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Enforcement, Emergencies and Amendments (Articles 31–35 and beyond)

Fundamental Rights · Part 4 / 4 · Fact-checked on 15 October 2026 · how we check

Written with AI from the sources listed at the bottom of this page, then fact-checked by a separate AI.

How Fundamental Rights are enforced (Articles 32 and 226, the five writs, public interest litigation), when they can be limited (Articles 33–35 and 359), how far Parliament can amend them, what happened to the right to property, and how they relate to the Directive Principles.

A right is only as strong as the remedy behind it. The first three parts of this chapter explained what the Fundamental Rights are; this part explains how they are enforced and where their limits lie. It covers the right to go to the Supreme Court (Article 32) and the High Courts (Article 226), the five writs the courts issue, and public interest litigation. It then looks at when rights can be restricted: for the armed forces and under martial law (Articles 33 to 35), and during an emergency (Article 359). Finally, it explains how far Parliament can amend Fundamental Rights, what happened to the right to property, and how these rights relate to the Directive Principles.

Article 32 guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights in Part III. This makes the remedy itself a Fundamental Right. The Supreme Court can issue directions, orders or writs to enforce any of these rights. In the Constituent Assembly on 9 December 1948, Dr B. R. Ambedkar called this article 'the very soul of the Constitution and the very heart of it'. The Supreme Court has treated the right under Article 32 as part of the basic structure. Under Article 32(3), Parliament may by law empower any other court to exercise these powers within its local limits, and under Article 32(4) the right shall not be suspended except as the Constitution provides, that is, under Article 359.

Article 226 gives every High Court the power to issue writs for the enforcement of Fundamental Rights 'and for any other purpose'. Those four words make the High Courts' writ power wider in scope than the Supreme Court's under Article 32: a High Court can enforce ordinary legal rights too, such as a right under a statute. There is a second difference. Article 32 is itself a Fundamental Right, so the Supreme Court cannot refuse to hear a genuine claim that a Fundamental Right has been violated simply because another remedy exists; Article 226 is not a Fundamental Right, and the High Court has discretion. A person whose Fundamental Right is violated can therefore choose to approach either court, although the Supreme Court sometimes asks petitioners to go to the High Court first.

A writ is a formal written order from a court. The Constitution names five, borrowed from English law. habeas corpus, meaning 'to have the body', orders a person who has detained someone to produce them before the court and show the legal basis for the detention; if there is none, the person is freed. It is the strongest protection of personal liberty, and it can be issued against private individuals as well as public authorities. mandamus, meaning 'we command', orders a public official, public body, lower court, tribunal or government to perform a public duty it has failed or refused to do. It does not lie against a private individual or private body, or against the President or the Governor of a state.

The other three writs keep lower courts and office-holders within the law. prohibition, meaning 'to forbid', is issued by a higher court to a lower court or tribunal to stop it from acting beyond its jurisdiction; it is preventive, issued while the case is still pending. certiorari, meaning 'to be certified', is issued to quash an order already passed by a lower court or tribunal that exceeded its jurisdiction or made an error of law; it is curative. Both were developed against judicial and quasi-judicial bodies, and the Supreme Court has also allowed certiorari against administrative authorities whose decisions affect people's rights; neither lies against a legislature or a private individual. quo warranto, meaning 'by what authority', asks a person holding a public office to show the legal right to hold it. It applies only to a substantive public office created by a statute or the Constitution, not a private or ministerial office, and any interested person, not only the aggrieved one, may seek it.

Traditionally, only the person whose right was violated could go to court; this rule of locus standi (standing) shut out people too poor or powerless to sue. From the late 1970s the Supreme Court relaxed it and developed public interest litigation. Any public-spirited person or organisation can now approach the court on behalf of people who cannot do so themselves, such as prisoners, bonded labourers or pavement dwellers. In S.P. Gupta v. Union of India (1981) the Court affirmed this wider standing. Courts have even treated letters and postcards as writ petitions, sometimes called epistolary jurisdiction. Cases like Hussainara Khatoon (undertrial prisoners) and the Asiad workers' case came through this route. Courts also warn against misuse: a PIL must be in good faith and in the public interest, not a private or political dispute in disguise.

Articles 33 to 35 deal with special situations. Under Article 33, Parliament may by law restrict or abrogate the Fundamental Rights of members of the armed forces, forces charged with maintaining public order, intelligence and counter-intelligence bodies, and related telecommunication systems, so that discipline is maintained and duties are properly discharged. Only Parliament has this power, not state legislatures. Article 34 allows restrictions on Fundamental Rights while martial law is in force in an area, and lets Parliament indemnify officials for acts done to maintain or restore order there; the Constitution does not define martial law. Article 35 reserves certain law-making to Parliament alone: laws under Articles 16(3), 32(3), 33 and 34, and laws prescribing punishment for acts declared offences in Part III, such as untouchability and forced labour.

Article 359 deals with the other rights during a national Emergency. The President may by order suspend the right to move any court for the enforcement of the Fundamental Rights named in the order, for the period of the emergency or a shorter period, for the whole of India or part of it; every such order must be laid before Parliament. The rights themselves are not suspended, only their enforcement in court. Since the 44th Amendment (1978), the enforcement of Articles 20 and 21 can never be suspended. The change came from bitter experience: in ADM Jabalpur v. Shivkant Shukla (1976), during the 1975 Emergency, a majority of the Supreme Court held that detainees could not file habeas corpus petitions once the enforcement of Article 21 was suspended. Justice H.R. Khanna dissented, and in K.S. Puttaswamy (2017) the Supreme Court declared the majority view wrong.

Can Parliament amend the Fundamental Rights? The answer changed over twenty years. In Shankari Prasad (1951) the Supreme Court held that Parliament could amend any part of the Constitution, including Part III, because a constitutional amendment is not 'law' under Article 13. In I.C. Golaknath (1967) an eleven-judge bench reversed this: an Amendment is 'law', so Parliament cannot take away or abridge Fundamental Rights. Parliament replied with the 24th Amendment (1971), which said Parliament may amend any provision, including Part III, and added Article 13(4). In Kesavananda Bharati (1973) a thirteen-judge bench accepted that Parliament can amend any part, but held that it cannot alter the basic structure of the Constitution. In Minerva Mills (1980) the Court added that limited amending power and the balance between Fundamental Rights and Directive Principles are themselves part of the basic structure.

The right to property shows this struggle most clearly. The original Constitution protected property through Article 19(1)(f) and Article 31. When states passed laws to abolish zamindari and redistribute land, courts struck some of them down, so the First Amendment (1951) added Article 31A, saving laws for the acquisition of estates, and Article 31B with the Ninth Schedule: laws placed in that Schedule could not be challenged for violating Fundamental Rights. The 25th Amendment (1971) added Article 31C to protect laws giving effect to certain Directive Principles. Finally, the 44th Amendment (1978) removed property from Part III altogether. It is now a constitutional and legal right under Article 300A: no person shall be deprived of property save by authority of law. It cannot be enforced through Article 32. In I.R. Coelho (2007) a nine-judge bench held that laws added to the Ninth Schedule after 24 April 1973, the date of the Kesavananda judgment, can be struck down if they damage the basic structure.

Fundamental Rights and the Directive Principles of State Policy (Part IV) are best understood side by side. Fundamental Rights are justiciable: a court will enforce them. Directive Principles are non-justiciable: Article 37 says no court can enforce them, though they are 'fundamental in the governance of the country' and the State must apply them in making laws. Most Fundamental Rights limit the State (do not discriminate, do not detain unlawfully), while most Directive Principles direct the State to act (secure livelihood, equal pay, public health). Early on, the courts held that Fundamental Rights prevail in a conflict (Champakam Dorairajan, 1951). Today the courts try to read the two together: Minerva Mills (1980) called the balance between them part of the basic structure, and courts often use Directive Principles to give content to rights, as in reading free legal aid into Article 21. The DPSP chapter covers Part IV in detail.

Putting the four parts together, Part III works as a system. It names the rights (Articles 14 to 30), allows reasonable limits written into each right, gives a remedy through the courts (Articles 32 and 226 and the writs), and protects the core of the system from being dismantled, through the basic structure doctrine and the rule that Articles 20 and 21 survive even an emergency. For the exam, remember four points: Article 32 is itself a Fundamental Right; Articles 20 and 21 cannot be suspended under Article 359; Article 358 suspends only Article 19, and only for war or external aggression; and property is now a legal right under Article 300A, outside Part III.

Exam traps

• Article 32 is itself a Fundamental Right; Article 226 is not, but its scope is wider ('for any other purpose').
• Habeas corpus can be issued against private persons; mandamus cannot.
• Prohibition is issued before a lower court decides; certiorari after. Neither lies against a legislature.
• Quo warranto can be sought by any interested person, not only the aggrieved person, and only for a public office created by law.
• Only Parliament, not state legislatures, can restrict the Fundamental Rights of the armed forces (Article 33).
• Under Article 359 the President suspends enforcement, not the rights themselves; Articles 20 and 21 can never be suspended (44th Amendment).
• Kesavananda Bharati (1973): Parliament can amend any part, including Fundamental Rights, but not the basic structure.
• Property is a legal right under Article 300A (44th Amendment, 1978); it cannot be enforced through Article 32. Ninth Schedule laws added after 24 April 1973 can be reviewed (I.R. Coelho, 2007).

Recap

• Article 32: right to move the Supreme Court is a Fundamental Right; 'soul and heart' (Ambedkar); part of the basic structure.
• Article 226: High Courts issue writs for Fundamental Rights and any other purpose; wider scope, not itself a Fundamental Right.
• Five writs: habeas corpus, mandamus, prohibition, certiorari, quo warranto.
• PIL: relaxed standing (S.P. Gupta 1981); letters can be treated as petitions; must be bona fide.
• Articles 33–35: Parliament alone can restrict rights of armed forces, police and intelligence; martial law; laws on offences in Part III.
• Article 359: President suspends enforcement of named rights in an emergency; never Articles 20 and 21; ADM Jabalpur (1976) overruled in Puttaswamy (2017).
• Amendment: Shankari Prasad (1951) → Golaknath (1967) → 24th Amendment (1971) → Kesavananda (1973, basic structure) → Minerva Mills (1980).
• Property: Articles 31A, 31B (Ninth Schedule), 31C; removed from Part III by the 44th Amendment; now Article 300A. FR are justiciable; DPSP are not (Article 37).

Practice questions

Sources

• Constitution of India, Articles 31A–35, 37, 226, 300A, 358, 359 and 368, and the Ninth Schedule — https://legislative.gov.in/constitution-of-india/
• Constitution (First Amendment) Act, 1951; (Twenty-fourth) 1971; (Twenty-fifth) 1971; (Forty-fourth) 1978 — https://www.indiacode.nic.in
• Constituent Assembly Debates, 9 December 1948 (Dr B. R. Ambedkar on draft Article 25, now Article 32) — https://eparlib.nic.in
• Supreme Court of India: Shankari Prasad v. Union of India (1951); I.C. Golaknath v. State of Punjab (1967); Kesavananda Bharati v. State of Kerala (1973); ADM Jabalpur v. Shivkant Shukla (1976); Minerva Mills v. Union of India (1980); S.P. Gupta v. Union of India (1981); I.R. Coelho v. State of Tamil Nadu (2007); K.S. Puttaswamy v. Union of India (2017) — https://digiscr.sci.gov.in