CHAPTER 6 – FUNDAMENTAL RIGHTS

 

FUNDAMENTAL RIGHTS

( ARTICLES 12 – 35)

 

 

PART III OF THE CONSTITUTION OF INDIA

 

It contains a long list of fundamental rights guaranteed to the individuals by the Constitution of India, which are justiciable in the court of law, to protect them from such arbitrary actions of the state as well as the private individuals which infringes upon their personal liberties and freedoms. The fundamental rights are defined as the basic human rights of all individuals, subject to reasonable restrictions. As these rights are fundamental or essential for existence and all-round development of individuals, these are known as Fundamental Rights. The constitution originally provided for seven fundamental rights:

  1. Right to Equality (Articles 14 – 18)
  2. Right to Freedom (Articles 19 – 22)
  3. Right against Exploitation (Articles 23 – 24)
  4. Right to Freedom of Religion (Articles 25 – 28)
  5. Cultural and Educational Rights (Articles 29 – 30)
  6. Right to Property (Article 31)
  7. Right to Constitutional Remedies (Article 32)

 

HISTORICAL BACKGROUND

The Fundamental Rights in India derive their inspiration from England’s Bill of Rights (1689), the United States Bill of Rights (1787), and France’s Declaration of the Rights of Man (1789).

In 1919, the Rowlatt Act gave extensive powers to the British government and Police, allowing them indefinite arrest and detention of individuals, warrantless searches and seizures, restrictions on public gatherings, and intensive censorship of media and publications. The public opposition to this act eventually led to mass campaigns of non-violent civil disobedience throughout the country demanding guaranteed civil freedoms, and limitations on government power. 

In 1928, the Nehru Commission, comprising of the representatives of Indian political parties, proposed for the first time the guarantee of Fundamental Rights to all the citizens of India.

In 1931, at the Karachi Session of Indian National Congress, a resolution was adopted on Fundamental Rights and Economic Policy.

In 1948, the Fundamental Rights were finally included in the first Draft Constitution by the Constituent Assembly set up in 1946 to frame the Constitution of India.

 

FEATURES OF THE FUNDAMENTAL RIGHTS

  1. Some of the Fundamental Rights are available only to the citizens while others are available to all individuals, including foreign nationals except those from enemy nations or those convicted of crimes.
  2. They are not absolute but qualified (i.e. subject to certain conditions). In India, the power to provide reasonable restrictions on Fundamental Rights in the interest of security, defence and integrity of India has been conferred on the legislature, although subject to the judicial review. The power to decide what is ‘reasonable’ is conferred to the judiciary.
  3. In India, there has been a long debate on whether Fundamental Rights are amendable under provisions of Article 368 or not.
    1. ORIGINAL PROVISION– The Supreme Court held that no part of the Constitution was unamendable, and hence Fundamental Rights could be amended under provisions of Article 368.
    2. GOLAK NATH vs STATE OF PUNJAB CASE (1967) – The Supreme Court held that Fundamental Rights have been given transcendental position by the makers of the Constitution, and hence Fundamental Rights could not be amended under provisions of Article 368.
    3. KESHAVANANDA BHARTI CASE (1973) – The Supreme Court held that only those provisions of Fundamental Rights are amendable under the provisions of Article 368, which do not seek to change the ‘Basic Structure of the Constitution’.The judgement as to what constitutes the ‘Basic Structure of the Constitution’ lies with the Supreme Court.
  4. Enumeration of Fundamental Rights in India is exhaustive, and as such only those rights are treated as Fundamental or Essential, which are enumerated in Part III of the Constitution of India. This is different from American Constitution which says that Bill of Rights cannot be construed (interpreted in a particular way) to deny such inalienable natural rights to the individual which have not been mentioned in the Bill of Rights.
  5. Most of the Fundamental Rights are available against the arbitrary actions of the State, with a few exceptions where these are available against the actions of the private individuals too. However, the constitutional remedy i.e. the right to go directly to the Supreme Court or High Court for enforcement of Fundamental Rights, is available only against the arbitrary action of the state, and not against the arbitrary action of the private individuals, in which case the normal legal remedy shall be available.
  6. The Fundamental Rights (except those guaranteed under Articles 20 and 21) can be suspended during National Emergency. Further, Fundamental Rights under Article 19 can be suspended only when such emergency is declared on grounds of war or external aggression, and not on grounds of internal emergency due to armed civil rebellion.

 

 

ARTICLE 12

 

This articles defines the word “State’ for the purpose of Part III and Part IV of the Constitution of India.

The State includes the

  1. The Executive and the Legislative organs of the Union Government i.e. the Government and Parliament of India.
  2. The Executive and the Legislative organs of the state Government i.e. the Government and the Legislature of each of the states.
  3. All local authorities within the territory of India such as Municipalities, Panchayats, District Boards, Trusts etc.
  4. All other authorities working within or outside the territory of India such as Public Sector Enterprises, Embassies of the Government of India etc.

 

DESCRIPTION

The State has been defined under Article 12 in a wider sense so as to include all the executive as well as legislative organs of the Union, State and Local Authorities. It also includes all Public Sector Enterprises and agencies working under the direct control of the Union and the State Governments. According to Supreme Court, even a private enterprise or agency working as an instrument of the State falls within the meaning of the ‘State’ under Article 12.

For the sake of clarity throughout the subsequent chapters, we will use the word ‘states’ to denote ‘states of India’.

 

 

ARTICLE 13

 

All laws inconsistent with or in violation of Fundamental Rights specified under Part III of the Constitution of India, shall be null and void.

The term ‘law’ under this article shall include:

  1. All permanent laws enacted by the Parliament or the state legislatures.
  2. All temporary laws, such as ordinances issued by the President or the state Governors.
  3. All executive orders, passed under law making powers delegated to the executive organs.
  4. All non legislative laws that have the force of law.

Nothing in this article shall apply to any amendment of this Constitution made under article 368.

 

DESCRIPTION

The Fundamental Rights are guaranteed by the Constitution not only against the action of the executive but also against that of the legislature. Any act of the executive or legislature which takes away or abridges any of these rights shall be null and void (invalid).

The last clause was somewhat ambiguous and self contradicting in nature because on the one hand, Article 13 provides that any law inconsistent with or in violation of Fundamental Rights could be declared invalid, and on the other hand, the same Article 13 provides the legislature the power to modify any Fundamental Right itself under its power to amend the Constitution of India under provisions of the Article 368.

The Supreme Court held in the famous Kesavananda Bharati Case (1973) that a Constitutional Amendment can be challenged on grounds of inconsistency with or violation of a Fundamental Right, specified under Part III of the Constitution of India, that forms the ‘Basic Structure of the Constitution’, and if found so can be declared as null and void.

Hence, the current position is that the Parliament can amend any part of the Constitution, including the Fundamental Rights specified in Part III of the Constitution, except when such an amendment seeks to change the ‘Basic Structure of the Constitution’. Since the judgment of what constitutes the ‘Basic Structure of the Constitution’ lies with the Supreme Court, we can say that Supreme Court is the ultimate protector and guarantor of the existing Fundamental Rights.

 

 

RIGHT TO EQUALITY (ARTICLES 14 – 18)

 

 

ARTICLE 14

 

EQUALITY BEFORE THE LAW AND EQUAL PROTECTION OF THE LAW

The State shall not deny to any person, within the territory of India, :

  1. equality before the law.
  2. equal protection of the law.

 

DESCRIPTION

Article 14 deals with equality before law, and equal protection of the law. Although both sound as one and the same thing, they differ from each other significantly.

 

EQUALITY BEFORE  LAW OR RULE OF LAW

Equality before the law means that no man is above the law of the land. It refers to the absence of any special privilege by reason of birth, caste, colour, class or like, in favour of an individual, and the equal subjection of all classes to the ordinary laws of the land. In other words, equality before law means ‘Rule of Law’. This concept is of British Origin. The Supreme Court has ruled that the ‘Rule of Law’ as embodied in Article 14 is a ‘Basic Feature of the Constitution’.

 

EQUAL PROTECTION OF LAW

Equal protection of law means equal treatment in similar circumstances, both in terms of privileges conferred and in the liabilities imposed by the laws. It means that laws shall be applied equally to people in similar circumstances. If there is a reasonable basis for classification for the purpose of application of laws, the legislature is empowered to make such a classification. It is to be understood that equal treatment in all cases would itself lead to discrimination, and hence sometimes reasonable discrimination is needed to ensure equal treatment. For e.g. everyone cannot be taxed equally but the persons in the same income range, must be taxed equally. Thus, the guarantee of equal protection is the guarantee of equal treatment of persons in ‘equal circumstances’, permitting reasonable differentiation in different circumstances. In order to be reasonable, a classification must not be arbitrary but rational.  Thus, it has been held that:

  1. In cases of offences relating to women, the women may be placed in a more favourable position, considering their weaker social position in the Indian society.
  2. In cases of offences relating to SCs, STs and OBCs, they may be placed in a more favourable position, considering their weaker social position in the Indian Society.

The concept of equal protection of the law came from American Constitution.

Since, the distinction between ‘Equality before law’ and ‘Equal protection of law’ is subtle, let us try to understand this with the help of an example. Suppose you inherit a new house which costs 100 lacs. No matter you are a billionaire, or a middle class salaried person, or a lower middle class person, or someone from socially deprived section of the society, you are bound to pay equal registration/inheritance tax. The wealthy would not be charged a higher tax, the deprived would not be charged a lesser tax. Similarly, in a criminal case, the punishment would be same for everyone, irrespective of the background, be it a peon or a Prime Minister. This is equality before law i.e. the law stays the same for everyone i.e. you have to pay the tax. However, in case of income tax for the aforementioned category of people, the tax rates might be different based on which income tax slab one falls in. So the billionaire might be paying 30 percent tax on his income, the middle class person might be paying 20 percent tax on his income, while the lower middle class person might not need to pay any tax at all. Here, the differentiation, is made on the application of the law, based on income classifications. Hence all billionaires need to pay 30 percent tax on their income, all middle class people need to pay 20 percent tax on their income and so on. This is equal protection of the law i.e. law treats everyone equally, under the same circumstances, permitting differentiation in different circumstances.

The right to equality guaranteed under Article 14 is not absolute, and there are certain exceptions to it.

  1. The President or the Governor is not answerable to any court of law for the exercise of the powers and duties of his or her office.
  2. No criminal proceedings can be initiated or continued against the President or the Governor during his or her term of office, for any acts done by him or her in his personal or professional capacity, before or after he or she entered the office.
  3. No civil proceedings can be initiated against the President or the Governor during his or her term of office, for any acts done by him or her in his personal or professional capacity, before or after he or she entered the office, until the expiration of two months after the notice in writing has been delivered to the President or the Governor mentioning the details of such a proceeding.
  4. No member of the Parliament or any state legislature shall be liable to any proceedings in any court of law in respect of anything said or done by him in Parliament or the state legislature.
  5. No criminal or civil proceedings can be initiated against the foreign dignitaries, diplomats, and ambassadors.
  6. No criminal or civil proceedings can be initiated against the members of the United Nations Organization and its agencies.

 

 

ARTICLE 15

 

PROHIBITION OF DISCRIMINATION ON GROUNDS OF RELIGION, RACE, CASTE, SEX, OR PLACE OF BIRTH

  1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
  2. 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,
    1. access to shops, public restaurants, hotels and places of public importance.
    2. the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds.
  3. Nothing in this article shall prevent the State from making any special provision for women and children.
  4. Nothing in this article shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
  5. Nothing in this article shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes, in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.
  6. Nothing in this article shall prevent the State from making any special provision for the advancement of any economically weaker sections (EWS) of citizens other than the classes mentioned in clauses (4) and (5), in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten percent of the total seats in each category.

 

DESCRIPTION

Article 15 prohibits discrimination on the basis of only religion, race, caste, sex or place of birth. If there are grounds for differentiation, other than those mentioned in Article 15, the discrimination will not be considered as unconstitutional. In case, such other grounds of differentiation are arbitrary or against the principle of natural justice, remedy can be sought through regular legal remedies. Therefore, reserving a job of a doctor for someone with a degree of MBBS or MD, or reserving a job of an engineer for someone with a degree of M.Tech is not unconstitutional, because this discrimination is required by the nature of the job. Similarly, reserving a job of a nurse for women, is not unconstitutional, because this discrimination is not just on the basis of gender, but due to requirements of the job.

While the provision in Clause (1) is provided against the State action, provision in Clause (2) is provided against the individual actions as well.

Clause (3) provides for protective discrimination. The State is permitted to make special provisions for women and children. Therefore, reservation of seats for women in public bodies or free education for children in schools (and not for adults in colleges) is allowed under Article 15.

Clause (4) provides for compensatory discrimination. Therefore, the State is permitted to make special provisions for the advancement of socially or educationally backward classes such as SCs, STs, OBCs, EWS etc through reservation of seats or fee concessions in institutions, including private institutions, whether aided or unaided by the State, except minority educational institutions.

  • The 93rd Constitutional Amendment Act (2006) provided for an additional quota of 27 percent for the candidates belonging to Other Backward Classes (OBCs), in all central higher educational institutions, thereby increasing the total reservation from 22 percent (that existed only for SCs & STs) to 49 percent (for SCs, STs and OBCs). Nevertheless, the Supreme Court held in 2008 that the Creamy Layer i.e. economically or educationally advanced, among OBCs must be excluded from reservation benefits in higher educational institutions.
  • The 124th Constitutional Amendment Act (2019) provided for an additional quota of 10 percent to students from Economically Weaker Section (EWS) i.e. people belonging to the General Category having an annual family income less than INR 8 lakhs and who do not belong to any of the reserved categories such as SC, ST or OBC. 

Clause (5) moves a step ahead and empowers the country to make reservations with regard to admissions into educational institutions both privately run and those that are aided or not aided by the government. From this rule only the minority run institutions such as the Madrasas are exempted.

Clause (6) enables the state government to provide upto 10 percent additional reservation, over and above the existing reservation quota limit of 50 percent, to people from Economically Weaker Sections (EWS). The government can from time to time can decide the criteria for EWS.

 

RIGHT OF THE WOMEN TO INHERIT ANCESTRAL  PROPERTY

As per the Hindu Succession Act (1956), a Hindu joint family consists of lineal descendants of a common ancestor. In other words, it consists of a male head and his descendants, including their wives and unmarried daughters. A coparcenary is a smaller unit of the family that jointly owns a property. It provided that only males, upto three levels i.e. sons, grandsons and great-grandsons, could be considered as coparceners, unless provided otherwise through the will. This meant that even the codified law did not address the conventional discrimination against women. The law by excluding the daughter from participating in the coparcenary ownership not only contributed to her discrimination on the ground of gender but also led to oppression and negation of her fundamental right of equality guaranteed by the Constitution.

In 2005, the Supreme Court conferred inherent coparcenary rights to daughter as well, unless provided otherwise through the will. It declared that a coparcener’s daughter would become a coparcener in her own right by birth, in the same manner as a son, and would have the same rights that she would have, had she been a son. 

 

 

ARTICLE 16

 

EQUALITY OF OPPORTUNITY IN THE MATTER OF PUBLIC EMPLOYMENT

  1. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
  2. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be discriminated or declared ineligible for any employment or office under the State.
  3. Nothing in this article shall prevent the Parliament from making any law prescribing residence in state as a requirement for appointment to any office under the state.
  4. Nothing in this article shall prevent the State from making any provision of reservation for any backward class, which, in the opinion of the State, is not adequately represented in the services under the State.
  5. Nothing in this article shall prevent the State from making any provision of reservation for members of a particular religion or community to manage their religious institutions.

 

DESCRIPTION

Article 16 prohibits the state to discriminate against citizens in the matter of public employment on the basis of religion, race, caste, sex, descent, place of birth or any of them. However, it provides certain exemptions where the state can discriminate against supposedly privileged section of the society to accommodate those from disadvantages or under-represented sections of the society. Thus, equality of opportunity provided under Article 16 of the Constitution of India signifies two things –

  1. Equality of opportunity means equality among members of the same class of employees.
  2. Reservations to be provided to the historically disadvantaged sections of the society to provide them level playing field.

Existence of equality of opportunity does not depend only on absence of disabilities but also on presence of abilities. Thus, discrimination on the basis of qualifications, merit, and efficiency does not violate Article 16. 

Many argue that the reservation for SCs/STs/OBCs is against Article 16 (Right to equality). But one should understand that the absence of equal opportunities for the disadvantaged (SCs/STs/OBCs) due to historic injustice by virtue of their birth entails them reservation. In other words, the right to equality is the basis of reservation as there is no level-playing field among castes. Imagine a student from a remote rural village where he has to walk 10-15 kilometres every day to just reach school, where he has no means of internet connectivity, or good teachers to guide him. Now, imagine another student from a metropolitan are, who has been having access to all the best schools and teachers in the region. Now both of these want to compete for civil services exam. Even if the student from the remote area manages to relocate to Delhi for preparation, will he be at the same level playing field as the urban student ? Most probably not. Even when both are preparing under same guidance in Delhi, the historic background of how both these students have been nurtured and grown academically is very different. The guy from the remote village will find it more challenging to absorb so much study material due to his previous lack of exposure to such advanced and deeper level of study. Even if this guy has the competency for Civil Services Exam, it has taken a lot more of his effort than his counterpart in urban metropolitan area to reach where he is, and so this guy needs to be compensated for the social and economic disadvantage this guy suffered as compared to the guy brought up in the metropolitan area.

Also, for certain jobs, understanding the local culture or dialect might be an important skill needed to discharge duty. For such jobs, residence within the state may be laid down as a condition by the Parliament. Note that this power to reserve certain jobs for the residents of the states lies with the Parliament only, and not the state legislatures.

Also, the government may reserve jobs related to religious institutions for members belonging to their religion only.

In a recent judgement in 2020, the Supreme Court held that Articles 16, 16(4) and 16 (4A) are enabling provisions and in no way mean that any individual or group is entitled to a Fundamental Right to reservation in public employment. The language of Article 16(4A) does not make it obligatory for the states to provide reservation for the SCs or STs and it is for the state Government to decide whether reservations are required in the matter of appointment and promotions to public posts.

 

RESERVATIONS AND CREAMY LAYER IN MATTERS OF EMPLOYMENT

The Supreme Court has held that economic criteria could not be the sole basis for reservation, whereas the caste could be a basis for reservation. Article 16(4) makes it clear that the government does not require any survey or quantifiable data to make an opinion on reservation in matters of public employment. As such, it is at the discretion of the government whether to provide reservation in the matters of employment and if yes, then to what extent, subject to the maximum permissible limit by the Constitution.

CHAMPAKAM DORAIRAJAN vs STATE OF MADRAS (1951) is a landmark decision of the Supreme Court of India. This judgement led to the First Amendment of the Constitution of India. It was the first major judgement regarding reservations in Republic of India. In its ruling, the Supreme Court upheld the Madras High Court judgement, which in turn had struck down the caste based reservations provided by the government in jobs and educational institutions.

The MANDAL COMMISSION was set up in 1979 under Article 340 of the Constitution, with a mandate to identify the socially or educationally backwards. It laid down 11 indicators or criteria for determining social and economic backwardness. In light of this report, the government provided 27 percent reservation in central government jobs for Other Backward Classes (OBCs) in 1990. This was challenged in the Supreme Court by several writ petitions. 

The famous INDRA SAWHNEY vs UNION OF INDIA (1992) case made some landmark judgements in this regards, which are enumerated as below –

  1. The court ruled that the government may reserve certain jobs for backward classes who in their opinion are not adequately represented in services under the government. This implied that the government could provide reservations to backward castes others than SCs and STs as well. However, the state governments can decide which classes/castes in their state are backward.
  2. It also introduced the concept of ‘Creamy Layer’ for the first time for OBCs, referring to those members of a backward class who are highly advanced socially as well as economically and educationally. It held that the sons and daughters of Group A/Class I Officers of All India Central and State Services (direct recruits), Group B/Class II Officers of Central and State Services (direct recruits), employees of Public Sector Undertakings etc. and armed forces fall within the creamy layer. It held that that economic criterion could also be adopted as a measure of social advancement in order to identify members of a creamy layer in a class or a group. The court ruled that such Creamy Layer must be excluded from reservations, otherwise it would usurp all the benefits of reservations meant for the backward class, without allowing benefits to reach the truly backward members of that class. Those from scheduled castes (SCs) and in scheduled tribes (STs) were exempt from this classification, and would always receive the benefits of reservation regardless of family income. The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bags all the reservation benefits to themselves, leaving the rest of their class as backward as they always were.
  3. It provided that, the provision for reservation are to be read along with Article 335, which states that the claims of the members of the backward classes shall be taken into consideration for appointment to services under the government, only as far as may be consistent with the maintenance of the administrative efficiency. Hence, Article 335 imposes restrictions on the powers of the government, under Article 16, to reserve jobs for members of the backward classes.
  4. It also provided a limit of 50 percent on reservations for backward classes in government jobs.
  5. It held there would be reservation only in initial appointments and not promotions in government jobs.

However, the government came up with following two articles to overrule this judgement of the court.

  1. ARTICLE 16(4A) – It was added through 77th Constitutional Amendment Act (1995) to enable the government to provide reservations to a SC/ST in matters of promotion, as long as the government believes that the SCs/STs are not adequately represented in government services.
  2. ARTICLE 16(4B) – It was added through 81st Constitutional Amendment Act (2000) to enable the government to carry forward vacancies of previous years and to fill such vacancies in later years without the 50 percent ceiling that is otherwise applicable on reservations.

Maharashtra is one of the few states that are an exception to this. With the addition of 12-13 percent Maratha quota, the total reservation in the state is 64-65 percent. The Bombay High Court has upheld the additional reservation based on the quantifiable data data presented by the Maharashtra State Backward Class Commission.

 

EXTENSION OF CREAMY LAYER TO SCs/STs, AND RESERVATIONS IN MATTERS OF PROMOTIONS

In NAGRAJ CASE (2006),  the Supreme Court held that that the creamy layer of SCs and STs must be kept out from enjoying the benefits of the quotas on jobs and admissions. It also provided that the government cannot introduce quota in promotion for its SC/ST employees unless it proves through quantifiable data that the particular community was backward, inadequately represented and providing reservation in promotion would not affect the overall efficiency of public administration.

In JARNAIL SINGH CASE (2018), the Supreme Court upheld the 2006 verdict’s reasoning that the creamy layer principle was based on the right to equality. The court held that quota benefits should go to the weakest of the weak and not be snatched away by members of the same class who were in the top creamy layer. The Supreme Court and the High Courts would be well within their jurisdiction to exclude creamy layer from getting reservations, rejecting the central government’s submissions that only the Parliament can exclude or include people from SC/ST lists. However, the court set aside the requirement to collect quantifiable data that was stipulated by its 2006 verdict. 

Hence, the current position is –

  1. the creamy layer among SCs/STs/OBCs is excluded for reservation benefits in admissions as well as employment.
  2. the government can provide reservation in matters of promotion to SCs/STs, if it wants to, without the need of any quantifiable data. 

 

RESERVATION WITHIN RESERVATION

A five-judge Bench of the Supreme Court has recently held that states can sub-classify Scheduled Castes and Scheduled Tribes in the Central List to provide preferential treatment to the weakest of the weak. Preferential treatment to ensure even distribution of reservation benefits to the more backward is a facet of the right to equality. When reservation creates inequalities within the reserved castes itself, it is required to be taken care of by the state by making sub-classification so that the reservation benefits do not benefit only a few hands and to ensure that equal justice is provided to all. The court observed that citizens within SCs/STs cannot be treated as socially and educationally backward forever, and those who have progressed must be excluded like the creamy layer. 

The Central List of Scheduled Castes and Tribes is notified by the President under Articles 341 and 342 of the Constitution. The consent of the Parliament is required to exclude or include castes in the List. In short, states cannot unilaterally add or pull out castes from the List. The Court held that sub-classifications within the Presidential/Central List does not amount to tinkering with it. No caste is excluded from the list. The states only give preference to weakest of the lot in a pragmatic manner based on statistical data.

 

OPTION TO OPT OUT OF RESERVATIONS

An often ignored aspect of the matter is the right of the creamy layer among the community to opt out of reservations. At present, an SC/ST candidate does not have the right to reject reservations. She is merely required to state whether she belongs to the SC or the ST category and a response in affirmation automatically puts her in the queue for reservations. It is also a punishable offence to withhold one’s caste status while seeking government employment. A simple administrative decision to allow SC/ST candidates to compete in the general category would help thousands to leave the space for the less privileged among them. A well-qualified and large SC/ST group having to compete as non-reserved candidates would corner a substantial number of open posts. At the same time, their less privileged cousins would fill the quota. Theoretically, SC/STs would end up garnering more posts than what current reservation limits allow them.

 

 

ARTICLE 17

 

ABOLITION OF UNTOUCHABILITY

Untouchability is abolished and its practice in any form is forbidden.

 

DESCRIPTION

The term untouchability has not been defined in the Constitution. In this regard, Mysore High Court held that ‘Untouchability’ refers to the social disabilities imposed on certain classes of persons by reason of their birth in certain castes. 

The government passed Untouchability Act (1955), which was subsequently amended in 1976, and renamed as Protection of Civil Rights Act, 1955. The act declares the following acts as offences –

  1. preventing any person from entering any place of public worship (Remember, Sabarimala in Kerala where the Supreme Court has ruled that women can’t be forbidden from entering the temple).
  2. justifying untouchability on traditional, religious, philosophical or other grounds.
  3. denying access to a person to any shop, or hotel, or public place.
  4. insulting a person from backward class.

A person convicted of the offence of untouchability is disqualified for election to the Parliament as well the state legislature, for a period of six years from the date of serving the penalty/punishment for conviction.

The right under Article 17 is available not just against the actions of the State but also the individuals.

To ensure dignity of life for backward classes, the government has also passed ‘Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (1989), and Prohibition of Employment as Manual Scavengers and their Rehabilitation Act (2013).

 

 

ARTICLE 18

 

ABOLITION OF TITLES

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

No citizen of India shall accept any title from any foreign State.

No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President, any title from any foreign State.

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. 

 

DESCRIPTION

The prohibitions under this article operate only for the State. The State cannot confer honorary titles. It does not prohibit other institutions such as Universities, to confer titles or honours. However, the government is not prohibited from awarding military or academic distinctions, that could be used as titles. Also the State is not prohibited from awarding decorations for social services or distinguished contributions to India in the form of Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri, which cannot be used as titles.

 

 

RIGHT TO FREEDOM (ARTICLES 19 – 22)

 

 

ARTICLE 19

 

THE SIX FREEDOMS

  1. All citizens shall have the,
    1. right to freedom of speech and expression.
    2. right to assemble peacefully and without arms.
    3. right to form associations or unions or cooperative societies.
    4. right to move freely throughout the territory of India.
    5. right to reside and settle in any part of the territory of India.
    6. right to acquire, hold and dispose property (omitted by the 44th Constitutional Amendment Act 1978).
    7. right to practice any profession, or to carry on any occupation, trade or business.
  2. Nothing in this article shall prevent the State from making laws,
    1. imposing reasonable restrictions on the exercise of the rights conferred under this article, in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, the public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
    2. imposing reasonable restrictions on the exercise of the rights conferred under this article in the interest of the general public or for the protection of the interests of any Scheduled Tribe.
    3. relating to the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business.
    4. relating to the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens.

 

DESCRIPTION

Absolute individual rights cannot be guaranteed by any modern State. Therefore, each of the above freedoms is subject to reasonable restrictions, which are necessary in the larger interest of the nation. It is important to note that liberty of one must not offend the liberty of others.  The six rights are protected only against the actions of the State and not those of private individuals. Also, these rights are available only to the citizens of India and not to foreign nationals.

 

ARTICLE 19 (1) (a) – FREEDOM OF SPEECH AND EXPRESSION 

Everyone has the right to freedom of opinion and expression and the right includes freedom to hold opinions without interference, and to seek and receive, and impart information and ideas, through any media and regardless of frontiers” –  Universal Declaration Of Human Rights (1948).

Freedom of speech and expression is considered as the mother of all liberties. It refers to the right to voice one’s opinion, the right to seek information and ideas, the right to receive information and the right to impart information without any hindrance, and especially without the fear of punishment.  The fundamental right to freedom of speech and expression is hence regarded as one of the most basic elements of a healthy democracy since it allows its citizens to participate fully and effectively in the social and political process of the country. In the Preamble to the Constitution of India, the people of India declared their solemn resolve to secure to all its citizen liberty of thought and expression. The Constitution affirms this right to freedom of speech and expression through Article 19(a) and the Indian State is under an obligation to create conditions in which all the citizens can effectively and efficiently enjoy such rights needed to participate effectively in the democracy. 

The Supreme Court has ruled that the freedom of speech and expression includes all the following:

  1. Freedom of press.
  2. Freedom of commercial advertisements.
  3. Freedom of silence.
  4. Right to express and propagate one’s views as well as views of others, not just within the territory of India but also beyond national boundaries.
  5. Right to protest.
  6. Right to information from public agencies.
  7. Right to criticise.
  8. Right to telecast i.e. the government has no monopoly on electronic media.
  9. Right against imposition of pre-censorship on news.

The constitution of India does not specifically mention the freedom of press. However, the Supreme Court in ROMESH THAPPAR vs STATE OF MADRAS (1950) observed that freedom of press is implied from the Article 19(1)(a) of the Constitution. Thus the press is subject to the restrictions that are provided under the Article 19 (2) of the Constitution. In the case of INDIAN EXPRESS vs UNION OF INDIA (1985), the court held that it is the duty of courts to uphold the freedom of press, and invalidate all laws and administrative actions that abridge that freedom.

The Supreme Court in UNION OF INDIA vs ASSOCIATION OF DEMOCRATIC REFORMS and PEOPLE’S UNION FOR CIVIL LIBERTIES has held that the Fundamental Right of citizens, under Article 19 (1) (a), includes citizens’ right to know the assets and liabilities of candidates contesting elections to Parliament or to state legislatures, thereby seeking to hold positions of responsibility in government. It also held that judges of the Supreme Court also need to declare their assets and liabilities, although such information would not be available to the citizens under the ‘Right To Information’ unless greater public interest is involved in such a request for information.

However, the Right to Freedom of Speech and Expression under Article 19 is not absolute and subjected to certain reasonable restrictions. Thus it prohibits any form of speech and expression which goes against the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, the public order, decency or morality or amounts to contempt of court, defamation or incitement to an offence. There is restriction on the freedom of speech and expression, in such services, where such speech or expression could obstruct the efficient functioning of such services. Also, there are certain provisions of Indian Penal Code, which restrict the Freedom of Speech and Expression under Article 19. Some of these are –

  1. Section 124 – criminalizes sedition against the government established by law.
  2. Section 153 – criminalizes provoking with an intent to cause riots.
  3. Section 153A – criminalizes promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.
  4. Section 292 – criminalizes obscenity.
  5. Section 295A – criminalizes deliberate and malicious acts intended to outrage religious feelings of any class of citizens.  
  6. Section 298 – criminalizes uttering any word or making any sound with “the deliberate intention of wounding the religious feelings of any person.
  7. Section 499/500 – criminalize defamation in terms so broad anyone can claim to be aggrieved by something said or written about them.

 

INCREASING MISUSE OF RESTRICTIONS ON FREEDOM OF SPEECH AND EXPRESSION

Charges of sedition have recently multiplied in India as a way to curb free speech and to intimidate government critics. Sedition is a non-bailable offence and maximum punishment is jail for life. Anyone charged under this law can’t get a government job. The charge of defamation is often used to silence free speech. The abusers of this charge includes powerful Indian corporations, which do not hesitate to sue authors, journalists, or activists for defamation, backed up with claims for damages that no author, publishing house, newspaper, or nonprofit group can afford to pay. In addition to the threat of colossal punitive damages, filing a defamation suit against someone is a sure way to tie the person up with legal fees and court proceedings, potentially for years. India’s media has become increasingly concentrated in the hands of powerful, family or political party owned, corporations. High-profile journalists whose views do not toe the lines of such corporations or parties have been pushed out or forced to quit their jobs. Self-censorship by journalists is a growing problem. Those who do speak out regularly face harassment and threats. REPORTERS WITHOUT BORDERS ranked India at 142nd place out of 180 countries in its 2020 World Press Freedom Index.

 

FREEDOM OF SPEECH VS CONTEMPT OF COURT     

Section 2(c) of the Contempt of Courts Act, 1971 defines criminal contempt as the publication of any matter or the doing of any other act which

  • scandalises or lowers the authority of any court.
  • prejudices or interferes with the due course of any judicial proceeding.
  • obstructs the administration of justice.

The reason why the concept of contempt exists is to insulate the institution from unfair attacks and prevent a sudden fall in the judiciary’s reputation in the public eye. The Supreme Court has held that freedom of speech and expression guaranteed under Article 19 (1) of the Constitution of India is subject to reasonable restrictions, and contempt of court is one such reasonable restriction. Does this mean that one can never voice any criticism of the judiciary, under our freedom of speech and expression guaranteed under Article 19 (1) of the Constitution of India ? The answer is ‘no’, but there is a thin line separating criticism and contempt. 

A statement would not constitute criminal contempt if it is only against the judge in his or her individual capacity and not in discharge of his or her judicial function. An attack on a judge in his or her official capacity denigrates the judiciary as a whole and the law of criminal contempt would come down upon such a person unless it is a fair critique of a judgment. Supreme Court in 1978 had itself held that the judiciary cannot be immune from fair criticism, and contempt action is to be used only when an obvious misstatement with malicious intent seeks to bring down public confidence in the courts or seeks to influence the courts. However, what constitutes ‘fair criticism’ is subjective. 

In contemporary times, it is more important that courts are seen to be concerned about accountability, that allegations are scotched by impartial probes rather than threats of contempt action, and processes are transparent. To hold that every criticism of judiciary shakes its very foundations and therefore needs to be dealt with an iron hand, appears to be a disproportionate response which could, in fact, diminish the reputation of our judiciary. An independent judiciary does not mean one above scrutiny and criticism. 

                       

SUPREME COURT STRIKES DOWN SECTION 66A OF INFORMATION TECHNOLOGY ACT, 2000

The Supreme Court recently struck down the controversial Section 66A of the Information Technology Act, 2000 on grounds of contravention with article 19(1) of the Constitution of India. Section 66A provided police the power to arrest a person for posting offensive content online.  It also provided upto three-year jail term for such an offence. The court observed that the provisions of the section 66A of the IT Act do not define what constitutes ‘offensive’ and hence the act is most likely to be used by authorities to silence any sort of public criticism.

 

ARTICLE 19 (1) (b) – FREEDOM TO ASSEMBLE PEACEFULLY AND WITHOUT ARMS

This freedom can be exercised only on public land. Thus, you cannot enter into private premises even for a peaceful assembly without the permission of its owner, and claim it to be your right to assemble under Article 19 (1) (b). 

The State can impose reasonable restrictions on the exercise of right of assembly on following grounds:

  1. Maintenance of sovereignty and integrity of India.
  2. Maintenance of public order, including traffic in the area concerned.

IS THE RIGHT TO PROTEST A FUNDAMENTAL RIGHT ?

Supreme Court has upheld the right to peaceful protest as a Constitutional right, and the right to assemble and demonstrate by holding ‘dharna’ as basic feature of an effective democratic system. It also held that it is the obligation of every protestor to obey every lawful order. However, the governments often resort to arbitrarily citing law and order problem for denying such right to protest even peacefully. For e.g. in 2011, the government cited the limited capacity of Ramleela ground to withdraw the permission to protests for anti corruption movement.

A protestor who organizes a peaceful protest within his constitutional rights is equally entitled not to accept an illegal order denying his right to protest. However, it is ambiguous whether such protestors must follow such orders, which are arbitrary or illegal, or must defy such orders. Such situations often lead to clash between the authorities and the protestors. Therefore, it is very important that the Supreme Court makes the situation clear in this regard. There must be provision to legally sue executive authorities for taking such arbitrary or illegal orders while exercising their executive powers.

Recently, United Nations Human Rights Committee (UNHRC) has reaffirmed that protesting peacefully, online or in person, is a fundamental human right.

 

ARTICLE 19 (1) (c) – FREEDOM TO FORM ASSOCIATIONS OR UNIONS OR COOPERATIVE SOCIETIES

The freedom to form associations or unions includes the right to form political parties, companies, partnership firms, societies, clubs, trade unions and any body of persons. In Damyanti vs Union of India case, the Supreme Court ruled that the persons forming the association have also the right to continue to be associated with only those whom they voluntarily admit in the association. Any law by which members are introduced in the voluntary association without any option given to the existing members to keep the new ones out, or any law which takes away the membership of those who have voluntarily joined it, will be a law violating the right to form association, and hence shall be null and void.

It is also necessary that the formation and continuation of such associations do not act as a barrier or an obstacle in the progress and development of the country. There can be no association or union for an illegal or conspiratorial purpose. Besides this, the Supreme Court has held that even the civilian members (Doctors, Engineers, Cooks etc) of the Indian Armed Forces cannot form associations or unions. It contented that even though they are regulated by Civil Service Rules, yet they are integral to the Armed Forces. Similarly, teachers need to take prior permission to engage in political activities. This is because teachers are not mere citizens of India, they are entrusted with enlightening students through their impartial and objective knowledge, and therefore, any allegiance to a particular political party or group may be detrimental to their cause.

 

ARTICLE 19 (1) (d/e) -FREEDOM TO MOVE, RESIDE AND SETTLE  IN ANY PART WITHIN THE TERRITORY OF INDIA

These freedoms entitle every citizen to move, reside or settle in any part throughout the territory of the country. Hence, they only deals with internal movement (the right to move within the country) and not external movement (the right to move in and out of the country). The only grounds for reasonable restriction on these freedoms are –

  1. Maintenance of public order and health – The government may impose restrictions on movement to or from certain areas if such a movement may lead to disruption of public order or if such a movement may threaten public life. Thus, the government may restrict movement to a particular area threatened by terrorism, or landslides, or violent protests. Similarly, the government may restrict movement of a certain people to certain areas where they could incite violence and threaten peace as well as security in the region. The government may also restrict the movement of people affected with certain kind of diseases on ground of maintaining public health.
  2. Protection of the interests of the Scheduled Tribes – The government may impose restrictions on movement to tribal areas to protect the culture, language and customs of such tribes and to protect their resources from exploitation.

 

ARTICLE 19 (1) (g) – FREEDOM OF PROFESSION

Every citizen has the right to chose and profess any profession of his choice. The State cannot force citizens to chose or profess a particular profession. However, this right doesn’t confer upon citizens the freedom to conduct a profession, trade, business or occupation, that is immoral.

The State can however impose reasonable restrictions,

  1. by prescribing professional or technical qualifications, necessary for practising any profession, or carrying on any trade, business or occupation.
  2. by requiring licensing to practise any profession, or to carry out trade, business or occupation.
  3. by reserving for itself any profession, trade, business or occupation to the partial or complete exclusion of the citizens.

 

 

ARTICLE 20

 

PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES

  1. No person shall be convicted for any offence except for the violation of a law in force at the time of commission of the act nor be subjected to a penalty greater than that prescribed by the law in force at the time of commission of the act.
  2. No person shall be prosecuted and punished for the same offence more than once (Protection from Double Jeopardy)
  3. No person accused of any offence shall be compelled to be a witness against himself.

 

DESCRIPTION

This right is available to both citizens as well as foreign nationals.

Clause (1) of Article 20 prohibits ‘ex-post-facto’ law. An ex-post-facto law is also known as retrospective law. A retrospective law is one which affects not only the acts done after the law comes into effect but also the acts committed prior to the coming of law in effect. On the other hand, a prospective law affects only the acts done after the law comes into the force. Though the Parliament can enact both prospective as well as retrospective laws, it is prohibited by Article 20 to enact retrospective laws in criminal justice. However, it shall be free to enact retrospective laws in civil cases. Hence, while you may be required by a new law to deposit additional property tax calculated retrospectively at an enhanced rate, you will not be convicted of hitting a stray dog with your car if that was not a criminal offence at the time of such an accident.

Clause (2) of Article 20 prohibits Double Jeopardy which means that a person cannot be prosecuted and punished for the same offence more than once. However, Article 20 does not give a person immunity from proceedings other than the judicial proceedings. Hence, the protection against Double Jeopardy is available to a person only in proceedings before a court of law or a judicial tribunal, and not before departmental or administrative authorities since they are not of judicial nature. Hence, a government official, who has already been subjected to departmental proceedings in a case of corruption, may yet be punished again for the same offence, by a court of law, and vice-versa. However, once punished by a court of law, he cannot be prosecuted and punished again by the court of law for the same offence again. Also it is to be noted that a person who has been prosecuted by lower judiciary but has been acquitted and not punished, may again be prosecuted in higher judiciary by appeal against the decision of the lower judiciary. Also, Article 20 does not give a person immunity from judicial proceedings for a different offence of the same nature. For e.g. while a person might have served punishment of 14 years imprisonment for charges of a murder, he can’t claim relief for having committed another murder, on ground of Article 20, saying that he has already been prosecuted and punished for the charges of murder. This new murder would invite separate proceedings and punishment for the offence.

Clause (3) of Article 20 prohibits self-incrimination i.e. the accused can never be compelled to be a witness against himself. The scope of this immunity has, prima facie (based on the first impression), been widened by the Supreme Court by interpreting the word ‘witness’ as inclusive of both oral and documentary evidence. Hence, no person can be compelled to furnish any kind of evidence, which is reasonably likely to support a prosecution against him. However, this ‘Right to Silence’ is not called upon in case any object or document is searched and seized from the possession of the accused. For the same reason, the clause does not bar the medical examination of the accused or the obtaining of thumb-impression or specimen signature from him. Also, the protection against self-incrimination under Article 20 is available only in criminal cases, and not civil cases. Hence, a person cannot chose to stay silent in some general departmental enquiry, on the ground that his statement may later be used to convict him. 

 

 

ARTICLE 21

 

PROTECTION OF LIFE AND PERSONAL LIBERTY

No person shall be deprived of his life or personal liberty except according to a procedure established by law.

 

DESCRIPTION

This right is available to both citizens as well as foreign nationals.

The right to personal liberty means that no member of the executive can interfere with the personal liberty of an individual, unless such action of the executive is supported by some provision of law. Two judgments of Supreme Court have been very important.

AK GOPALAN vs STATE OF MADRAS (1950)

The Supreme Court held that the protection under Article 21 is available only against arbitrary executive action and not against arbitrary legislative action. Hence, the personal liberty of an individual could be taken away by competent legislation. 

MENAKA vs UNION OF INDIA (1978)

The Supreme Court overruled its judgement in Gopalan Case, and held that the personal liberty of an individual could be taken away by competent legislation, provided that such a legislation must prescribe a procedure for such deprivation and must not be arbitrary, unfair or unreasonable. Any law to deprive a person of his liberty shall be invalid if it violates the principles of natural justice.

The Supreme Court has held that the right to life, includes all the following rights.

  1. Right to live with human dignity.
  2. Right against inhuman treatment.
  3. Right to clean environment including pollution free water and air, and protection against hazardous industries.
  4. Right against noise pollution.
  5. Right to livelihood.
  6. Right to food, health, education and shelter.
  7. Right to information from public authorities.
  8. Right to privacy.
  9. Right to emergency medical care.
  10. Right to timely medical treatment in government hospitals.
  11. Right of women to be treated with dignity and decency.
  12. Right against sexual harassment at workplace.
  13. Right to free legal aid and fair trial.
  14. Right to speedy trial.

All above rights guaranteed under right to life, are subject to reasonable restrictions. Anyone who is arbitrarily deprived of above rights, on unreasonable grounds, or without a just and fair procedure established by the law, can challenge such deprivation as being against Art. 21 and get it declared void.

 

SUICIDE VS EUTHANASIA

It is to be noted that the right to life under Article 21, does not guarantee the right to die. Hence, attempt to suicide is considered as a criminal offence in India. However, the Supreme Court has ruled a distinction between an attempt to suicide and euthanasia. While the former is an unnatural termination of life, latter is an acceleration of termination of life that has already begun in terminally ill person. Thus, passive euthanasia, i.e. holding back treatment, to allow a person to die with dignity, is allowed in India under Article 21. However, active euthanasia (doctor assisted voluntary killing of terminally ill patient) is not allowed under Article 21 in India.

 

RECENT SUPREME COURT JUDGEMENTS UNDER ARTICLE 21

The Supreme Court recently stuck down section 377 of the Indian Penal Code. By doing say, it has decriminalised gay sex holding that consensual sex between two adults was covered under the right to privacy. However, it still holds that any kind of sexual activity with animals or children remains  to be a penal offence. 

 

ARTICLE 21A

FREE AND COMPULSORY EDUCATION TO CHILDREN UNDER THAN AGE OF FOURTEEN YEARS

The 86th Constitutional Amendment Act, 2002 inserted Article 21-A in the Constitution of India to provide free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such a manner as the State may, by law, determine. The Right of Children to Free and Compulsory Education (RTE) Act, 2009, which represents the consequential legislation envisaged under Article 21-A, means that every child has a right to full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards. 

The RTE Act (and not Article 21-A) lays down the norms and standards relating inter alia to Student Teacher Ratios (PTRs), buildings and infrastructure, school-working days, teacher-working hours. It provides for rational deployment of teachers by ensuring that the specified pupil teacher ratio is maintained for each school, rather than just as an average for the State or District or Block, thus ensuring that there is no urban-rural imbalance in teacher postings. It also provides for prohibition of deployment of teachers for non-educational work, other than decennial census, elections to local authority, state legislatures and Parliament, and disaster relief.

86th Constitutional Amendment Act, 2002 also inserted Fundamental Duty under Article 51-K, which makes it a duty of every parent to ensure proper education for their children between the age of 6-14 years.

 

 

ARTICLE 22

 

PROTECTION AGAINST ARBITRARY ARREST AND DETENTION

  1. No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
  2. Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
  3. Nothing in clauses (1) and (2) shall apply to
    1. any person who for the time being is an enemy alien.
    2. any person who is arrested or detained under any law providing for preventive detention.
  4. No law providing for preventive detention shall authorise the detention of a person for a period longer than three months unless
    1. an Advisory Board, consisting of persons qualified to be appointed as Judges of High Court, reports that such a detention is needed.
    2. such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).
  5. When any person is detained under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
  6. Nothing in clause ( 5 ) shall require the authority to disclose such facts which the authority considers to be against the public interest to disclose.
  7. Parliament may by law prescribe,
    1. the circumstances under which a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board.
    2. the maximum period for which any person may be detained under any law providing for preventive detention.
    3. the procedure to be followed by the Advisory Board in an enquiry.

 

DESCRIPTION

The Constitution of India provides for protection against arbitrary arrest and detention, except if such an arrest is made under the laws providing for preventive detention. A person could be detained under preventive detention if the government is satisfied, on grounds of his past actions and not his potential, that such a person could pose a threat to the peace, stability or security of the State. For e.g. a person can have potential to threaten the peace, stability or security of the State. But, that does not mean that the State may arrest such a person on account of just his potential. Otherwise this would lead to arbitrary arrests and detentions. However, it is possible that a person who has in the past disrupted the peace, stability or security of the State, could do so again. Hence, in such a case, the person could be arrested under the law providing for Preventive Detention. The 44th Constitutional Amendment Act (1978) amended Article 22 and reduced the maximum period for which a person may be detained without obtaining permission from the advisory board from three to two months. Also, the Supreme Court has ruled that Article 22 does not provide protection against arrest under the orders of the court or arrest in a civil case (such as for non payment of the income tax). 

It is a matter of fact that no other democratic country in the world has preventive detention included as an integral part of the Constitution as has been done in India. Preventive detention refers to detention of a person without trial. The purpose of preventive detention is to prevent a person from committing a crime. Preventive detention is different from punitive detention. Punitive detention refers to detention of a person to serve the punishment after the person has been convicted for the crime. 

The Parliament, along with state legislatures, is authorized to make laws providing for preventive detention for reasons connected with the security of the state, maintenance of public order or maintenance of supplies and services essential to a community. A state may abolish preventive detention law imposed over it by the Parliament on grounds that come under the responsibility of the state viz. security of the state, maintenance of public order, maintenance of essential supplies and services. However, Parliament alone is authorized to make laws providing for preventive detention for reasons connected with defence, external affairs or the security of India.

 

INDIA’S PREVENTIVE DETENTION ACTS

Preventive detention had been the colonial regime’s weapon of choice to muzzle political dissent, and it was introduced in a country, racked by the violence of Partition, where maintaining public order was the primary concern of the framers of our Constitution.  Therefore, Article 22 was adopted on the assurance that it was hedged in with procedural safeguards, and would never be abused by Parliament or by the Executive. However, in recent times, its existence in a democratic country like India has often been a matter of debate. From the time the Constitution came into force, governments at the state and the centre, of every stripe, colour, and ideology, have invoked preventive detention to lock up inconvenient opponents by slapping vague accusations on them, and without the necessity of having to prove the charges filed on them in any trial. These laws place the onus of proving innocence on the accused which is a breach of natural justice. The abuse of preventive detention laws has not been tackled by the courts also, which have consistently taken the side of the State.  Under our Constitution, even though preventive detention is authorised, laws that provide for it must still meet the tests of reasonableness and proportionality. The courts, however, have failed to scrutinise preventive detention laws with any degree of rigour, and to check whether they are consistent with individual liberty and freedom. Secondly, under preventive detention laws, any challenge to a detention order does not, in the first instance, go before a court, but before an ‘advisory board’. As the record shows, however, advisory boards are reluctant to act against the State and set aside orders of detention, primarily on the ground that it is the Executive that is best positioned to assess threats to public order. 

Armed Forces Special Power Act (AFSPA) was enacted in 1958 to address separatist movements in Nagaland. It empowered the military to act alongside the police in designated disturbed areas, while giving soldiers greater power to use force against civilians than the police are allowed. In 1972, it was extended to all seven states of the North East of India. Between 1977 to 1983, an iteration of AFSPA was in force in Punjab and in 1990, the Act was introduced in Jammu and Kashmir. It provides institutional impunity (exemption from punishment) for human rights violations committed by state forces. In the process, it has played havoc in the lives of generations of civilians in many part of the country. On the other hand, the Armed Forces justify the act on grounds of maintaining peace and security in the region, especially when terrorist organisations have been operating in the region with the support of certain local people.

The Parliament enacted Unlawful Activities Prevention Act (UAPA) in 1967, which is an Indian law aimed at effective prevention of unlawful activities in India. Its main objective was to make powers available for dealing with activities directed against the integrity and sovereignty of India. Accused can be held in custody for six months even without filing a charge sheet. In comparison, those accused of murder can get bail within three months of arrest if the entirety of the case is not revealed to them. 

The state of Jammu and Kashmir enacted Public Safety Act in 1978 providing for preventive detention on grounds of maintaining peace and order in the state. Within four weeks of passing the detention order, the government has to refer the case to an Advisory Board. This Advisory Board will have to give its recommendations within eight weeks of the order. If the Board thinks that there is cause for preventive detention, the government can hold the person up to two years. The detaining authority need not even inform the detained individual as to the reason for the action, if it decides that it goes against public interest.

The Parliament enacted National Security Act (NSA) in 1980 which empowers the central and state governments to detain a person with a view to prevent him/her from acting in any manner prejudicial to the security of the state, or maintenance of public order, or maintenance of supplies/services essential to the community. Under this act, a person can be detained without a charge for up to a year. The order can also be made by the District Magistrate or a Commissioner of Police under their respective jurisdictions, but the detention should be reported to the state Government along with the grounds on which the order has been made. No such order shall remain in force for more than 12 days unless approved by the state Government. 

The National Investigation Agency (NIA) Bill was passed in 2008, less than a month after the Mumbai terror attacks. The NIA Act sanctioned the formation of a central agency, the National Investigation Agency, to probe terror cases in any part of the country. It authorises setting up of Special Courts to prosecute such cases, outside the purview of regular courts. Under NIA proceedings, the identities of witnesses can be kept secret, which prohibits cross-examination on behalf of defendants. This could make the trial patently unfair.

 

CONCLUSION

Keeping a person in jail without charge and without trial is a serious violation of the rule of law even if the Constitution sanctions it in principle. Its use must be limited to exceptional cases, and scrutinised carefully by the advisory boards and the courts. Courts, on their part, should not be hesitant in setting aside preventive detention orders, unless the State can make out a compelling case. That would be truly in keeping with the spirit of the Constitution. 

 

 

RIGHT AGAINST EXPLOITATION (ARTICLES 23 – 24)

 

 

ARTICLE 23

 

RIGHT AGAINST EXPLOITATION

  1. 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.
  2. Nothing in this article shall prevent the State from imposing compulsory service for public purposes. In imposing such service the State shall not make any discrimination on the ground of race, religion, caste or class.

 

DESCRIPTION

The expression ‘traffic in human beings’ include:

  1. selling and buying for men, women or children like goods.
  2. immoral traffic in women and children, including that for beggary and prostitution.
  3. devadasis (a practice in South India where certain women are forced to worship and serve a deity or a temple for the rest of their life).
  4. slavery.

To make these acts punishable, the Parliament passed Immoral Traffic Prevention Act in 1956.

The term ‘begar’ defined here is different from ‘beggar’ and refers to compulsory work without remuneration. The term ‘begar’ comes from a practice during Zamindari System where the local Zamindars used to force their tenants to render services without any payment. Hence, while ‘begary’ is prohibited under Article 23, voluntary ‘beggary’ is not.

The term ‘forced labour’ refers to compelling a person to work against his will, by using not just physical or legal force but also exploiting his economic circumstances to make him work for less than the minimum prescribed wage. In this regard, the Parliament passed Minimum Wage Act (1948), Contract Labour Act (1970) and Equal Remuneration Act (1976). 

What is prohibited by Clause (1) of Article 23 is the act of compelling someone to render gratuitous (free of charge) service, where the person was lawfully entitled either not to work or to receive remuneration for it. Article 23, therefore, does not prohibit  forced labour as a punishment for a criminal offence.

 

 

ARTICLE 24

 

PROHIBITION OF EMPLOYMENT OF CHILDREN IN FACTORIES ETC.

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.

 

DESCRIPTION

The Child Labour Prohibition and Regulation Act 1986 is the most important law in this direction. The original law aimed to regulate the hours and the working conditions of child workers and to prohibit child workers from being employed in hazardous industries. The 2016 amendment to the law completely prohibited the employment of children below 14 years of age. It also prohibited the employment of adolescents in the age group of 14 to 18 years in hazardous occupations and processes while regulating their working conditions where they are not prohibited. The government also came up with National Policy on Child Labour (1987), with a focus more on rehabilitation of children working in hazardous occupations and processes, rather than on prevention.

Since poverty is the root cause of this problem, and enforcement alone cannot help solve it, Government has been laying a lot of emphasis on the rehabilitation of these children and on improving the economic conditions of their families. It is working to ensure that children remain in economically stable family homes and get the opportunity to go to school and be educated. In this regard, the Right of Children, between age group 6-14 years, to Free and Compulsory Education was provided in 2009 by inserting Article 21A in the Constitution of India.

 

DEMOGRAPHY OF CHILD LABOUR IN INDIA

Child labour is not uniform. It takes many forms depending upon the type of work that children are made to do, the age and sex of the child and whether they work independently or with families. Work is often gender-specific, with girls performing more domestic and home-based work, while boys are more often employed in wage labour. Due to this complex nature of child labour, there is no one strategy that can be used to eliminate it. Child labour is now more invisible because the location of the work has changed from the more formal setting of factories, to business owners’ homes. There has also been an increasing involvement of children in the home-based and informal sectors. According to Census 2011, there were more than 10 million economically active children in the age group of 6 to 14 years. Out of this, 8 million children were working in rural areas, while 2 million were working in urban areas. From 2001-2011, although the number of children working in rural areas was reduced from 11 million to 8 million, the number of children working in urban areas increased from 1.3 million to 2 million. According to 2005 Government of India NSSO (National Sample Survey Organisation), child labour incidence rates in India is highest among Muslim Indians, about 40 percent higher than Hindu Indians. On the basis of castes and geography, tribal populations had the highest incidents of child labour.

 

 

RIGHT TO FREEDOM OF RELIGION (ARTICLES 25 – 28)

 

 

ARTICLE 25

 

FREEDOM OF CONSCIENCE AND FREE PROFESSION, PRACTICE AND PROPAGATION OF RELIGION

  1. Subject to public order, morality and health and to the other provisions of Part III of the Constitution, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
  2. Nothing in this article shall affect the operation of any existing law or prevent the State from making any law,
    1. regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.
    2. providing for social welfare and reform or throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I – The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II – In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

 

DESCRIPTION

This right is available not only to citizens but aliens also. Subject to the limitations, a person in India shall have the right not only to entertain any religious belief but also to practice the observances dictated by such belief, and to preach his views to others. The word secularism in India means that the State shall be neutral to all religions, and does not propagate any particular religion as State religion. Also, it can’t be contended that if a person is a devout Hindu or devout Muslim, such a person ceases to be secular.  Secularism means equal respect for all religions, irrespective of whether one follows it or not.

However, the freedom of religion guaranteed under Article 25 does not impede State to intervene for strong social movements within religious and other communities, focused upon two principles:

  • individual freedom and choice within community spaces.
  • the right to social and political inclusion and participation.

The courts have the right to determine whether a particular rite or observance is regarded as essential by the tenets of a particular religion, and to interfere if a particular practise goes against public health and morality, or contravenes any existing law. In doing so, the Supreme Court has kept to itself, the classification of religious practices as ‘Essential’ and ‘Non-Essential’. Only those practices would be considered as essential that are mentioned in the religious scriptures, and not the ones that evolve due to superstitions and faith. Therefore, the State, can intervene in religious matters which are classified as non-essential in nature. However,  it is a matter of debate that if judges could actually discern (comprehend) what the religious texts actually imply. This unfettered power conferred upon judiciary is a dangerous thing, since it is the sole discretion of the judge that can declare an age old religious practice to be non-essential overnight.

By  free propagation of religion, Article 25 implies that different religious communities can help other communities learn about their religion, thereby promoting understanding and peace. Therefore, it gives to each community, the right to spread tenets of their religion by advocacy or preaching but it would in no way include the right to convert others, especially though force, violence, allurements or fraud. Some religious groups have often misconstrued the word ‘propagate’ in Article 25 to justify religious conversions. If such a right to convert was implied under the Article, it would lead to breach of peace as all the religious communities would be carrying on campaigns for conversions. Therefore, under Clause (2) of Article 25, the State is still constitutionally authorised to prohibit and penalise conversion, in order to maintain peace and harmony in the State. 

 

RECENT CASES WHERE THE COURTS HAVE INTERVENED IN RELIGIOUS PRACTICES

In the famous SHAYARA BANO CASE, the Supreme Court held the practice of Triple Talaq in Muslim Community as unconstitutional. In the regard, the government recently passed the MUSLIM WOMEN PROTECTION OF MARRIAGE RIGHTS BILL (2019). The bill makes declaration of triple talaq as a cognizable offence attracting upto three years of imprisonment, along with a fine.

Similarly, the Supreme Court has lifted the ban on women entering the famous SABARIMALA TEMPLE in Kerala, by holding that devotion cannot be subjected to gender discrimination. 

Cracking of fireworks on Diwali and using loudspeakers for Azaan in the morning has also come under Supreme Court’s scrutiny. The court observed that the festival of Diwali is mainly associated with Pooja performed on the auspicious day and not with firecrackers. In no religious textbook, it is written that Diwali has to be celebrated by bursting crackers that create a lot of noise and air pollution. Clean air is a must for human survival and hence any religious activity that leads to severe deterioration of air quality could be regulated by the State under the provisions of Right to Life under Article 21. The court also observed that neither does any religion prescribe that prayers should be performed by disturbing the peace of others nor does any religion preach that prayers should be through voice amplifiers or beating of drums. Sleep is essential for human beings to maintain the delicate balance of health, necessary for their very existence and survival. Sleep is, therefore, a fundamental right, without which the existence of life would be in peril. To disturb sleep, therefore, would amount to torture, which is now even accepted as a violation of human right under the provisions of Right to Life under Article 21. The NOISE POLLUTION REGULATION AND CONTROL RULES (2000) under ENVIRONMENT PROTECTION ACT (1986) require that a loudspeaker or a public address system shall not be used except after obtaining written permission from the authority. However, the government may permit use of loudspeakers or public address systems during night hours (between 10.00 p.m. to 12.00 midnight) during any cultural or religious occasion of a limited duration not exceeding 15 days in all during a calendar year.

 

 

ARTICLE 26

 

FREEDOM TO MANAGE RELIGIOUS AFFAIRS

Subject to public order, morality and health, every religious denomination or any section thereof shall have the right,

  1. to establish and maintain institutions for religious and charitable purposes.
  2. to manage its own affairs in matters of religion.
  3. to own and acquire movable and immovable property.
  4. to administer such property in accordance with law.

 

DESCRIPTION

This freedom is available to only Citizens of India and not to aliens. Unlike Article 25 which protects religious rights of an individual, Article 26 protects collective rights of a religious community.

Like all other freedom, the freedom to establish or manage religious institutions, is also subject to reasonable restrictions on grounds of public order, morality and health. While deciding what public order is, if the court is given two options to choose from, it will choose the option which is for the greater good of the public. Therefore, if the presence of any religious institution is detrimental to the expansion of a runway for an international airport, the court can order removal of such religious institution. Similarly, the State has the power to audit the assets of the religious institutions, and can order demolition of such religious institutions which have been set up illegally. 

 

RECENT CASES WHERE THE COURTS HAVE INTERVENED IN MANAGEMENT OF RELIGIOUS INSTITUTIONS

The Supreme Court recently ordered judicial audit of all religious places and charitable institutions across India, asking district courts to examine complaints with regard to difficulties faced by the visitors, exploitative practices, deficiencies in the management, maintenance of hygiene, proper utilisation of offerings and protection of assets of these institutes.

 

 

ARTICLE 27

 

FREEDOM FROM TAXATION FOR PROMOTION OF A RELIGION

No person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination.

 

DESCRIPTION

The State is prohibited from collecting any tax or spending the proceeds of other taxes collected from individuals, for the promotion or maintenance of any particular religion or religious denomination. Nevertheless, the taxes can be used for the promotion or maintenance of all religions. The Article does not prohibit the State from levying fee on individuals visiting a particular religious institution to provide them some special service or to arrange for their safety or for meeting the expenses of administrative set up. As an exception, the Supreme Court has ruled that the expenditure from the State fund for the reconstruction of religious institution damaged during riots is allowed, notwithstanding the fact that such religious institution belongs to one particular religion.

 

 

ARTICLE 28

 

FREEDOM FROM ATTENDING RELIGIOUS INSTRUCTIONS

  1. No religion instruction shall be provided in any educational institution wholly maintained out of State funds.
  2. Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.
  3. No person attending any educational institution recognised by the State or receiving aid from the State shall be required to take part in any religious instruction that may be imparted in such an institution or to attend any religious worship that may be conducted in such an institution.

 

DESCRIPTION

Kindly pay attention to the underlined words in the original clause stated above. We see that Article 28 distinguishes between four types of educational institutions.

  1. Educational institutions wholly maintained by the State.
  2. Educational institutions administered by the State but established wholly by a particular religious community.
  3. Educational institutions recognised by the State.
  4. Educational institutions receiving aid from the State.

While in the first type of educational institutions, religious instruction is completely prohibited, in the second type it is allowed. Although religious instructions is allowed in some schools but it is not mandatory for students to attend those.

 

ISSUES WITH ARTICLE 28

Article 28 makes it possible for the State to provide aid to an educational institution imparting religious instructions. Why does the State need to give aid to any such institution which promotes a particular religion? Paradoxically, the provisions of this Article contradicts with the provisions of Article 25 which explicitly states that the State shall not promote any particular religion. A true secular education system would exist only when the State stops giving any kind of aid to such institutions which impart religious education or instruction, whether run by the majority or by the minority religious community.

Also, prayer is a religious practice and, in India, students in government schools are made to offer prayers in morning assembly, most of which are identified with Hindu prayers. This goes against Clause (1) of Article 28, which says that no religious instruction shall be provided in any educational institution wholly maintained out of State funds. Therefore, a petition challenging such prayers in morning assembly in government schools has been filed in the Supreme Court. However, these arguments against morning prayers in government schools seem to be coming due to inability to distinguish between religious and spiritual prayers. Most of the prayers in government schools are spiritual in nature, but just because they have been written by someone belonging to this community or the other, such misinterpretations have been coming up. It would be better if the inherent meanings of such prayers to promote universal peace and brotherhood are revered more than the religious origin of such prayers. If not, an alternative could be to switch to poems that inculcate more of the spirit of patriotism and brotherhood than that of spiritualism among children. 

 

 

CULTURAL AND EDUCATIONAL RIGHTS (ARTICLES 29 – 30)

 

 

ARTICLE 29

 

PROTECTION OF INTEREST OF MINORITIES

  1. Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
  2. No citizen shall be denied admission into any 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.

 

DESCRIPTION

Clause (1) of Article 29 gives protection to every section of citizens having distinct language, script or culture by guaranteeing them the right to conserve the same. It is to be noted that the word minority has not been used in this article. Moreover, the Supreme Court has held that the use of the word ‘Any section of the citizens’ implies majority community as well. As such, both the majority as well as the minority communities have right to conserve their language, script or culture (including religion). The court also held that the right to conserve the language also includes the right to protest for the protection of the language. Also, the political speeches or promises made for the conservation of the language of a section of people do not amount to inciting hatred among people, and as such do not come under corrupt electoral practice under Representation of People Act (1951).

Clause (2) of Article 29 relates to admission into educational institutions, which are maintained or aided by the State. No citizen shall be denied admission in such institutions on grounds only of religion, race, caste, language or any of them. Hence a school run by a majority or minority community, if it is aided by state funds, cannot refuse admission to children belonging to other communities, on grounds only of religion, race, caste or language. However, it does not stop schools from denying admission to someone on grounds of qualifications or indiscipline. It is to be noted that the educational institutions run by minority communities may reserve up to 50 percent of the seats for the members of their own communities even if these institutions are getting aid from the State. 

 

HOW IS ARTICLE 29 (2) DIFFERENT FROM ARTICLE 15 ?

Article 15 prohibits discrimination by the State, on grounds only of religion, race, caste, sex, place of birth and so on. However, there is a subtle difference between the two. Article 29 does not prohibit discrimination on grounds of sex or place of birth, while Article 15 does not prohibit discrimination on grounds of language. Hence, there is a kind of contradiction here. However, Article 29 (2) applies only in matters of educational institutions while Article 15 applies everywhere, except the educational institutions. Hence, a girl school might deny admission to a boy and vice versa, under the provisions of Article 29 (2), even when it violates the provisions of Article 15 which prohibits discrimination on the basis of sex. Similarly, under the provisions of Article 29 (2), a convent school imparting education in english language cannot deny admission to someone having hindi or some other regional language as his or her mother tongue. However, under the provisions of Article 15, a State may reserve some jobs for people proficient in a particular language.

 

 

ARTICLE 30

 

RIGHT OF MINORITIES TO ESTABLISH AND ADMINISTER EDUCATIONAL INSTITUTIONS

  1. All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
  2. The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

 

DESCRIPTION

The protection under Article 30 is available only to the minorities, either religious or linguistic, and not to any other section of citizens. However, what constitutes minority has not been defined in our Constitution, and has been left to the subjective interpretation of the Courts, which have ruled that the minorities should be determined only in relation to the particular legislation. In case of state legislation, these minorities have to be determined in relation to the population of the state, while in case of union legislation, these minorities have to be determined in relation to the population of the country as a whole. A linguistic minority for the purpose of Article 30 is one which must at least have a separate spoken language. It is not necessary that that language should also have a distinct script. It is not necessary that an institution run by religious minority should impart only religious education or that one run by the linguistic minority should teach that language only. If such minority educational institutions are not seeking aid from the State, they must be totally free from State control except in cases demanding natural justice and transparency. If they receive State aid, the State needs to exercise only the minimum regulations necessary to maintain standards and to provide some representation for non-minority students. 

 

 

ARTICLES 31, 31A, 31B AND 31C

 

 

ARTICLE 31 (REPEALED)

 

RIGHT TO PROPERTY

No person shall be deprived of his property save by authority of law.

 

DESCRIPTION

The Constitution originally provided for the right to property under Articles 19 and 31. Article 19 guaranteed to all citizens the right to acquire, hold and dispose of property. Article 31 provided that no person shall be deprived of his property except by the authority of law. Thus, if a legislator makes a law depriving a person of his property, there would be no obligation on the part of the state to pay anything as compensation. It nevertheless provided that compensation would be paid to the person whose property has been taken for public purposes.

The 44th Constitutional Amendment Act (1978) removed the right to property from the list of fundamental rights and moved it to a new Article 300-A. Hence, if the government appears to have acted unfairly, the aggrieved citizens cannot seek constitutional remedy under Article 32. However, the aggrieved citizens can still challenge the government action in a court of law under normal procedure.

 

 

ARTICLE 31A

 

By the 1st Constitutional Amendment Act (1951), the Parliament added Article 31A to the Indian Constitution. According to this, the government could acquire the property of the people by authority of law and in doing so, the fundamental rights mentioned in Article 14 and 19 of Indian Constitution shall not be violated. The purpose of enacting Article 31A was to enable the government to enact agrarian reform. It helped in the abolition of the Zamindari system as the government took the land from the Zamindars and used it for public welfare by either redistribution or agriculture. The government also took control of different private companies and various other resources in order to use them for enhanced growth.

 

 

ARTICLE 31B

 

It provided that none of the laws specified in the Ninth Schedule shall be deemed to be void (invalid) on ground of contravention with any of the Fundamental Rights, notwithstanding any judgments, decree or order of any court or tribunal to the contrary. The ninth Schedule of Indian Constitution is a list of acts and laws which cannot be challenged in the court of law. All the laws that were earlier declared void (invalid) by the Supreme Court on grounds of contravention with any of the Fundamental Rights were declared valid by including them in the ninth Schedule of the Indian Constitution. However, in 2007, the Supreme Court ruled that there could not be any blanket immunity from judicial review for the laws inserted in the Ninth Schedule. Apex court also stated it shall examine laws included in the Ninth Schedule after 1973 for any incompatibility with the basic structure doctrine.

 

 

ARTICLE 31C

 

It was added through the 25th Constitutional Amendment Act (1971) to give primacy to some Directive Principles of State Policy over the Fundamental Rights guaranteed under Article 14 and 19. Article 31C provided that any law made in order to give effect to Article 39 (b) and Article 39 (c) of Indian Constitution would avoid the scrutiny of courts even if it violated Article 14 and Article 19 of the Indian Constitution.  It also provided that the courts would not have the jurisdiction to decide whether the law enabled really gave effect to the principles mentioned in Article 39 (b) and 39 (c) of the Indian Constitution. 

Article 39 (b) – The State shall, in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good.

Article 39 (c) – The State shall, in particular, direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.

The 42nd Constitutional Amendment Act (1976) sought to accord precedence to all the Directive Principles over the Fundamental Rights. It’s a known fact that all legislative action and every of the governmental action has to be related directly or indirectly, to some directive principle of State policy in order to fulfil its purpose under the constitution. The protection of this amended article would have been available to every legislative action under the sun, resulting into a society that we could not have imagined. So it was natural that if article 31C was allowed to stand then that would have resulted into the complete failure of the basic spirit of the makers of the constitution and therefore would have violated the basic structure of the constitution of India. Hence, the amendment to Article 31C was repealed by the Supreme Court during MINERVA MILLS vs UNION OF INDIA CASE (1980).

 

 

RIGHT TO CONSTITUTIONAL REMEDIES (ARTICLE 32)

 

 

ARTICLE 32

 

CONSTITUTIONAL REMEDIES FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS

  1. The right to move to the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
  2. The Supreme Court shall have 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, for the enforcement of any of the rights conferred by this Part.
  3. Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
  4. The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

 

DESCRIPTION

Dr. BR Ambedkar, while commenting on Article 32, in the Constituent Assembly, said:

If I was asked to name any particular Article of the Constitution of India as the most important, I would not refer to any other Article except this one – An Article without which this Constitution is a nullity. It the very heart and soul of it“.

The right to remedies for the enforcement of Fundamental Rights is itself a Fundamental Right guaranteed under Part III of the Constitution of India. As such, a proceeding under Article 32 for the enforcement of Fundamental Rights included in Part III of the Constitution of India, and the right to bring such a proceeding before the Supreme Court, is described as the ‘Constitutional Remedy’. The Supreme Court cannot refuse to accept an application for such a proceeding on technical grounds. Thus, though a Writ may be ordinarily refused to a petitioner on the ground that such a petitioner has other legal remedies open to him (viz. district courts, or high courts), an application under Article 32 for the enforcement of Fundamental Rights included in Part III of the Constitution of India cannot be refused merely on this ground. However, no questions other than those dealing with Fundamental Rights will be determined in such proceedings under Article 32.

The Supreme Court has been given Original Powers in this regard, as the aggrieved person can directly go to the Supreme Court, and not necessarily by way of appeal from lower courts. Also the Supreme Court has been given Wide Powers in this regard, as its power is not restricted to issue directions or orders, and it can issue all kind of writs. However, the power of the Supreme Court for the enforcement of Fundamental Rights is not exclusive but concurrent with the power of the High Court under Article 226 for the enforcement of Fundamental Rights.

The main provisions of Article 32 are:

  1. A person shall have the right to move to the Supreme Court for the enforcement of the Fundamental Rights guaranteed under Part III of the Constitution.
  2. The Supreme Court shall have the power to issue direction, orders or writs for the enforcement of the Fundamental Rights guaranteed under Part III of the Constitution. Other than the prerogative writs which are available in ordinary courts of law, the Supreme Court may issue writs of Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo-Warranto, for the  enforcement of such Fundamental Rights.
  3. The Parliament,  may by law, empower any other court of law, to issue direction, orders or writs for the enforcement of the Fundamental Rights guaranteed under Part III of the Constitution.
  4. The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution. In this regard, the Constitution provides that the President can suspend the right to move to any court for the enforcement of Fundamental Rights, during a national emergency.

The Supreme Court has ruled that Article 32 is a Basic Feature of the Constitution of India, and hence, cannot be amended under Article 368.

 

 

WRITS – TYPES AND SCOPE

 

The writs are borrowed from English law where they are known as Prerogative Writs. They are so known because they were issued at the prerogative of the King who was, and is still described as the Fountain of Justice. Later, the High Courts started issuing these writs as extraordinary remedies to uphold the rights and liberties of the British People.

In India, the Supreme Court (under Article 32) and the High Courts (under Article 226) only can issue the writs of Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo-Warranto. Further, the Parliament can empower any other court to issue these writs. However, since no such provision has been made so far, therefore only the Supreme Court as well as the High Courts can issue these writs, and not any other courts.

 

DIFFERENCE BETWEEN THE WRIT JURISDICTIONS OF SUPREME COURT AND HIGH COURT

  1. The Supreme Court can issue writs only for the enforcement of Fundamental Rights while the High Courts can issue writs not only for the enforcement of Fundamental Rights but also for any other purpose. 
  2. The Supreme Court can issue writs against a person or government within the territory of India whereas the High Courts can issue writs against a person or government within their territorial jurisdiction only. The High Courts can nonetheless issue writs against a person or government outside their territorial jurisdiction only if the cause of action necessitating such a writ lies within their territorial jurisdiction. 
  3. The remedy under Article 32 is itself a Fundamental Right and hence, the Supreme Court may not refuse to exercise its writ jurisdiction. On the other hand, a remedy under Article 226 is not a Fundamental Right and hence, the High Court may refuse to exercise its writ jurisdiction.

Also it is to be noted, that issue of all the writs under Article 32, is mandatory only for the enforcement of Fundamental Rights guaranteed under Part III of the Constitution. In all other cases, it shall be the discretion of the Supreme Court as well as the High Courts to issue such writs.

 

 

HABEAS CORPUS

 

It is a Latin word which means – ‘To have the body of’.

A writ of Habeas Corpus is an order issued by the court calling upon a person who has detained another person, to produce the other person before it, in order to let the court know the grounds on which such a person has been detained and to set such a person free if there is no legal justification for his imprisonment.  The writ may be issued against official authorities as well as private individuals, who have another person in their custody. Disobedience to the writ is met with punishment for the contempt of court. Nevertheless, the writ of Habeas Corpus has priority over all other business of the court, and hence the court may also not delay such a petition on grounds of being occupied with other cases. 

 

CASES WHERE THE WRIT OF HABEAS CORPUS CAN BE ISSUED

  1. For the enforcement of Fundamental Rights under Article 32.
  2. Where the detention is ultra-vires (outside the scope of the law) the law providing for such a detention.

 

CASES WHERE THE WRIT OF HABEAS CORPUS CANNOT BE ISSUED

  1. Detention is lawful. For e.g. if a person has been detained for serving a punishment for a crime for which such person has been convicted.
  2. Detention is for the contempt of a legislature or a court. For e.g. if a person has been detained for not obeying the law in force or an order of the court.
  3. Detention is by a competent court. For e.g. if such a detention is through an order of a competent court having jurisdiction over the matter.
  4. Detention is outside the jurisdiction of the court. For e.g. if a person is detained in some foreign country.

 

HABEAS CORPUS CASE (1976)

Also known as ADM Jabalpur Case, the Supreme Court in 1976 held that liberty was a regulated freedom, and hence, not absolute in extraordinary circumstances, such as during a state of internal Emergency. As a result, the government made extensive use of preventive detention, arresting people not because they had committed any offence, but on the apprehension that they might commit one. However, this, one of the most controversial verdict, of the Supreme Court was overturned by a majority bench of Supreme Court in 2017. Hence, the present law allows for preventive detention only on grounds of past behaviour and not just potential.

 

RECENT PERFORMANCE OF THE WRIT OF HABEAS CORPUS

The recent arrest of several political leaders under preventive detention laws in Jammu and Kashmir owing to revocation of Article 370 has attracted a lot of Habeas Corpus petitions to the Supreme Court, since these detentions have been based on arrested persons’ potential and not past records to disrupt the peace, stability or security of the State. This required the Supreme Court to direct the government authorities to produce such people before the court and justify the grounds of their detention. However, the Supreme Court failed to issue such directions and instead justified the actions of the government. Rather than asking the government to produce such people before the court, the Supreme Court directed the government to allow such petitioners to meet these detained people to let them know their well being. In other petitions, the Supreme Court gave as much time as two weeks to the government to respond back on charges of arbitrary detention, which meant that the government could still arbitrarily detain a person for as long as two weeks. Hence, it could be said that the writ of Habeas Corpus has not served the purpose it was introduced for by the makers of the Constitution. No doubt that such preventive detentions were done to maintain peace and stability in the region after revocation of Article 370. However, the grounds of such preventive detentions needed to be proved in sync with Constitutional provisions.

 

 

MANDAMUS

 

It literally means – ‘We Command’.

A writ of Mandamus is an order issued by the court, to a public official or agency, to perform such official duties which such an official or agency is obliged to perform but has failed or refused to perform. 

 

CASES WHERE THE WRIT OF MANDAMUS CAN BE ISSUED

  1. Where the applicant has a legal right to the performance of such a duty by the public official or agency in question.
  2. Where the applicant has a legal right to the non performance of such a duty by the public official or agency, in a larger public interest.
  3. Against not just public official or agency, but also lower courts.
  4. Against a private individual if it is established that he has colluded with a public authority.

 

CASES WHERE THE WRIT OF MANDAMUS CANNOT BE ISSUED

  1. Against a private individual or organization. For e.g. we cannot issue a writ of Mandamus to direct some private company to provide some service which it has denied to provide. However, the writ could be issued against any public-private partnership company or firm.
  2. Against the President of India or Governor of any state.
  3. Against the Chief Justice of a High Court.
  4. Against an officer or member of the Parliament, or an officer or member of the state legislature,
    1. for regulating procedure or the conduct of business or maintaining order, in the legislature.
    2. for not passing a legislation encroaching upon Fundamental Rights, except those prohibited under Basic Structure Doctrine.
  5. Against a community to practice its religion in a particular manner. However, the court can declare any non-essential practice of a religion to be invalid under its other judicial powers.
  6. To enforce departmental instructions that do not have force of law.
  7. To enforce a contractual obligation. For e.g. we cannot issue a writ of Mandamus to direct Electricity department to buy electricity from private solar power plant, which it was supposed to buy under a contractual agreement with the same.
  8. When such a duty is discretionary, and not mandatory.

Hence the writ of mandamus is to protect the interest of the public from the powers given to them to affect the rights and liabilities of the people. This writ makes sure that the power or the duties are not misused by the executive or administration and are duly fulfilled. It safeguards the public from the misuse of authority by the administrative bodies.

 

 

PROHIBITION

 

It literally means – ‘To Prohibit’.

A writ of Prohibition is an order issued by the higher court to a lower court or a tribunal to prevent it from exceeding its jurisdiction. Thus, the writ of Prohibition, demands inactivity on part of the judicial or quasi judicial authority to help it avoid take an action in excess of its jurisdiction. The writ of Prohibition can be issued only against judicial or quasi-judicial authorities. 

 

CASES WHERE THE WRIT OF PROHIBITION CAN BE ISSUED

  1. Against a lower court or a tribunal.
  2. Against any judicial or quasi-judicial authority other than the courts or tribunals.

 

CASES WHERE THE WRIT OF PROHIBITION CANNOT BE ISSUED

  1. Against administrative, or legislative authorities, not vested with judicial or quasi-judicial functions.
  2. Against private individuals or organisations.

 

 

CERTIORARI

 

It literally means – ‘Certified’.

It is a writ issued by a higher court to a lower court or a tribunal either to transfer a case pending with the later to itself or to squash the order of the later in a case. It is issued on the grounds of excess of jurisdiction or lack of jurisdiction i.e. when a judicial or quasi judicial agency takes some action on a case which either lies outside its jurisdiction or over which it has no jurisdiction at all. 

Situations under which a tribunal, judicial or quasi judicial authority may be said to have acted outside its jurisdiction:

  1. Where the composition of such a body is not proper as per the law. 
  2. Where the subject matter of enquiry is beyond the scope of such a body.
  3. Where such a body has assumed jurisdiction on the basis of incorrect facts.
  4. Where there has been denial of natural justice, for any other reason.

 

CASES WHERE THE WRIT OF CERTIORARI CAN BE ISSUED

  1. Against a lower court or a tribunal.
  2. Against any judicial or quasi-judicial authority other than the courts or tribunals.
  3. Against administrative, or legislative authorities, even if not vested with judicial or quasi-judicial functions.

 

CASES WHERE THE WRIT OF CERTIORARI CANNOT BE ISSUED

The writ of Certiorari cannot be issued against private individuals or organisations.

 

DIFFERENCE BETWEEN CERTIORARI AND PROHIBITION

While the writ of Prohibition is available before the commission of the act to prevent the authority from taking an action over which it has no jurisdiction, the writ of Certiorari is available after the commission of the act to either transfer the case to competent authority or to quash such action. Also, while the writ of Prohibition is not available against administrative or legislative authorities not having judicial or quasi-judicial functions, the writ of Certiorari is available in such cases too. 

 

 

QUO WARRANTO

 

It literally means – ‘With what authority or warrant?’.

It is issued by the court to enquire into the legality of claim of a person to a public office. Hence, it prevents illegal usurpation of public office by a person. The writ calls upon the holder of a public office to show to the court under what authority he is holding the office in question . If he is not entitled to the office , the court may restrain him from acting in the office and may also declare the office to be vacant. The writ proceedings not only give a weapon to control the executive from making appointments to public office against law but also tend to protect the public from being deprived of public office to which it has a right.

The necessary ingredients to be satisfied by the court before issuing a writ is that the office in question must be public, created by the constitution or a law, and the person holding the office is not legally qualified to hold the office, in clear infringements of provisions of the constitution or the law. The writ cannot be issued in cases of ministerial or private office. It is the person against whom writ of quo warranto is directed, who is required to show by what authority the person is entitled to hold the office.

It is a discretionary remedy, which the court can grant or refuse, according to the facts and circumstances in the case. 

 

 

ARMED FORCES AND FUNDAMENTAL RIGHTS (ARTICLES 33 – 35)

 

 

ARTICLE 33

 

APPLICATION TO ARMED FORCES AND INTELLIGENCE ORGANISATIONS

Parliament may, by law, determine the extent to which any of the rights conferred by Part III of the Constitution of India, shall be restricted or abrogated in their application to,

  1. the members of the Armed Forces,
  2. the members of the Forces charged with the maintenance of public order,
  3. members of the intelligence or counter-intelligence agencies,
  4. persons employed in, or in connection with, the telecommunication systems set up for the purposes of any force, bureau or organisation referred to in clauses (a) to (c),

so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

 

DESCRIPTION

Article 33 empowers the Parliament to restrict or abrogate the application of the Fundamental Rights in relation to the armed forces, paramilitary forces, police etc. But it does not mean that the article itself would abrogate any rights. The operation of this article depends upon the parliamentary legislation. Such legislation by Parliament of India may restrict the operation of any fundamental rights such as Equality, Freedom of Expression, Freedom of association, Personal Liberty etc. In this regard, the Parliament has enacted following laws.

  1. Army Act (1950).
  2. Navy Act (1950).
  3. Air Force Act (1950).
  4. Police Forces (Restriction of Rights) Act (1966).

However, members of the armed forces and intelligence agencies have the Right to Constitutional Remedy under Article 32 i.e. they can still file a writ in the Supreme Court or the High Court if they feel that their fundamental right has been arbitrarily violated or restricted. 

 

IS IT FAIR TO RESTRICT FUNDAMENTAL RIGHTS IN CERTAIN PROFESSIONS?

Many a times professionals providing essential services exercise their fundamental right to protest to pressurise government for one demand or the other and go on strike, causing a lot of inconvenience to the general public. For e.g. doctors went on strike against National Medical Commission Bill 2019, thereby disrupting health services across the country, as a result of which many people suffered. Although government has put in safeguards against such disruption of essential services by public agencies, through the Essential Services Maintenance Act, 1968, still given the huge population of the country, any small disruption makes a huge impact. Similarly, the disclosure, by Indian media, under its fundamental right to disseminate information, of position of Indian troops during the Kargil War of 1999 resulted into many fatalities in the army. Given such incidents makes one feel that certain restrictions must be imposed on Fundamental Rights of certain professions.

Laws governing services terms of security forces and police specifically prohibit them from organising or participating in any form of protest against the State. Even, the barbers, musicians, carpenters, mechanics etc. who are employees of the armed forces don’t enjoy all the Fundamental Rights available to the citizens. The underlying reason for this is the possibility of these rights and freedoms being misused by vested interests to threaten the peace, security and stability of the country. For e.g. imagine a situation if the soldiers, or say their cooks decides to go on a strike demanding salary hike and abandons its duties in border areas until the demands are met.

During debates on human rights and their violations in India, a question that often crops up routinely is whether in a free democratic country like India, people in uniform should also have the right to protest like other citizens do. There has also been recurring criticism about the lack of discussion and advocacy for human rights of security forces when they are attacked by unruly mobs etc. The recent incidences of stone pelting on Indian Army in Kashmir and attack on police by the lawyers at Tees Hazari Court in Delhi make this discussion an important one. In this regard, the Supreme Court has agreed to examine and hear a petition that seeks formulation of a policy to safeguard the rights of armed forces personnel on what all could come under their ambit while discharging their duties in case of facing an unruly mob or individuals who attack them while performing their military duty. 

It is tough to say if curtailing Fundamental Rights for certain professions is right or wrong. On the one hand is the need to ensure basic rights to every individual while on the other is the need to maintain the stability, safety and security of the nation as a whole. Given the two options, obviously our Constitution chose the second option, in the larger public interest.

 

 

ARTICLE 34

 

MARTIAL LAW AND FUNDAMENTAL RIGHTS

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 by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force, or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

 

DESCRIPTION

The concept of martial law has been borrowed in India from the English law.  Literally, Martial Law refers to military rule. It refers to a situation where civil administration is run by the military authorities according to their own rules and regulations, framed outside the ordinary law.

However, the expression ‘Martial Law’ has not been defined in the Indian Constitution. There is no specific provision of the Constitution of India which authorises the executive to declare martial law. Martial Law could be imposed only by the armed forces. Article 34 simply imply that if there is a Government servant on duty, then he or she is indemnified for the acts done by him or her in connection with maintenance of law and order in the area where martial law is in force. Also, it is implied by Article 34 that Martial Law could be declared in any area within the territory of India, under extraordinary circumstances like war, or external aggression or civil rebellion, or riot, or any violent resistance to the laws of the land.

The act of indemnity by the Parliament for any acts done by the executive during martial law cannot be challenged in any court of law on the ground of contravention of any of the fundamental rights. 

 

 

ARTICLE 35

 

POWERS OF THE PARLIAMENT WITH RESPECT TO LAWS PROVIDING FUNDAMENTAL RIGHTS

  1. Parliament shall have, and the Legislature of a state shall not have, power to make laws,
    1. regarding the requirement of residence in a state for the purpose of employment in that state – Article 16 (3).
    2. regarding the delegation of power to issue writs, to the courts other than the Supreme Court and the High Courts – Article 32 (c).
    3. regarding restricting or abrogating the fundamental rights of the members of the armed forces and intelligence organisations – Article 33.
    4. regarding indemnifying a person in the service of the Union or of a state or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force – Article 34.
  2. Parliament shall have, and the Legislature of a state shall not have, powers to make laws for prescribing punishment for those acts that are declared to be offences under Fundamental Rights mentioned under Part III of the Constitution of India.
  3. Any law in force at the commencement of the Constitution with respect to any of the matters specified above shall continue to stay in force until altered or repealed or amended by the Parliament.

 

DESCRIPTION

Article 35 extends the competence of the Parliament by authorising it to legislate on matters specified under Article 35, even if they otherwise fall under state list.

 

 

KEY FACTS

 

The term ‘Creamy Layer’ was introduced by the Sattanathan Commission in 1971, which directed that the creamy layer should be excluded from the reservations in government jobs. In 1993, Ram Nandan Committee submitted its report to identify the creamy layer among the OBCs.