and to endeavour to eliminate inequalities in status, facilities and opportunities, not only among individuals but among groups of people residing in different areas or engaged in different vocations.

Its significance is the group dimension. It is the only directive that addresses regional and occupational inequality in terms, and it is a useful citation in an answer about development and displacement, where the burden falls on particular regions and particular occupations.

Article 43B requires the State to endeavour to promote the voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies, and it arrived with the addition of co-operative societies to article 19(1)(c) by the same amendment. That pairing of a Part III right with a Part IV directive in one amendment is the pattern the Eighty-sixth Amendment also used.

Why the additions matter for the argument

Three points, and the third is the strongest.

They show Part IV is not frozen. Parliament has returned to it four times, which is evidence against the view that it is a dead letter of 1950.

They show the two Parts are amended together. The Forty-second, Eighty-sixth and Ninety-seventh Amendments each touched a Part III right, a Part IV directive and, in two cases, a Part IVA duty at the same time. The drafter treats them as one scheme.

And they show what Parliament does when a directive succeeds. Education was read into article 21 and Parliament then wrote article 21A. That is the pattern to point at in any argument about the proper roles of court and legislature, because it is Parliament confirming a judicial development rather than resisting it.

Worked example

A question on the Directive Principles, on environmental jurisprudence, or on the relationship between Parts III and IV.

Give the four insertions in a table, with their amendments and years.

Give article 39A in full, with its three features, and say it is the clearest case of a directive becoming enforceable.

Give article 48A with article 51A(g), and say that everything enforceable in Indian environmental law comes through article 21 because the environment is nowhere in Part III.

Give article 38(2)'s group dimension, which is useful on the displacement questions.

Close on the three points: Part IV is not frozen, the Parts are amended together, and Parliament confirmed the judicial development of education by amendment.

What it does NOT mean

It does not mean the inserted directives are enforceable. They sit in Part IV and article 37 applies to them.

It does not mean the Forty-second Amendment was benign. It was the Emergency amendment and much of it was undone in 1978; these particular insertions survived and are used constantly.

And it does not mean the environment has a constitutional home in Part III. It does not, and that absence is why article 21 carries the whole of it.

Quick revision

• Forty-second Amendment, 1976: substituted 39(f), inserted 39A free legal aid, 43A worker participation, 48A environment, and the whole of Part IVA, article 51A.
• Forty-fourth Amendment, 1978: inserted 38(2), on inequalities in income, status, facilities and opportunities, among groups as well as individuals.
• Eighty-sixth Amendment, 2002: substituted article 45, now early childhood care and education until six, and inserted article 51A(k).
• Ninety-seventh Amendment, 2011: inserted 43B on co-operative societies, and added them to article 19(1)(c).
• Article 39A: by suitable legislation or schemes or in any other way; economic or other disabilities; citizens on its face. Enforced through article 21 as an element of a fair procedure.
• Article 48A with article 51A(g): the foundation of Indian environmental law. The environment appears nowhere in Part III, so everything enforceable comes through article 21.
• Three points: Part IV is not frozen; the Parts are amended together; and Parliament confirmed the judicial development of education by enacting article 21A.

Test yourself

1. What has been added to Part IV since 1950? Four times. The Forty-second Amendment of 1976 substituted article 39(f), on children being given opportunities to develop in conditions of freedom and dignity and being protected against exploitation and against moral and material abandonment, and inserted article 39A on equal justice and free legal aid, article 43A on the participation of workers in the management of industries, and article 48A on the protection and improvement of the environment and the safeguarding of forests and wild life. The same amendment inserted the whole of Part IVA, article 51A, the Fundamental Duties.

The Forty-fourth Amendment of 1978 inserted article 38(2), requiring the State to strive to minimise the inequalities in income and to endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. The Eighty-sixth Amendment of 2002 substituted article 45, which now requires the State to endeavour to provide early childhood care and education for all children until they complete the age of six years, and inserted article 51A(k) on the parental duty to provide educational opportunities. The Ninety-seventh Amendment of 2011 inserted article 43B on co-operative societies, and by the same amendment added co-operative societies to article 19(1)(c).

2. Why is article 39A the best example of a directive acquiring teeth? Because it was enforced, and by a route that can be stated precisely. The article requires the State to secure that the operation of the legal system promotes justice on a basis of equal opportunity, and in particular to provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Three features make it unusually strong for a directive: the obligation is expressed so broadly that the State cannot answer that it has passed no law, since schemes or any other way will do; the disability is economic or other, which reaches illiteracy, distance, disability and ignorance and not only poverty; and the object is the operation of the legal system itself, which is a matter squarely within judicial competence in a way that a living wage is not.

What followed was that free legal aid became an element of the fair procedure article 21 requires. An accused person who is unrepresented for want of means is therefore not merely the beneficiary of an unfulfilled directive but the holder of a constitutional grievance enforceable by writ, and the legal services authorities legislation gives the machinery. That is the complete journey from Part IV to enforceability, and it is shorter and cleaner than the education journey because it needed no amendment.

3. What is the constitutional foundation of Indian environmental law, and what does its shape tell you? Article 48A, inserted in 1976, requires the State to endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Article 51A(g), inserted by the same amendment, makes it the duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. Neither is enforceable on its own, article 48A being a directive to which article 37 applies and article 51A being a fundamental duty carrying no remedy. The enforceable right to a clean environment therefore exists only because the courts read those two provisions together with article 21 and held that life includes a life of dignity, which cannot be lived in a degraded environment.

The shape tells you two things. First, that the environment appears nowhere in Part III at all, so every enforceable environmental right in India is a construction of article 21 rather than a text, which is why the doctrine is judge-made in a way that most of Part III is not. Second, that the pairing of a State directive with a citizen duty is a deliberate legislative technique: the Ninety-seventh Amendment used the same method by pairing article 43B with an addition to article 19(1)(c), and the Eighty-sixth paired article 21A with article 45 and article 51A(k). The drafter treats Parts III, IV and IVA as one scheme, which is itself an argument against reading article 37 as making Part IV inert.

Phase four: complementarity, and the balance as a basic feature

The settled position has three propositions.

The two Parts are complementary and supplementary to each other, together constituting the conscience of the Constitution. Fundamental rights are the means; directive principles are the ends.

Neither has absolute primacy. A law cannot be immunised from Part III merely because it serves Part IV, and a directive cannot be dismissed merely because it is unenforceable.

And the balance between them is part of the basic structure, so an amendment that destroys it is invalid.

What the doctrine produced in practice

Three concrete results, and they are the evidence an answer needs.

Part IV content entered Part III. Livelihood, shelter, health, food, legal aid and a clean environment are enforceable under article 21 because the directives supplied their content. [The Contribution of the Directive Principles to Human Rights] has the table.

Parliament confirmed the movement by amendment. Education travelled from article 45 to article 21A. [Article 21A: Education as a Fundamental Right] is the complete journey.

And Part IV legislation is defended rather than struck down. Articles 31A, 31B and 31C exist, and beyond them a restriction serving a directive is more readily upheld as reasonable.

The honest qualification

The complementarity doctrine is a judicial construction, not a text.

Article 37 still says the directives are not enforceable by any court, and nothing has changed those words. What changed is what courts do with unenforceable provisions.

And the movement has been one way. Directive content has entered article 21; no fundamental right has been demoted to Part IV. An answer that presents the relationship as a genuine balance should note that the traffic runs in one direction.

The international parallel

The two Covenants of 1966 made the same split India had made in 1950, one instrument for civil and political rights with an immediate obligation, another for economic, social and cultural rights with progressive realisation.

And the international position has moved the same way. The Vienna Declaration of 1993 affirmed that all human rights are universal, indivisible and interdependent and interrelated, which is the international statement of exactly the complementarity doctrine Indian courts reached.

That parallel is worth drawing, because it shows the Indian development is not an eccentricity but the same correction the international system made.

Worked example

Her Set 2 Q7(a), the interrelationship between fundamental rights and directive principles.

Say why there is a problem: same State, both constitutional, capable of conflict.

Give the four phases in order, with what each held.

Give article 31C and what happened to its widened version, because that is the sharpest moment in the story.

Give the three settled propositions.

Give the three practical results.

Then give the honest qualification: article 37 is unchanged, and the traffic runs one way.

Close on the Vienna Declaration parallel.

What it does NOT mean

It does not mean the directives are now enforceable. Article 37 stands.

It does not mean article 31C is gone. The narrow version, confined to article 39(b) and (c), survives.

And it does not mean Part IV can override a fundamental right. The attempt to make it do so was struck down.

Quick revision

• The problem: article 36 gives the State the same meaning in both Parts, both are constitutional commitments, and they conflict.
• Phase one: Part III prevails; directives subsidiary; land reform struck down; articles 31A, 31B and the Ninth Schedule were the answer.
• Phase two: harmonious construction; a directive resolves ambiguity, makes a restriction more readily reasonable, and supplies a legitimate object under article 14.
• Phase three: article 31C widened by the Forty-second Amendment to cover any directive and to bar the court from asking whether the law gave effect to it. The widened version was struck down; the narrow one, article 39(b) and (c), survives.
• Phase four: complementary and supplementary; neither has absolute primacy; and the balance is part of the basic structure.
• Three results: directive content entered article 21; Parliament confirmed it with article 21A; and Part IV legislation is defended.
• Honest qualification: article 37 is unchanged, and the traffic runs one way.
• Parallel: the two Covenants of 1966 made the same split; the Vienna Declaration 1993 called all rights universal, indivisible and interdependent and interrelated.

Test yourself

1. Why can Parts III and IV conflict, and how did the courts first resolve it? They conflict because article 36 gives the word State the same meaning in Part IV as in Part III, so both Parts are addressed to the same authorities; because both express constitutional commitments, one enforceable and one declared fundamental in the governance of the country; and because their contents genuinely pull against one another. A law redistributing property advances article 39(b) and restricts article 19 or article 14. A law reserving posts advances article 46 and engages article 16. The conflict is not academic: it was most of Indian constitutional litigation for the first three decades.

The first resolution was that Part III prevails. The reasoning was straightforward: Part III is enforceable and Part IV is not, article 37 says so in terms, and a directive therefore cannot displace a right. The directives were treated as subsidiary, to be conformed to and to run as subsidiary to the fundamental rights. The consequence was that land reform and other redistributive legislation was repeatedly struck down, which is why Parliament responded with article 31A saving estate acquisition laws, article 31B validating the enactments in the Ninth Schedule, and eventually article 31C.

2. What happened to article 31C, and why does it matter? Article 31C was inserted to save a law giving effect to the directives in article 39(b) and (c), on the distribution of material resources to subserve the common good and on preventing the concentration of wealth, from challenge under articles 14 and 19. The Forty-second Amendment then widened it in two ways: it extended the protection to a law giving effect to any directive principle whatever, and it added a provision that no such law should be called in question in any court on the ground that it did not in fact give effect to the directive.

The widened version was struck down. The reasoning was that to give Part IV blanket primacy over Part III would destroy the balance between the two Parts, and that the balance is itself a basic feature of the Constitution which no amendment may damage. The narrower article 31C, confined to article 39(b) and (c), survives. It matters because it is the sharpest moment in the whole relationship: it is the point at which Parliament attempted to reverse the priority by amendment and was told that the priority could not be reversed either way, because the constitutional commitment is to the balance rather than to the supremacy of either Part.

3. State the settled position, and give the honest qualification. The settled position has three propositions. The two Parts are complementary and supplementary to each other and together constitute the conscience of the Constitution, the fundamental rights being the means and the directive principles the ends. Neither has absolute primacy: a law cannot be immunised from Part III merely because it serves Part IV, and a directive cannot be dismissed merely because article 37 makes it unenforceable. And the balance between them is part of the basic structure, so an amendment that destroys it is invalid. In practice this has produced three results: directive content entered Part III through article 21, giving enforceable rights to livelihood, shelter, health, food, legal aid and a clean environment; Parliament confirmed the movement by amendment when it enacted article 21A; and Part IV legislation is defended rather than struck down, both by articles 31A, 31B and 31C and by the general readiness to hold a restriction serving a directive reasonable.

The honest qualification has two parts. First, the complementarity doctrine is a judicial construction and not a text: article 37 still provides in terms that the provisions of Part IV shall not be enforceable by any court, and nothing has altered those words. What changed is what courts are prepared to do with an unenforceable provision, not the provision itself. Second, the traffic has run in one direction only. Directive content has been read into article 21 repeatedly; no fundamental right has ever been demoted to Part IV. So describing the relationship as a balance is accurate as a statement of doctrine and slightly generous as a description of what has actually happened. The international parallel is worth adding: the two Covenants of 1966 made the same split India had made in 1950, and the Vienna Declaration of 1993 affirmed that all human rights are universal, indivisible and interdependent and interrelated, which is the same correction arrived at internationally.

They pair with directives. Article 51A(g) pairs with article 48A; article 51A(k) pairs with article 45 and article 21A. That pairing of State duty with citizen duty is a deliberate drafting technique, as [The Directives Added Later] records.

And they can be given effect by legislation. Parliament may enact a law to enforce a duty, and where it does so the duty supplies the constitutional justification for the law.

Article 51A(g), which carries the weight

Of the eleven, clause (g) is the one that has done real work.

It is the citizen half of the environmental pair. Article 48A directs the State to protect and improve the environment and to safeguard forests and wild life; article 51A(g) places the same obligation on the citizen and adds compassion for living creatures.

Read with article 21 the two produce the enforceable right to a clean environment, and every major decision in Indian environmental law cites them together.

That is the answer to the objection that article 51A is decorative: one clause of it is the foundation of an entire branch of Indian constitutional law. [The Supreme Court and Environmental Jurisprudence] takes it, and MU asks about it on Set 2 Q7(c).

Where the duties came from

The Forty-second Amendment of 1976 inserted Part IVA on the recommendation of a committee constituted to consider constitutional amendment, and the model was the socialist constitutions, which characteristically paired rights with duties.

The idea is not only socialist, however, and an answer that says so has missed the international point. Article 29(1) of the Universal Declaration provides that everyone has duties to the community in which alone the free and full development of his personality is possible, and it was adopted in 1948 with India voting in favour.

The Covenants say the same. The preamble to each of the two Covenants of 1966 recites that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognised in the Covenant.

So the duties are not an Emergency-era intrusion into a purely rights-based scheme; they are the Indian statement of a proposition the international instruments had already made.

Worked example

A question on the Fundamental Duties, or on the balance between rights and obligations.

Give the eleven clauses, or at least (a), (e), (g), (i) and (k), with their actual words.

Say when they arrived: Part IVA, Forty-second Amendment 1976, ten clauses; clause (k) by the Eighty-sixth Amendment 2002.

Say plainly what they are not: not enforceable against a citizen, not addressed to the State, confined to citizens.

Give the four uses.

Give article 51A(g) as the answer to the charge that they are decorative.

Close on article 29(1) of the Declaration and the Covenant preambles, because that is what stops the answer reading as a defence of the Emergency amendment.

What it does NOT mean

It does not mean a citizen can be prosecuted under article 51A. It creates no offence.

It does not mean the duties are conditions of the rights. A person who fails a duty does not thereby lose a fundamental right.

And it does not mean they are legally worthless. Clause (g) is the foundation of Indian environmental law.

Quick revision

• Part IVA, article 51A, inserted by the Forty-second Amendment 1976 with clauses (a) to (j); clause (k) added by the Eighty-sixth Amendment 2002 alongside article 21A.
• The eleven: (a) Constitution, Flag, Anthem; (b) ideals of the freedom struggle; (c) sovereignty, unity and integrity; (d) defend the country and render national service; (e) harmony and common brotherhood, and renounce practices derogatory to the dignity of women; (f) composite culture; (g) natural environment including forests, lakes, rivers and wild life, and compassion for living creatures; (h) scientific temper, humanism and the spirit of inquiry and reform; (i) safeguard public property and abjure violence; (j) strive towards excellence; (k) parent or guardian, education six to fourteen.
• Three things they are not: not enforceable against a citizen, not addressed to the State, citizens only.
• Four uses: construe rights; support the reasonableness of a restriction; pair with directives, (g) with 48A and (k) with 45 and 21A; and be given effect by legislation.
• Clause (g) carries the weight: with article 48A and article 21 it is the foundation of Indian environmental law.
• Origin: article 29(1) of the Declaration, duties to the community; and the preambles to both Covenants.

Test yourself

1. What is article 51A, and what is it not? Article 51A constitutes Part IVA of the Constitution and lists the fundamental duties of every citizen of India: to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; to cherish and follow the noble ideals which inspired the national struggle for freedom; to uphold and protect the sovereignty, unity and integrity of India; to defend the country and render national service when called upon; to promote harmony and the spirit of common brotherhood transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women; to value and preserve the rich heritage of the composite culture; to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures; to develop the scientific temper, humanism and the spirit of inquiry and reform; to safeguard public property and to abjure violence; to strive towards excellence in all spheres of individual and collective activity; and, for a parent or guardian, to provide opportunities for education to a child or ward between six and fourteen. The first ten were inserted by the Forty-second Amendment in 1976 and clause (k) by the Eighty-sixth Amendment in 2002.

It is not three things. It is not enforceable against a citizen: the article creates no offence, imposes no penalty and confers no cause of action, and nobody has been punished for failing to develop a scientific temper. It is not addressed to the State, which is the structural difference from Part IV, since Part IV directs the State and Part IVA directs the citizen. And it is confined to citizens, so a foreigner in India owes none of these duties.

2. What work do the duties actually do? Four things. They construe fundamental rights: where the scope of a right is in issue, a corresponding duty informs it, so clause (e) has featured in argument about practices derogatory to the dignity of women and clause (a) in argument about respect for the national symbols. They support the reasonableness of a restriction: a limitation on a freedom that promotes the discharge of a fundamental duty is more readily upheld under article 19, because the object it serves is one the Constitution itself names. They pair with directives, clause (g) with article 48A and clause (k) with article 45 and article 21A, a deliberate drafting technique in which the State's obligation and the citizen's are enacted together. And they can be given effect by legislation, Parliament being free to enact a law enforcing a duty, in which case the duty supplies the constitutional justification for the law.

Of the eleven, clause (g) has done more work than the other ten together. It is the citizen half of the environmental pair: article 48A directs the State to protect and improve the environment and to safeguard forests and wild life, and clause (g) places the same obligation on the citizen with the addition of compassion for living creatures. Read with article 21, the two produce the enforceable right to a clean environment on which the whole of Indian environmental jurisprudence rests. That single clause is the answer to the charge that Part IVA is decorative.

3. Where do the duties come from, and why does the answer matter? The immediate source is the Forty-second Amendment of 1976, which inserted Part IVA on the recommendation of a committee constituted to consider constitutional amendment, and the acknowledged model was the socialist constitutions, which characteristically paired rights with duties. That provenance is often used to dismiss the duties as an Emergency-era intrusion into a scheme otherwise built on rights alone.

The dismissal is too quick, and the reason matters. Article 29(1) of the Universal Declaration provides that everyone has duties to the community in which alone the free and full development of his personality is possible, and it was adopted in 1948 with India voting in favour. The preamble to each of the two Covenants of 1966 recites that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognised in the Covenant. So the proposition that rights are exercised within a community that makes claims in return is not a socialist import but a feature of the principal international instruments themselves. An answer that makes that point can criticise the timing and the drafting of Part IVA without having to argue the untenable position that a constitution should contain no statement of duties at all.

The Eighty-sixth Amendment, 2002

Three operations at once, which is why [Article 21A: Education as a Fundamental Right] treats it as the model case.

It inserted article 21A in Part III: free and compulsory education for children of six to fourteen.

It substituted article 45, which now directs early childhood care and education until the age of six.

And it inserted article 51A(k), the parental duty to provide educational opportunities between six and fourteen.

It is the only occasion on which a claim was promoted from Part IV into Part III by amendment.

The others worth naming

The First Amendment, 1951, added clause (4) to article 15, added public order, friendly relations with foreign States and incitement to an offence to article 19(2), and created the Ninth Schedule with article 31B.

The Twenty-fourth Amendment, 1971, inserted article 13(4) to put constitutional amendments outside article 13.

The Forty-third Amendment, 1977, omitted article 32A, restoring the Supreme Court's power to consider the constitutional validity of a State law in an article 32 proceeding.

The Ninety-third Amendment, 2005, inserted article 15(5) on admissions to educational institutions including private unaided ones.

The One Hundred and Third Amendment, 2019, inserted article 15(6) and article 16(6) on economically weaker sections, with a ten per cent ceiling.

The pattern

Three observations, and they are the analysis rather than the list.

Part III has been narrowed once and widened once. The removal of property is the only occasion on which a fundamental right was abolished. The insertion of article 21A is the only occasion on which one was created.

The equality articles absorb most of the traffic. Articles 15 and 16 have been amended repeatedly, always to permit a special provision, which reflects a settled constitutional preference for substantive over formal equality.

And the machinery articles were repaired after they failed. Article 32A was removed, articles 20 and 21 were put outside article 359, and article 31C's widened form was struck down. Every one of those is a correction of something that had gone wrong.

Worked example

A question on the development of human rights in the Indian Constitution, or on the Emergency.

Do not list every amendment. Give the three that matter and name four or five others.

On the Forty-second, give both sides: article 39A and article 48A on one hand, the widened article 31C on the other.

On the Forty-fourth, lead with articles 20 and 21 being taken outside article 359, then property, then the unnotified article 22(4).

On the Eighty-sixth, give the three simultaneous operations.

Close on the pattern: narrowed once, widened once; equality absorbs the traffic; and the machinery articles were repaired after failing.

What it does NOT mean

It does not mean the Forty-second Amendment was wholly bad. Articles 39A and 48A came from it and are used constantly.

It does not mean the Forty-fourth completed the repair. The article 22(4) substitution was never notified.

And it does not mean amendments to Part III are unlimited. The basic structure doctrine constrains them, which is why the widened article 31C fell.

Quick revision

• Forty-second, 1976: widened article 31C to cover any directive and bar judicial inquiry, struck down; inserted 39A, 43A, 48A and substituted 39(f); inserted Part IVA, article 51A; added socialist and secular to the Preamble.
• Forty-fourth, 1978: omitted article 31 and article 19(1)(f), inserting article 300A; excluded articles 20 and 21 from article 359; inserted article 38(2); substituted article 22(4), three months to two, which has never been notified; required armed rebellion for an article 352 proclamation.
• Eighty-sixth, 2002: inserted article 21A, substituted article 45, inserted article 51A(k). The only promotion from Part IV to Part III.
• Others: First 1951, article 15(4), three grounds added to 19(2), the Ninth Schedule; Twenty-fourth 1971, article 13(4); Forty-third 1977, omitted article 32A; Ninety-third 2005, article 15(5); One Hundred and Third 2019, articles 15(6) and 16(6), ten per cent.
• The pattern: narrowed once (property), widened once (education); equality absorbs the traffic; the machinery articles were repaired after failing.

Test yourself

1. What did the Forty-second Amendment do to Parts III and IV, and how should it be assessed? It widened article 31C so that a law giving effect to any directive principle, and not merely to article 39(b) and (c), would be immune from challenge under articles 14 and 19, and it added a provision barring any court from asking whether the law in fact gave effect to the directive. It inserted articles 39A on free legal aid, 43A on worker participation and 48A on the environment into Part IV, and substituted article 39(f) on children. It inserted the whole of Part IVA, article 51A, the Fundamental Duties. And it added the words socialist and secular to the Preamble.

It should be assessed as double-edged, and an answer that treats it as uniformly bad is as wrong as one that treats it as uniformly good. The widened article 31C was an attempt to subordinate Part III to Part IV by amendment and did not survive: it was struck down on the reasoning that the balance between the two Parts is itself a basic feature which no amendment may destroy. But articles 39A and 48A came from the same amendment and are among the most heavily used provisions in Part IV, the first being the basis on which free legal aid became an element of the fair procedure article 21 requires, and the second being, with article 51A(g), the foundation of Indian environmental law.

2. Why is the Forty-fourth Amendment the one that matters most on this paper? Because it is the constitutional response to the Emergency and it changed the two things that had failed. It excluded articles 20 and 21 from the article 359 power, so that the enforcement of the protection against retrospective punishment, double jeopardy and self-incrimination, and of the protection of life and personal liberty, can no longer be suspended during any emergency. That answers directly the position of 1975 to 1977, in which a detained person could not approach a court even to allege that the detention had no legal authority at all, and it is the single most important amendment for a paper about the protection and enforcement of human rights.

It also removed the right to property from Part III, omitting article 31 and article 19(1)(f) and inserting article 300A outside Part III, so that property is now protected only by the requirement of authority of law. It inserted article 38(2) on inequalities in income, status, facilities and opportunities among groups as well as individuals. And it required armed rebellion rather than internal disturbance as a ground for a proclamation under article 352, with the Cabinet's advice in writing. The qualification is that it also substituted a new article 22(4) reducing preventive detention without an Advisory Board from three months to two and requiring a serving High Court judge as Chairman, and that substitution has never been brought into force, the bare Act still printing it as a change whose date is yet to be notified.

3. What pattern emerges from the amendments to Part III? Three observations. Part III has been narrowed once and widened once. The removal of the right to property by the Forty-fourth Amendment is the only occasion on which a fundamental right has been abolished, and the insertion of article 21A by the Eighty-sixth is the only occasion on which one has been created. That is a remarkably stable record for a Part that has been in force for over seventy years and has been amended in many other respects.

The equality articles absorb most of the traffic. Articles 15 and 16 have been amended repeatedly, by the First Amendment adding article 15(4), the Ninety-third adding article 15(5), the One Hundred and Third adding articles 15(6) and 16(6), and earlier amendments adding articles 16(4A) and 16(4B). Every one of those permits a special provision rather than restricting one, which reflects a settled constitutional preference for substantive over formal equality. And the machinery articles have been repaired after they failed: article 32A was omitted once its effect on the article 32 jurisdiction was apparent, articles 20 and 21 were put beyond suspension after the Emergency showed what suspension meant, and article 31C's widened form was struck down when it threatened the balance between the Parts. Each of those is a correction rather than a design change, which is the most useful thing to say about the amendment history in an answer about protection and enforcement.

The answer, in two parts.

The Constitution already accommodates the group. Article 26 gives rights to a denomination; article 29(1) to any section of citizens with a distinct language, script or culture; article 30 to minorities; articles 15(4), 15(5), 16(4) and 46 to backward classes and to the Scheduled Castes and Scheduled Tribes; and the Fifth and Sixth Schedules to Scheduled Areas and tribal areas.

And the individual guarantee is what protects a person against their own group. The strongest case for an individual right in India is not against the State at all; it is the case of a person facing exclusion, violence or coercion from the community they belong to, for whom article 17, article 21 and article 25's subjection to the other provisions of Part III are the only protection available.

4. Rights are a luxury for a poor country

The claim. Civil and political rights are affordable once basic needs are met; a country with mass poverty should prioritise development and treat liberties as a later stage.

The answer, in three parts.

The Constitution did not accept the trade-off. It enacted both, putting the civil rights in Part III and the economic claims in Part IV, and article 38's social order in which justice, social, economic and political, informs all the institutions of national life treats them as one project.

The Emergency is the Indian evidence against the trade-off. The suspension of rights between 1975 and 1977 was defended on developmental grounds and did not deliver development. That episode is the strongest single argument available to an Indian answer and should be used.

And the courts refused the trade-off in doctrine. Reading livelihood, shelter, health and food into article 21 was precisely a refusal to treat the two categories as alternatives.

The positive responses, which should not be omitted

An answer that gives only the objections has answered half the question.

The social reform movements of the nineteenth and twentieth centuries, against untouchability, for widow remarriage, against child marriage and for women's education, are human rights movements in substance and are entirely indigenous.

The freedom struggle framed itself in the language of rights from the 1890s onwards.

The civil liberties organisations formed in and after the Emergency, and the public interest litigation they and others brought, are the reason much of Module II exists.

And the constitutional culture is real. Indian litigants approach the courts in very large numbers, and article 32 and article 226 petitions are brought by people of very limited means. Whatever the theoretical objection, the practice is widespread.

The honest conclusion

Three propositions to close on.

The objection is not baseless. The universalist vocabulary was carried by institutions that were unequal, and the criticism that it can be selective in its application is fair.

But the import objection specifically is weak in India, because the Indian demand is older than the instruments and the colonial power opposed it.

And the real Indian problem is not acceptance but delivery. The rights are accepted, written down, litigated and cited. What fails is enforcement, and that is Module III.

Worked example

Her Set 1 Q7(b), on Indian societal responses towards the ideology or philosophy of human rights.

Give the four objections as four numbered claims, each with its answer.

Use the pre-constitutional history against the import objection, and note that the colonial power made the same objection.

Use article 17 as the Indian entry no model supplied.

Use the Emergency against the luxury objection, because it is Indian evidence rather than argument.

Give the positive responses, four of them.

Close on the honest conclusion: the objection is not baseless, the import form of it is weak here, and the real problem is delivery rather than acceptance.

What it does NOT mean

It does not mean the criticisms are worthless. The selectivity criticism is fair and should be conceded.

It does not mean India has no rights culture. The volume of constitutional litigation says otherwise.

And it does not mean acceptance solves anything. A right that is accepted and unenforced is the subject of the next two modules.

Quick revision

• Four objections: Western import; duties not rights; group over individual; a luxury for a poor country.
• Against import: the demand is older than the instruments (1895, 1928, 1931 against 1948); the colonial power made the same objection, and the 1935 Act has no bill of rights; and article 17 is an entry no model supplied.
• Against duties not rights: duties and rights describe one relationship; and India has both, in article 51A, as do article 29(1) of the Declaration and the Covenant preambles.
• Against group over individual: the Constitution already accommodates the group in articles 26, 29(1), 30, 15(4) and (5), 16(4), 46 and the Fifth and Sixth Schedules; and the individual guarantee is what protects a person against their own group.
• Against luxury: the Constitution enacted both; the Emergency is the Indian evidence that suspending rights did not deliver development; and the courts read the economic claims into article 21 rather than trading them off.
• Positive responses: the social reform movements, the freedom struggle, the civil liberties organisations and public interest litigation, and the volume of constitutional litigation.
• Conclusion: the objection is not baseless, the import form is weak in India, and the real problem is delivery, not acceptance.

Test yourself

1. State the import objection and answer it. The objection is that the vocabulary of individual rights held against the State is a product of European liberalism, carried to Asia and Africa first by colonialism and then by the post-war institutions, and that it does not correspond to how Indian society understands the person or distributes obligation. It is the most frequently made of the four objections and the weakest in India.

It has three answers. The Indian demand for justiciable rights is older than the international instruments: the Constitution of India Bill of 1895, the Nehru Report of 1928 with its nineteen justiciable rights, and the Karachi Resolution of 1931 with its combined civil and economic list all predate the Universal Declaration of 1948 by decades. The colonial power made the same objection: the Simon Commission and the Joint Parliamentary Committee both reported that a justiciable declaration of rights was unsuited to Indian conditions, and the Government of India Act 1935 contains none, so the import argument was deployed by the imperial power against Indians who were demanding these rights, which is an awkward pedigree for anyone advancing it now. And Part III contains entries no Western model supplied, principally article 17, which abolishes untouchability, makes the enforcement of any disability arising out of it an offence, binds private persons and admits no exception, and which comes from Indian social reform politics rather than from any American or Irish precedent.

2. How should the duties objection and the group objection be answered? The duties objection is that classical and medieval Indian thought is organised around dharma, an order of obligations attaching to a person's station, rather than around entitlements a person holds and asserts against others. The answer is that duties and rights are two descriptions of a single relationship: an obligation on a ruler not to inflict cruelty and a right in the subject not to be treated cruelly protect the same person against the same conduct, and which of the two is written down is a drafting choice rather than a difference of substance. India in any event has both, since Part IVA, article 51A, states eleven duties of every citizen, and the international instruments themselves do the same, article 29(1) of the Universal Declaration providing that everyone has duties to the community in which alone the free and full development of his personality is possible, and the preambles to both Covenants reciting the individual's responsibility to strive for the promotion and observance of the rights they recognise.

The group objection is that Indian society is organised in communities and that a scheme built on the individual misdescribes how entitlement is actually experienced. The answer is that the Constitution already accommodates the group extensively, in article 26 for religious denominations, article 29(1) for any section of citizens with a distinct language, script or culture, article 30 for minorities, articles 15(4), 15(5), 16(4) and 46 for backward classes and the Scheduled Castes and Scheduled Tribes, and the Fifth and Sixth Schedules for Scheduled and tribal areas. And more importantly, the individual guarantee is precisely what protects a person against their own group. The strongest case for an individual right in India is not the case against the State at all, but the case of a person facing exclusion, violence or coercion from the community to which they belong, for whom article 17, article 21 and the subjection of article 25 to the other provisions of Part III are the only protection there is.

3. Give the honest conclusion on Indian societal responses. Three propositions. The objection is not baseless and should not be dismissed: the universalist vocabulary was carried by institutions that were themselves unequal, and the criticism that human rights argument is applied selectively, pressed against some States and not others, is a fair one that an Indian answer can make with force. Conceding it makes the rest of the answer stronger.

The import form of the objection specifically is weak in India, for the reasons already given: the demand is older than the instruments, the colonial power opposed it in the same terms now used against it, and Part III contains provisions no external model produced. And the real Indian problem is not acceptance but delivery. The positive responses are substantial: the nineteenth and twentieth century social reform movements against untouchability and child marriage and for widow remarriage and women's education are human rights movements in substance and entirely indigenous; the freedom struggle framed itself in the language of rights from the 1890s; the civil liberties organisations formed in and after the Emergency produced much of the public interest litigation that Module II describes; and Indian litigants approach the constitutional courts in very large numbers and from very limited means. The rights are accepted, written down, litigated and cited. What fails is enforcement, and that is the subject of Module III rather than a question about ideology at all.

Part III contains no privacy article. The right was located across Part III, principally in articles 19 and 21, by construction. [The Right to Privacy] takes it.

This omission has largely been repaired, which is why it belongs on a list of omissions with a note attached rather than as an open gap.

5. No general right against private violation

Part III binds the State as article 12 defines it. The exceptions are articles 15(2), 17, 23 and 24, and they are the whole of the direct horizontal effect.

So a violation by an employer, a landlord, a caste body, a school or a family is not a breach of a fundamental right, however serious it is as a human rights matter.

This is the structural omission, and it is the reason Module III is a paper about statutes and commissions. [Part III: the Architecture, and Article 12] states it.

6. No enforceable economic and social minimum

Articles 22 to 26 of the Declaration and the whole of the Economic and Social Covenant are, in India, Part IV, and article 37 makes them unenforceable.

The courts have supplied a great deal by reading livelihood, shelter, health and food into article 21, and Parliament supplied education by article 21A.

But the supply is judicial and case by case, so the entitlement exists in doctrine and depends on litigation, which is not the same as a right.

Two further absences worth a line each

No right to work. Article 23 of the Declaration and article 6 of the Covenant give it; article 41 is a directive.

No article 28 counterpart. The Declaration's entitlement to a social and international order in which the rights can be realised has nothing corresponding in India at all.

What has been supplied, and what has not

The pattern is that the courts could supply what article 21 could carry, and could not supply what needed a new right.

Asylum and nationality both require a claim against the State to confer a status, which no construction of article 21 can produce. That is the honest limit of the article 21 technique, and it is worth stating because it explains why the two largest gaps are the two that remain.

What Part III has that the instruments do not

Two entries, and an answer that lists only the omissions is one-sided.

Article 17, abolishing untouchability, creating an offence and binding private persons.

Article 30, the positive right of minorities to establish and administer educational institutions, where article 27 of the Covenant is framed only negatively.

Worked example

A question asking for a critical assessment of Part III, or asking how far the Constitution meets international standards.

Give the six omissions as a numbered list, each with the international article it corresponds to.

Give the supplied-or-not table, because that is the analysis.

State the pattern: article 21 could carry what it could carry, and could not create a status.

Name what Part III has that the instruments lack, so the assessment is balanced.

Close on the two remaining gaps, asylum and nationality, and say they are the two that most affect people with the least ability to litigate.

What it does NOT mean

It does not mean Part III is deficient overall. It is longer and more specific than most comparable bills of rights.

It does not mean the gaps are unfilled. Torture, privacy and much of the economic minimum have been supplied by construction.

And it does not mean the remaining gaps are accidental. Asylum and nationality both require the State to confer a status, which is a legislative act.

Quick revision

• Six omissions: asylum (Declaration article 14); nationality (article 15); torture (article 5, Covenant article 7, non-derogable); privacy (article 12, Covenant article 17); a general right against private violation; and an enforceable economic and social minimum (articles 22 to 26).
• Two more: no right to work (Declaration article 23, Covenant article 6, in India article 41); and no counterpart to article 28.
• Supplied: privacy, fully; torture, largely; economic minimum, partly, with education by article 21A.
• Not supplied: private violation, nationality, asylum.
• The pattern: article 21 could carry what it could carry and could not create a status, which is why asylum and nationality remain.
• India has signed but not ratified the Convention against Torture.
• What Part III has and the instruments do not: article 17 and article 30 as a positive right.

Test yourself

1. What are the principal omissions from Part III? Six. There is no right of asylum, where article 14 of the Universal Declaration gives everyone the right to seek and enjoy in other countries asylum from persecution, and India is not a party to the Refugee Convention of 1951 or its Protocol and has no refugee statute, so protection rests entirely on article 21 arguments. There is no right to a nationality, where article 15 of the Declaration gives one and protects against arbitrary deprivation, Part II of the Constitution dealing with citizenship as a matter of status rather than conferring any right to it. There is no express prohibition of torture, where article 5 of the Declaration and article 7 of the Covenant supply one and article 7 is non-derogable, and India has signed but not ratified the Convention against Torture.

There is no express right to privacy, where article 12 of the Declaration and article 17 of the Covenant supply one. There is no general right against private violation, since Part III binds the State as article 12 defines it and the only exceptions are articles 15(2), 17, 23 and 24. And there is no enforceable economic and social minimum, the whole of the Declaration's articles 22 to 26 having been placed in Part IV where article 37 makes it unenforceable. Two further absences are worth naming: there is no right to work, article 41 being a directive, and there is nothing corresponding to article 28 of the Declaration on a social and international order in which the rights can be realised.

2. Which gaps have been filled, and what does the pattern show? Privacy has been supplied in full, the right having been located across Part III and principally in articles 19 and 21 by construction. Torture has been supplied largely, the prohibition being read into article 21 with article 20(3) covering the compelled self-incrimination part of the ground. The economic and social minimum has been supplied partly, with livelihood, shelter, health and food read into article 21 and education confirmed by the insertion of article 21A. Private violation has not been supplied at the constitutional level at all, and is dealt with only by statutes. Nationality and asylum have not been supplied by anything.

The pattern is that the courts could supply whatever article 21 could carry, and could not supply what required the creation of a status. Reading a protection into article 21 works where the claim is that the State must not do something to a person, or must not deprive them of a necessity of a dignified life, because the article's words about deprivation of life and personal liberty can be stretched to cover it. It does not work where the claim is that the State must confer a legal status on a person, because no construction of a prohibition on deprivation produces a power to grant. Asylum and nationality are both claims of that second kind, which is why they are the two gaps that remain, and it is the honest limit of the whole article 21 technique.

3. What does Part III contain that the international instruments do not, and why does that matter for an assessment? Two entries. Article 17 abolishes untouchability, forbids its practice in any form, and provides that the enforcement of any disability arising out of it shall be an offence punishable in accordance with law. It binds private persons, creates an offence, admits no exception, and has no counterpart in the Universal Declaration or in the Covenants, which address discrimination in general terms without reaching the specific practice. Article 30 confers on all minorities, whether based on religion or language, a positive right to establish and administer educational institutions of their choice, backed by article 30(2)'s prohibition on discrimination in the grant of aid, whereas article 27 of the Civil and Political Covenant is framed negatively as a right not to be denied the enjoyment of one's culture, religion or language.

It matters because an assessment that lists only the omissions is one-sided and reads as though India were measured against a standard it merely failed to meet. The accurate position is that Part III is longer and more specific than most comparable bills of rights, that it contains provisions drawn from Indian social experience which no international instrument of the period addressed, and that it has significant and identifiable gaps of which the two largest, asylum and nationality, remain open. Closing an answer on those two, and on the observation that they affect precisely the people with the least ability to bring a case, is a stronger conclusion than a general complaint about incompleteness.

2. It did not reach private power

Article 12 confines Part III to the State, with four exceptions.

For most people, most violations come from employers, landlords, families, castes and schools, and the Constitution reaches them only through statutes it obliges Parliament to make.

That is why Module III is a paper about the Protection of Human Rights Act 1993, the atrocities Act and the special courts, rather than about articles.

3. It declared without delivering

The Emergency of 1975 to 1977 is the demonstration. A justiciable Part III, an article 32 remedy and a Supreme Court all existed, and a detained person could not approach a court to allege that the detention had no legal authority.

The repair was constitutional, in the exclusion of articles 20 and 21 from article 359, and judicial, in the enlargement of article 21.

But the general point survives the repair: a right that exists on paper is worth what the institutions enforcing it are worth on the day.

How Module I answers MU's questions

The sentence that carries the transition

The Constitution created rights and a remedy; it did not create the content that made them useful, and it did not create the machinery that would deliver them.

Module II is about the content, and how the Supreme Court built it out of eighteen words.

Module III is about the machinery, and why it works less well than the doctrine.

Module IV is about the standard, and how far India has carried out what she undertook.

Worked example

Any question that asks for an assessment of the constitutional position, or that needs a conclusion.

Give the four achievements, leading with justiciability and the remedy.

Give the three failures, leading with article 37.

Use the Emergency as the evidence for the third, because it is a fact rather than an argument.

Close on the transition sentence, and name what each remaining module supplies.

What it does NOT mean

It does not mean Part III has failed. It is one of the more successful bills of rights in the world by the measure of how much litigation it sustains and how far it has been enlarged.

It does not mean the drafters erred. Their choices were defensible on the information they had, and the corrections were made within the scheme they built.

And it does not mean the problems are solved. Enforcement remains the Indian human rights problem, which is the whole of Module III.

Quick revision

• Four achievements: justiciability with its own remedy (articles 13, 32, 32(2)); a wide list, twenty-four substantive articles, each with its own limitation clause; Indian problems in the text (articles 15(2), 17, 23, 24, all binding private persons); and protection against the future (articles 13(2), 35, 32(4)).
• Three failures: article 37 made the economic claims unenforceable; article 12 left private power untouched; and the Constitution declared without delivering, as the Emergency showed.
• The Emergency is the evidence: a justiciable Part III, an article 32 remedy and a Supreme Court all existed, and a detained person could not test the legality of the detention.
• The transition: the Constitution created rights and a remedy; Module II supplies the content, Module III the machinery, Module IV the standard.

Test yourself

1. What did the Constitution achieve on rights, and how would you rank the achievements? Four things, and justiciability ranks first. The Constitution made the rights in Part III enforceable and gave them their own remedy: article 13 voids any law inconsistent with them to the extent of the inconsistency, article 32 makes the right to move the Supreme Court itself a fundamental right so that Parliament cannot legislate it away, and article 32(2) names the writs in the Constitution so that the Court's power depends on no statute conferring jurisdiction. That is precisely what the Simon Commission and the Joint Parliamentary Committee had said could not sensibly be done in India, and the same document contains an unenforceable Part IV alongside it, which is the clearest available demonstration of what justiciability is worth.

Second, the list is wide: twenty-four articles of substantive rights against the ten amendments of the American Bill of Rights, with each article carrying its own limitation clause on its face, so the Constitution is candid that rights are limited rather than leaving the limits to be discovered. Third, it wrote Indian problems into the text, in article 17 on untouchability, article 23 on begar and traffic in human beings, article 24 on child labour in hazardous employment and article 15(2) on access to wells, tanks, bathing ghats and public places, four articles that bind private persons and none of them drawn from a foreign model. Fourth, it anticipated that rights would need protecting from future majorities, in article 13(2) binding the legislature prospectively, article 35 reserving implementing legislation to Parliament, and article 32(4) restricting suspension of the remedy.

2. What did it fail to do, and what is the evidence? Three things. It made half the list unenforceable, article 37 placing the economic and social claims beyond any court. The reasons given were serious, concerning resources, institutional competence and democratic legitimacy, but the consequence was that the rights the poorest need most were the ones left without a remedy, and the correction had to be made by the courts thirty years later by reading those claims into article 21 rather than by the text itself. It did not reach private power, article 12 confining Part III to the State with only four exceptions, so that for most people most violations, by employers, landlords, families, castes and schools, are not breaches of a fundamental right at all and reach the Constitution only through statutes Parliament is obliged to make.

And it declared without delivering. The evidence is the Emergency of 1975 to 1977, and it is evidence rather than argument. A justiciable Part III existed, article 32 existed, and the Supreme Court existed, and the combined effect of the narrow reading of article 21 and the suspension under article 359 was that a detained person could not approach any court even to allege that the detention had no legal authority whatever. The repair was both constitutional, in the Forty-fourth Amendment's exclusion of articles 20 and 21 from the article 359 power, and judicial, in the enlargement of article 21. But the general proposition survives the repair: a right that exists on paper is worth what the institutions enforcing it are worth on the day they are asked.

3. How does Module I set up the rest of the paper? By establishing that the Constitution created rights and a remedy, and that it created neither the content that made those rights useful nor the machinery that would deliver them. Article 21 as drafted is eighteen words with no defined terms and no restriction clause, and on its original construction it required only that a law exist and its procedure be followed. Article 32 as drafted gives a route to the Supreme Court and names five writs. Neither, by itself, produces a right to livelihood, to shelter, to health, to food, to legal aid or to a clean environment, and neither produces a commission, a special court or a human rights court.

So each remaining module supplies one missing element. Module II supplies the content, tracing how the Supreme Court built almost the whole of Indian human rights law out of article 21 by opening the compartments between articles 14, 19 and 21, requiring procedure to be fair, just and reasonable, and holding that life means more than animal existence. Module III supplies the machinery, the Protection of Human Rights Act 1993 and its commissions, the human rights courts, the special courts, the statutory tribunals and the civil and criminal courts, together with the reasons the machinery works less well than the doctrine. Module IV supplies the standard, measuring what India has actually done against what she undertook when she ratified. That is why the four printed labels are one paper.