Political Philosophy
Abolished and Forbidden: The Four Places Part III Stops Addressing the State
3 September 2026 · 13 min read
Part III is ordinarily summarised in one sentence: it is a list of things the State may not do. The summary has textual warrant. Article 12 opens the Part with a definition — "in this Part, unless the context otherwise requires, 'the State' includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India" — and the definition would be pointless unless the Part were addressed to that entity. Article 13 supplies the sanction, and it too is addressed to the State: clause (2) provides that "the State shall not make any law which takes away or abridges the rights conferred by this Part", and that any law made in contravention shall be void to the extent of the contravention.
The summary is accurate for most of the chapter. Article 14 begins "The State shall not deny". Article 15(1) begins "The State shall not discriminate". Article 18(1) provides that no title shall be conferred "by the State". Every restriction clause in Article 19 is framed as a saving in favour of the State's power to make a law. Where a guarantee is drafted impersonally, its subject matter usually supplies the addressee anyway: Article 16(1) says "There shall be equality of opportunity for all citizens", naming nobody, but confines itself to "employment or appointment to any office under the State", and Article 16(2) does the same. The drafting is consistent enough that its exceptions are worth locating.
There are four. In Articles 15(2), 17, 23(1) and 24 the Constitution prohibits conduct without naming the State — or anyone else — as the party prohibited, and without confining the prohibition to a field the State occupies. The omission is not a lapse of style. Each of the four sits beside a clause that does name the State, and the sharpest illustration is a pair of clauses in adjacent articles that open with the same five words. Article 16(2) reads: "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 employment or office under the State." Article 15(2) begins "No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to" — and then lists places, and stops. The closing words that tie Article 16(2) to the State have no counterpart. Something else is going on, and Article 35 is the clause that says what.
The provisions that name no addressee
Article 15 is the clearest case, because the shift happens inside a single article. Clause (1) reads: "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them." Clause (2) drops the actor, and the places it then lists are the reason. The disability is prohibited "with regard to — (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) 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."
Shops, restaurants, hotels and places of public entertainment are, characteristically, privately owned. Sub-clause (b) does mention places maintained out of State funds, but joins to them, in the alternative, places merely "dedicated to the use of the general public" — a dedication a private owner makes. Clause (3) then reverts to the ordinary form — "Nothing in this article shall prevent the State from making any special provision for women and children" — so the State reappears in the article the moment the drafting returns to what the State may do.
Article 17 is shorter and more emphatic: "'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." Neither sentence has a named subject. The practice is abolished at large.
Article 23(1) is drafted the same way: "Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law." Clause (2) then restores the ordinary addressee — "Nothing in this article shall prevent the State from imposing compulsory service for public purposes" — reproducing the pattern seen in Article 15.
Article 24 completes the set: "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." The employer is not identified, and nothing in the sentence limits it to employment by the State.
Four provisions, then, that regulate conduct rather than restrain an institution. Their subject matter is what they have in common: exclusion from a shop or a well, traffic in persons, labour extracted without wages, a child at work. These are harms inflicted by private persons through ordinary transactions. A prohibition addressed to the State would not have reached any of them.
The two that the Constitution makes criminal
Of the four, two carry a second sentence that the other two do not. Article 17 provides that the enforcement of any disability arising out of untouchability "shall be an offence punishable in accordance with law". Article 23(1) provides that any contravention of the prohibition "shall be an offence punishable in accordance with law".
These are the only two places in Part III where the Constitution declares an act to be an offence. The word appears elsewhere in the Part — Article 19(2) saves laws imposing restrictions in relation to "incitement to an offence", and Article 20 is entirely about the treatment of persons charged with, or convicted of, offences — but in those places the Constitution is regulating a category the criminal law has already created. In Articles 17 and 23 it is placing conduct into that category itself.
It is worth being precise about what the declaration does and does not accomplish. Neither provision creates an offence in the sense of specifying an act, a mental element and a punishment. Both say the act "shall be an offence punishable in accordance with law" — that is, they direct that the conduct be criminal and leave the specification to a legislature. A constitution can declare a practice abolished; it cannot by itself supply a charge, a court or a sentence.
That leaves an obvious question. Why did these two provisions need to say anything about offences at all, when no other guarantee in Part III does?
Why the ordinary machinery could not reach them
The answer is that the enforcement machinery Part III carries with it does not operate against a private person.
Article 13 works by invalidating law. Clause (1) makes pre-constitutional laws void to the extent of their inconsistency with the Part; clause (2) prohibits the State from making inconsistent law and voids what is made. Both clauses take a legal instrument as their object. Neither has anything to say to a shopkeeper who turns a customer away, or to a creditor who takes labour in place of interest. There is no enactment to strike down, because the violation is not accomplished through an enactment.
Article 32 works by issuing process. Clause (1) guarantees the right to move the Supreme Court for the enforcement of the rights conferred by the Part; clause (2) confers the power 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". Four of the five named writs are, in their traditional operation, directed at public authorities and courts — they command an official duty, restrain an inferior tribunal, question a title to public office, or bring up a record for review. Habeas corpus is the exception, and reaches whoever holds the body. For the rest, the remedy presupposes a respondent who holds public power.
So for the four horizontal provisions the Constitution's own remedies run out. Voidness has no target and most of the writs have no respondent. If the practices named in Articles 17 and 23 were to be reached at all, they had to be reached by the one branch of law that operates directly on the conduct of private persons — the criminal law. The second sentence of each provision is the Constitution acknowledging that, and directing the borrowing.
What Article 35 does with the power to punish
Having declared two acts to be offences, the Constitution then decides who may punish them, and does so in unusually strong terms.
Article 35 opens with "Notwithstanding anything in this Constitution" — one of the widest non-obstante formulas in the document — and provides in clause (a) that "Parliament shall have, and the Legislature of a State shall not have, power to make laws — ... (ii) for prescribing punishment for those acts which are declared to be offences under this Part". It adds a command: "and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii)".
The exclusion has to be read against the Seventh Schedule, because it displaces the ordinary distribution. Entry 1 of the Concurrent List is "Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II" — so criminal law is, as a general matter, a field in which both Parliament and the State legislatures are competent. Entry 64 of the State List gives a State "Offences against laws with respect to any of the matters in this List". Entry 93 of the Union List gives Parliament the corresponding power for its own List.
That distribution has a logic, and it is a logic of subject matter. A legislature may punish contraventions of laws on the subjects allotted to it; the exclusions follow from the allocation. A State cannot prescribe punishment for offences against a law on a List I subject, but that is not a special disability — it is the ordinary consequence of the subject belonging to the Union.
Article 35(a)(ii) does not work that way. It does not allot a subject and let the criminal competence follow. It identifies a class of acts by how they were declared — "those acts which are declared to be offences under this Part" — and removes the power to punish them from every State legislature directly, notwithstanding anything in the Constitution, including the concurrent entry that would otherwise have supplied the competence. The exclusion is defined by the source of the prohibition rather than by the field it belongs to, and that is what makes it unusual.
The reason follows from what the two provisions are. A practice abolished by the Constitution is abolished uniformly. If the punishment for enforcing an untouchability disability could vary by State — heavier in one, nominal in another, or absent where a legislature declined to enact — then the abolition would hold to a different degree in different places, and the declaration in Article 17 would be a statement about the strength of local majorities rather than about the country. The exclusivity is not a comment on the competence of State legislatures. It is a consequence of having put the prohibition in the Constitution rather than in a statute.
A command with no date
The other half of Article 35(a) is the direction that Parliament shall make the punishing laws "as soon as may be after the commencement of this Constitution". It is a duty in the imperative, addressed to the legislature, carrying a time expression and no time limit, and attaching no consequence to delay.
What followed is a matter of record. For Article 17, Parliament enacted the Untouchability (Offences) Act, 1955 (Act 22 of 1955), amended and renamed the Protection of Civil Rights Act, 1955 in 1976. Five years. Article 23 was answered in parts: separate legislation on the trafficking limb followed in 1956, while for begar and forced labour the principal statute is the Bonded Labour System (Abolition) Act, 1976 (Act 19 of 1976), which abolished the bonded labour system with effect from 25 October 1975. Twenty-five years.
The comparison worth drawing is with Article 37, which imposes on the State the duty to apply the directive principles in making laws and in the same breath declares that no court may enforce them. Article 35 is not drafted that way — nothing in it says the duty is unenforceable — but the practical position it produces is not far off. A provision that commands legislation, fixes no date and specifies no default supplies a standard by which the delay can be described, and nothing more. That is not a small thing; it is simply a different thing from a remedy.
What the exceptions show about the rule
The four provisions are usually taught as a curiosity — a short list of fundamental rights said to operate "horizontally", set against a chapter that otherwise binds the State. Read together with Article 35, they look less like an exception to a scheme and more like a second scheme running alongside the first.
The main scheme assumes that the danger to a right comes from the State, and answers it by withdrawing power: the State shall not deny, shall not discriminate, shall not make any law. The remedy is invalidation, and the litigant's position is defensive. In the four provisions the assumption is inverted. The danger comes from society, and the State is not the party to be restrained but the instrument to be used. The remedy cannot be invalidation, because there is nothing to invalidate; it has to be prosecution, and prosecution requires a statute that does not exist until someone writes it.
That inversion explains the shape of Article 35. Where a constitution restrains, it can operate on its own — the restraint takes effect the day the document commences, and a court can give it effect by refusing to apply an offending law. Where a constitution directs, it cannot. It must identify a legislature, confer the power, exclude the others, and ask. Article 35 does all four in a single sentence, and the asking is the part it could not make self-executing.
The line between the two schemes is drawn by subject matter, and the four provisions share one. Untouchability, exclusion from public places and wells, traffic in persons, begar, child labour in mines and factories — each is a practice that predates the Constitution, was sustained by private arrangement rather than by public command, and would have survived a document that only spoke to officials. The technique is not extended to the rest of Part III. It appears in the places where restraining the State would have left the right untouched, and nowhere else.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.