Under this system, the welfare of its citizens is the responsibility of the state. India was not a welfare state before independence. The British rule was not very interested in protecting and promoting the welfare of the people. Whatever it did was in keeping with the interests of the British colonial government and not in the interests of the people of India.
When India attained independence, it had innumerable problems and challenges. The social and economic inequality was all pervasive. Economically, India’s situation was miserable. Socially also India was having a number of problems. There were social inequalities and all the vulnerable sections of the society such as women, Dalits, children were deprived of basic means of living. The Constitution makers were very much aware of the problems. That is why they decided that India would be a welfare state. As you must have seen, India is described as a “sovereign socialist secular democratic republic” in the Preamble of the Indian Constitution. Accordingly, the Constitution has extensive provisions to ensure the social and economic welfare of the people of India. In this regard two specific provisions have been made, one in the form of Fundamental Rights and the other as Directive Principles of State Policy.
The Fundamental Rights embodied in Part III of the Indian Constitution act as a guarantee that all Indian citizens can and will enjoy civil liberties and basic rights. These civil liberties take precedence over any other law of the land. They are individual rights commonly included in the Constitutions of liberal democracies. Some of these important rights are: equality before the law, freedom of speech and expression, freedom of association and peaceful assembly, freedom of religion, and the right to constitutional remedies for the protection of civil rights. But this was not enough. Indian citizens also needed opportunities for economic and social development. That is why Part IV on Directive Principles of State Policy was included in the Indian Constitution.
You have already read that Fundamental Rights are indeed very essential for the well being of every citizen. We also know that people have always struggled against injustice, exploitation, and inequality for the creation of better surroundings, better living conditions and preservation of human dignity. Efforts to avail such rights to all human beings have been made at the international level also by recognizing various rights which are popularly known as Human Rights. The General Assembly of the United Nations adopted Human Rights in 1948 and enshrined them in Universal Declaration of Human Rights about which you will study later. Some of the Human Rights are: Equality before Law, Freedom from Discrimination, Right to Life, Liberty and Personal Security, Right to Free Movement, Right to Education, Right to Marriage and Family, Freedom of Thought, Conscience and Religion, Right to Peaceful Assembly and Association and Right to Participate in the Cultural Life of the Community. If you carefully examine the above-mentioned rights, you will realize how important Human Rights are.
That is why, many of the Human Rights have found place in the Chapter on Fundamental Rights in the Indian Constitution. The Human Rights which could not find place under the Fundamental Rights have been included in the Chapter on Directive Principles of State Policy. Moreover, keeping in view the importance of Human Rights, the National Human Rights Commission was founded in 1993 by the Government of India to guarantee that the Indian citizens also enjoy those rights.
Do You Know
Human rights are universal, fundamental and absolute: universal because they belong to all humans everywhere; fundamental because they are inalienable; absolute because they are basic to real living.
As we have seen, rights are claims that are essential for the existence and development of individuals. In that sense there will a long list of rights. Whereas all these are recognized by the society, some of the most important rights are recognized by the State and enshrined in the Constitution. Such rights are called fundamental rights. These rights are fundamental because of two reasons. First, these are mentioned in the Constitution which guarantees them and the second, these are justiciable, i.e. enforceable through courts. Being justiciable means that in case of their violation, the individual can approach courts for their protection. If a government enacts a law that restricts any of these rights, it will be declared invalid by courts. Such rights are provided in Part III of the Indian Constitution. The Constitution guarantees six fundamental rights to Indian citizens as follows: (i) right to equality, (ii) right to freedom, (iii) right against exploitation, (iv) right to freedom of religion, (v) cultural and educational rights, and (vi) right to constitutional remedies. While these fundamental rights are universal, the Constitution provides for some exceptions and restrictions.
Do You Know
Originally, there were seven Fundamental Rights in the Constitution. Besides the above mentioned six rights, there was the Right to Property also. Since this Right created a lot of problems in the way of attaining the goal of socialism and equitable distribution of wealth, it was removed from the list of Fundamental Rights in 1978 by 44th constitutional amendment. However, its deletion does not mean that we do not have the right to acquire, hold and dispose of property. Citizens are still free to enjoy this right. But now it is just a legal right and not a Fundamental Right.
Right to equality is very important in a society like ours. The purpose of this right is to establish the rule of law where all the citizens should be treated equally before the law. It has five provisions (Articles 14-18) to provide for equality before law or for the protection of law to all the persons in India and also to prohibit discrimination on the grounds of religion, race, caste, sex or place of birth.
(i) Equality before Law: Article 14 The Constitution guarantees that all citizens will be equal before law. It means that everyone will be equally protected by the laws of the country. No person is above law. It means that if two persons commit the same crime, both of them will get the same punishment without any discrimination.
(ii) No Discrimination on the basis of Religion, Race, Caste, Sex or Place of Birth:Article 15 The State cannot discriminate against a citizen on the basis of religion, race, caste, sex or place of birth. This is necessary to bring about social equality. Every citizen of India has equal access to shops, restaurants, places of public entertainment or in the use of wells, tanks or roads without any discrimination. However, the State can make special provisions or concessions for women and children.
(iii) Equality of Opportunity to all Citizens in matter of Public Employment: Article 16 The State cannot discriminate against anyone in the matter of public employment. All citizens can apply and become employees of the State. Merits and qualifications will be the basis of employment. However, there are some exceptions to this right. There is a special provision for the reservation of posts for citizens belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes (OBCs)
(iv) Abolition of Untouchability: Article 17 Practising untouchability in any form has been made a punishable offence under the law. This provision is an effort to uplift the social status of millions of Indians who had been looked down upon and kept at a distance because of either their caste or the nature of their profession. But, it is really very unfortunate that despite constitutional provisions, this social evil continues even today. Can you find any difference when you see a nurse cleaning a patient, a mother cleaning her child and a lady cleaning a toilet in the illustration? Why do people consider the cleaning of a toilet in a derogatory manner?
(v) Abolition of Titles:Article 18 All the British titles like Sir (Knighthood) or Rai Bahadur which were given to the British loyalists during the British rule, have been abolished because they created distinctions of artificial nature. However, the President of India can confer civil and military awards to those who have rendered meritorious service to the nation in different fields. The civil awards such as Bharat Ratna, Padma Vibhushan, Padam Bhushan and Padma Shri and the military awards like Veer Chakra, Paramveer Chakra, Ashok Chakra are conferred. Do you know that these awards are not titles? Educational and military awards can be prefixed with one’s name?
Right to Freedom Articles 19-22.
You will agree that the freedom is the most cherished desire of every living being. Human beings definitely want and need freedom. You also want to have freedom. The Constitution of India provides Right to Freedom to all its citizens. This Right is stipulated under Articles 19-22. The following are the four categories of Rights to Freedom:
I. Six Freedoms: Article 19 of the Constitution provides for the following six freedoms:
(a) Freedom of speech and expression (b) Freedom to assemble peacefully and without arms. (c) Freedom to form Associations and Unions (d) Freedom to move freely throughout the territory of India (e) Freedom to reside and settle in any part of India (f) Freedom to practise any profession or to carry on any occupation, trade or business
The purpose of providing these freedoms is to build and maintain an environment for proper functioning of democracy. However, the Constitution has authorized the State to impose certain reasonable restrictions on each of them:
1. Restrictions may be put on the Right to Freedom of speech and expression in the interests of the sovereignty, integrity and security of India, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
2. Right to assemble peacefully and without arms may be restricted in the interests of the sovereignty and integrity of India or public order.
3. Right to form associations or unions may have restrictions in the interests of the sovereignty and integrity of India, public order or morality.
4. Right to move freely throughout the territory of India and to reside and settle in any part of India may also be restricted in the interest of the general public or for the protection of the interests of any Scheduled Tribe.
5. Right to practise any profession or to carry on any occupation, trade or business may have restrictions in the interests of the general public. The State is also permitted to lay down the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business.
II. Protection in respect of conviction for offences:Article 20 of the Constitution provides for the protection in respect of conviction for offences. No one can be convicted for an act that was not an offence at the time of its commission, and no one can be given punishment greater than what was provided in the law prevalent at the time of its commission. Also, no one can be prosecuted and punished for the same offence more than once and can be forced to give witness against his or her own self.
III.Protection of life and personal liberty: As provided in Article 21, no one can be deprived of his or her life or personal liberty except according to the procedure established by law.
IV. Protection against arrest and detention in certain cases: It is provided in Article 22 that whenever a person is arrested, he or she should be informed, as soon as it is possible, of the grounds for arrest and should be allowed to consult and to be defended by a legal practitioner of his or her choice. Moreover, the arrested person must be produced before the nearest magistrate within 24 hours of such an arrest except person who has been arrested under preventive detention law. The case of the person arrested under preventive detention law has also to be referred to an Advisory Board within a period of three months of his or her arrest.
Do You Know
1. What will happen if the State misuses its power in the name of reasonable restrictions? Who will decide the reasonableness? According to the Constitution, only the courts can decide this issue and not the government.
2. Only some of the Fundamental Rights are enjoyed by the foreigners and not all. For example, the Right to Equality before Law and Right to Freedom of Religion are enjoyed by the foreigners also, but most other Fundamental Right are exclusively for the Indian citizens only.
1. Freedom of speech and expression
Restriction on the movement of a person/group to prevent spread of violence.
2. Freedom to form Associations and Unions
Not allowed to run trades like gambling, prostitution, selling of narcotic drugs.
3. Freedom to assemble peacefully and without arms.
Not allowed to reside too close to aerodrome
4. Freedom to move freely throughout the territory of India
Restriction on the use of language that may instigate people for communal violence
5. Free to reside and settle in any part of India
Not allowed to form an association to help terrorist activities
6. Freedom to practise any profession or to carry on any occupation, trade or business
Should be peaceful and participants should not carry any weapon.
Right against Exploitation
Have you ever thought about how many ways exploitations take place in our society? You might have seen a small child working in a tea shop or a poor and illiterate person being forced to work in the household of a rich person. Traditionally, the Indian society has been hierarchical that has encouraged exploitation in many forms. Which is why the Constitution makes provisions against exploitation. The citizens have been guaranteed the right against exploitation through Articles 23 and 24 of the Constitution. These two provisions are:
1. Prohibition of traffic in human beings and forced labour:Article 23 Traffic in human beings and begar and other similar forms of forced labour are prohibited and any breach of this provision shall be an offence punishable in accordance with law.
Do You Know
1. Traffic in human beings means selling and buying of human beings as material goods. Trafficking, especially of young women, girls and even boys is continuing as an illegal trade.
2. Earlier especially in the feudal Indian society, people belonging to the poor and downtrodden sections were made to do work free of charge for landlords and other powerful people. This practice was Begar or forced labor.
3. Prohibition of employment of children in factories, etc.: Article 24As the Constitution provides, 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. This right aims at eliminating one of the most serious problems, child labor, that India has been facing since ages. Children are assets of the society. It is their basic right to enjoy a happy childhood and get an education. But as shown in the illustration and as you also may have observed, in spite of this constitutional provision, the problem of child labor is still continuing at many places. This malice can be eliminated by creating public opinion against it.
Right to Freedom of Religion
As you know, one of the objectives declared in the Preamble is “to secure to all its citizens’ liberty of belief, faith, and worship”. Since India is a multi-religion country, where Hindus, Muslims, Sikhs, Christians, and many other communities live together, the Constitution declares India as a ‘secular state’. It means that the Indian State has no religion of its own. But it allows full freedom to all the citizens to have faith in any religion and to worship, the way they like. But this should not interfere with the religious beliefs and ways of worship of other fellow beings. This freedom is available to foreigners as well. In respect of the Right to freedom the Constitution makes the following four provisions under Articles 25-28:
1. Freedom of conscience and free profession, practice and propagation of religion: Article 25All persons are equally entitled to freedom of conscience and the right to profess, practise and propagate religion freely. However, it does not mean that one can force another person to convert his/her religion by force or allurement. Also, certain inhuman, illegal and superstitious practices have been banned. Religious practices like sacrificing animals or human beings, for offering to gods and goddesses or to some supernatural forces are not-permissible. Similarly, the law does not permit a widow to get cremated live with her dead husband (voluntarily or forcibly) in the name of Sati Pratha. Forcing the widowed woman not to marry for a second time or to shave her head or to make her wear white clothes are some other social evils being practised in the name of religion. Besides the above stated restrictions, the State also has the power to regulate any economic, financial, political or other secular activities related to religion. The State can also impose restrictions on this right on the grounds of public order, morality and health.
2. Freedom to manage religious affairs:Article 26 Subject to public order, morality, and health, every religious group or any section thereof shall have the right (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.
3. Freedom as to the payment of taxes for promotion of any particular religion:Article 27 No person shall be compelled to pay any tax, the proceeds of which are specifically used in payment of expenses the incurred on the promotion or maintenance of any particular religion or religious sect.
4. Freedom as to attendance at religious instruction or religious worship in certain educational institutions Article 28 : (1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds. However, it will not apply to an educational institution which is administered by the State but has been established under any trust which requires that religious instruction shall be imparted in such an institution. But no person attending such an institution shall be compelled to take part in any religious instruction that may be imparted there or attend any religious worship that may be conducted there. In case of a minor, the consent of his/her guardian is essential for attending such activities.
Cultural and Educational Rights
India is the largest democracy in the world having a diversity of culture, scripts, languages, and religions. As we know democracy is a rule of the majority. But the minorities are also equally important for its successful working. Therefore, protection of language, culture, and religion of the minorities becomes essential so that the minorities may not feel neglected or undermined under the impact of the majority rule. Since people take pride in their own culture and language, a special right is known as Cultural and Educational Right has been included in the Chapter on Fundamental Rights. In Articles 29-30 two major provisions have been made:
1. Protection of interests of minorities:Article 29 Any minority group having a distinct language, script or culture of its own shall have the right to conserve the same. 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.
2. Right of minorities to establish and administer educational institutions:Article 30 All Minorities, whether based on religion or language, have the right to establish and administer educational institutions of their choice. In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property would not restrict or abrogate the right guaranteed under that clause. 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.
Do You Know
Minority does not mean the minority at the national level. There can be minorities at the state level also. For example, the Sikhs are a majority community in Punjab, but they are a minority community in Delhi, Rajasthan, Haryana, and many other States. Similarly Telugu, Kannad and Bangala speaking people are in minority in most of the States in India except in their own, i.e. Andhra Pradesh, Karnataka, West Bengal.
Right to Constitutional Remedies
Since Fundamental Rights are justiciable, they are just like guarantees. They are enforceable, as every individual has the right to seek the help from courts, if they are violated. But in reality it is not so. Encroachment or violation of Fundamental Right in our day to day life is a matter of great concern. Which is why, our Constitution does not permit the legislature and the executive to curb these rights. It provides legal remedies for the protection of our Fundamental Rights. This is called the Right to Constitutional Remedies stipulated in Article 32. When any of our rights are violated, we can seek justice through courts. We can directly approach the Supreme Court that can issue directions, orders or writs for the enforcement of Fundamental Rights.
The Right to Education is added by introducing a new Article 21A in the Chapter on Fundamental Rights in 2002 by the 86th Constitutional Amendment. It was a long-standing demand so that all children in the age group of 6-14 years (and their parents) can claim compulsory and free education as a Fundamental Right. It is a major step forward in making the country free of illiteracy. But this addition remained meaningless, as it could not be enforced until 2009 when the Parliament passed the Right to Education Act, 2009. It is this Act which aims at ensuring that every child who is between 6-14 years of age and is out of the school in India, goes to school and receives quality education, that is his/her right.
When the President makes a proclamation of emergency under Article 352. the freedoms guaranteed under Article 19 are automatically suspended. During the proclamation of emergency, no law or executive order issued by the state can be challenged on the ground that it is inconsistent with the rights guaranteed by Article 19. The President can suspend other Fundamental Rights through specific orders, but these orders must be approved by the Parliament. It may be observed that such orders of the President may extend to the whole or any part of the territory of India. The provisions regarding suspension of Fundamental Rights have been severely criticised by some, but the general view has been that the interests of the country must get precedence over the interests of the individual.
The Fundamental Rights guaranteed by the Constitution have the following special features:
They are more sacrosanct than rights granted by ordinary laws because they have been guaranteed by the Constitution.
They are not absolute and are subject to reasonable restrictions.
They are justiciable and can be enforced through the courts.
The Fundamental Rights (including the right to constitutional remedies) may be suspended during a national emergency.
Certain Fundamental Rights granteed by the Constitution arc not available to certain sections of society. Thus, the members of armed forces and police arc not permitted to make use of their political rights.
These rights arc available only against the state and not against private parties or individuals.
The Fundamental Rights are both positive and negative. While the Fundamental Rights which confer certain privileges on citizens are positive, others which prevent the slate from conferring certain special privileges are negative.
While some of the rights arc available only to the citizens, others are available to foreigners and legal persons.
If a person is deprived of his fundamental rights by the state he can directly move the Supreme Court for their enforcement.
The application of the fundamental rights can be restricted if martial law is in operation in a particular area.
The Fundamental Rights are enshrined in Part III of the Constitution from Articles 12 to 35. In this regard, the framers of the Constitution derived inspiration from the Constitution of USA (i.e., Bill of Rights).
Part III of the Constitution is rightly described as the Magna Carta of India.1 It contains a very long and comprehensive list of ‘justiciable’ Fundamental Rights. In fact, the Fundamental Rights in our Constitution are more elaborate than those found in the Constitution of any other country in the world, including the USA.
The Fundamental Rights are guaranteed by the Constitution to all persons without any discrimination. They uphold the equality of all individuals, the dignity of the individual, the larger public interest and unity of the nation.
The Fundamental Rights are meant for promoting the ideal of political democracy. They prevent the establishment of an authoritarian and despotic rule in the country, and protect the liberties and freedoms of the people against the invasion by the State. They operate as limitations on the tyranny of the executive and arbitrary laws of the legislature. In short, they aim at establishing ‘a government of laws and not of men’.
The Fundamental Rights are named so because they are guaranteed and protected by the Constitution, which is the fundamental law of the land. They are ‘fundamental’ also in the sense that they are most essential for the all-round development (material, intellectual, moral and spiritual) of the individuals.
Some of them are available only to the citizens while others are available to all persons whether citizens, foreigners or legal persons like corporations or companies.
They are not absolute but qualified. The state can impose reasonable restrictions on them. However, whether such restrictions are reasonable or not is to be decided by the courts. Thus, they strike a balance between the rights of the individual and those of the society as a whole, between individual liberty and social control.
Most of them are available against the arbitrary action of the State, with a few exceptions like those against the State’s action and against the action of private individuals. When the rights that are available against the State’s action only are violated by the private individuals, there are no constitutional remedies but only ordinary legal remedies.
Some of them are negative in character, that is, place limitations on the authority of the State, while others are positive in nature, conferring certain privileges on the persons. They are justiciable, allowing persons to move the courts for their enforcement, if and when they are violated.
They are defended and guaranteed by the Supreme Court. Hence, the aggrieved person can directly go to the Supreme Court, not necessarily by way of appeal against the judgment of the high courts.
They are not sacrosanct or permanent. The Parliament can curtail or repeal them but only by a constitutional amendment act and not by an ordinary act. Moreover, this can be done without affecting the ‘basic structure’ of the Constitution. (The amenability of fundamental rights is explained in detail in Chapter 11).
They can be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21. Further, the six rights guaranteed by Article 19 can be suspended only when the emergency is declared on the grounds of war or external aggression (i.e., external emergency) and not on the ground of armed rebellion (i.e., internal emergency). (The suspension of fundamental rights during a national Emergency is explained in detail in Chapter 16).
Their scope of operation is limited by Article 31A (saving of laws providing for the acquisition of estates, etc.), Article 31B (validation of certain acts and regulations included in the 9th Schedule) and Article 31C (saving of laws giving effect to certain directive principles).
Their application to the members of armed forces, para-military forces, police forces, intelligence agencies, and analogous services can be restricted or abrogated by the Parliament (Article 33).
Their application can be restricted while martial law is in force in any area. Martial law means ‘military rule’ imposed under abnormal circumstances to restore order (Article 34). It is different from the imposition of a national emergency.
Most of them are directly enforceable (self-executory) while a few of them can be enforced on the basis of a law made for giving effect to them. Such a law can be made only by the Parliament and not by state legislatures so that uniformity throughout the country is maintained (Article 35).
DEFINITION OF STATE
The term ‘State’ has been used in different provisions concerning the fundamental rights. Hence, Article 12 has defined the term for the purposes of Part III. According to it, the State includes the following:
(a) Government and Parliament of India, that is, executive and legislative organs of the Union government. (b) Government and legislature of states, that is, executive and legislative organs of state government. (c) All local authorities, that is, municipalities, panchayats, district boards, improvement trusts, etc. (d) All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.
Thus, State has been defined in a wider sense so as to include all its agencies. It is the actions of these agencies that can be challenged in the courts as violating the Fundamental Rights.
According to the Supreme Court, even a private body or an agency working as an instrument of the State falls within the meaning of the ‘State’ under Article 12.
Article 13 declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void. In other words, it expressively provides for the doctrine of judicial review. This power has been conferred on the Supreme Court (Article 32) and the high courts (Article 226) that can declare a law unconstitutional and invalid on the ground of contravention of any of the Fundamental Rights.
The term ‘law’ in Article 13 has been given a wide connotation so as to include the following: (a) Permanent laws enacted by the Parliament or the state legislatures; (b) Temporary laws like ordinances issued by the president or the state governors; (c) Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-law, rule, regulation or notification; and (d) Non-legislative sources of law, that is, custom or usage having the force of law.
Thus, not only legislation but any of the above can be challenged in the courts as violating a Fundamental Right and hence, can be declared as void.
Further, Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged. However, the Supreme Court held in the Kesavananda Bharati case2 (1973) that a The constitutional amendment can be challenged on the ground that it violates a fundamental right that forms a part of the ‘basic structure’ of the Constitution and hence, can be declared as void.
(a) Equality before law and equal protection of laws (Article 14). (b) Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Article 15). (c) Equality of opportunity in matters of public employment (Article 16). (d) Abolition of untouchability and prohibition of its practice (Article 17). (e) Abolition of titles except military and academic (Article 18).
2. Right to freedom (Articles 19–22)
(a) Protection of six rights regarding freedom of: (i) speech and expression, (ii) assembly, (iii) association, (iv) movement, (v) residence, and (vi) profession (Article 19). (b) Protection in respect of conviction for offences (Article 20). (c) Protection of life and personal liberty (Article 21). (d) Right to elementary education (Article 21A). (e) Protection against arrest and detention in certain cases (Article 22).
3. Right against exploitation (Articles 23–24)
(a) Prohibition of traffic in human beings and forced labour (Article 23). (b) Prohibition of employment of children in factories, etc. (Article 24).
(a) Freedom of conscience and free profession, practice and propagation of religion (Article 25). (b) Freedom to manage religious affairs (Article 26). (c) Freedom from payment of taxes for promotion of any religion (Article 27). (d) Freedom from attending religious instruction or worship in certain educational institutions (Article 28).
5. Cultural and educational rights (Articles 29–30)
(a) Protection of language, script and culture of minorities (Article 29). (b) Right of minorities to establish and administer educational institutions (Article 30).
Right to move the Supreme Court for the enforcement of fundamental rights including the writs of (i) habeas corpus, (ii) mandamus, (iii) prohibition, (iv) certiorari, and (v) quo war-rento (Article 32).
FR available only to citizens and not to foreigners
FR available to both citizens and foreigners (except enemy aliens)
1. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Article 15).
1. Equality before law and equal protection of laws (Article 14).
2. Equality of opportunity in matters of public employment (Article 16).
2. Protection in respect of conviction for offences (Article 20).
3. Protection of six rights regarding freedom of : (i) speech and expression, (ii) assembly, (iii) association, (iv) movement, (v) residence, and (vi) profession (Article 19).
3. Protection of life and personal liberty (Article 21).
4. Protection of language, script and culture of minorities (Article 29).
4. Right to elementary education (Article 21A).
5. Right of minorities to establish and administer educational institutions (Article 30)
5. Protection against arrest and detention in certain cases (Article 22).
6. Prohibition of traffic in human beings and forced labour (Article 23).
7. Prohibition of employment of children in factories etc., (Article 24).
8. Freedom of conscience and free profession, practice and propagation of religion (Article 25).
9. Freedom to manage religious affairs (Article 26).
10. Freedom from payment of taxes for promotion of any religion (Article 27).
11. Freedom from attending religious instruction or worship in certain educational institutions (Article 28).
RIGHT TO EQUALITY
1. Equality before Law and Equal Protection of Laws
Article 14 says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. This provision confers rights on all persons whether citizens or foreigners. Moreover, the word ‘person’ includes legal persons, viz, statutory corporations, companies, registered societies or any other type of legal person.
The concept of ‘equality before the law’ is of British origin while the concept of ‘equal protection of laws’ has been taken from the American Constitution. The first concept connotes: (a) the absence of any special privileges in favor of any person, (b) the equal subjection of all persons to the ordinary law of the land administered by ordinary law courts, and (c) no person (whether rich or poor, high or low, official or non-official) is above the law.
The second concept, on the other hand, connotes: (a) the equality of treatment under equal circumstances, both in the privileges conferred and liabilities imposed by the laws, (b) the similar application of the same laws to all persons who are similarly situated, and (c) the like should be treated alike without any discrimination. Thus, the former is a negative concept while the latter is a positive concept. However, both of them aim at establishing equality of legal status, opportunity and justice.
The Supreme Court held that where equals and unequals are treated differently, Article 14 does not apply. While Article 14 forbids class legislation, it permits reasonable classification of persons, objects, and transactions by the law. But the classification should not be arbitrary, artificial or evasive. Rather, it should be based on an intelligible differentia and substantial distinction.
Rule of Law The concept of ‘equality before the law’ is an element of the concept of ‘Rule of Law’, propounded by A.V. Dicey, the British jurist. His concept has the following three elements or aspects:
(i) The absence of arbitrary power, that is, no man can be punished except for a breach of the law. (ii) Equality before the law, that is, equal subjection of all citizens (rich or poor, high or low, official or non-official) to the ordinary law of the land administered by the ordinary law courts. (iii) The primacy of the rights of the individual, that is, the constitution is the result of the rights of the individual as defined and enforced by the courts of law rather than the constitution being the source of the individual rights.
The first and the second elements are applicable to the Indian System and not the third one. In the Indian System, the constitution is the source of the individual rights.
The Supreme Court held that the ‘Rule of Law’ as embodied in Article 14 is a ‘basic feature’ of the constitution. Hence, it cannot be destroyed even by an amendment.
Exceptions to Equality The rule of equality before the law is not absolute and there are constitutional and other exceptions to it. These are mentioned below:
The President of India and the Governor of States enjoy the following immunities (Article 361): (i) The President or the Governor is not answerable to any court for the exercise and performance of the powers and duties of his office. (ii) No criminal proceedings shall be instituted or continued against the President or the Governor in any court during his term of office. (iii) No process for the arrest or imprisonment of the President or the Governor shall be issued from any court during his term of office. (iv) No civil proceedings against the President or the Governor shall be instituted during his term of office in any court in respect of any act done by him in his personal capacity, whether before or after he entered upon his office, until the expiration of two months next after notice has been delivered to him.
No person shall be liable to any civil or criminal proceedings in any court in respect of the publication in a newspaper (or by radio or television) of a substantially true report of any proceedings of either House of Parliament or either House of the Legislature of a State (Article 361-A).
No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof (Article 105).
No member of the Legislature of a state shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof (Article 194).
Article 31-C is an exception to Article 14. It provides that the laws made by the state for implementing the Directive Principles contained in clause (b) or clause (c) of Article 39 cannot be challenged on the ground that they are violative of Article 14. The Supreme Court held that “where Article 31-C comes in, Article 14 goes out”.
The foreign sovereigns (rulers), ambassadors and diplomats enjoy immunity from criminal and civil proceedings.
The UNO and its agencies enjoy the diplomatic immunity.
2. Prohibition of Discrimination on Certain Grounds
Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. The two crucial words in this provision are ‘discrimination’ and ‘only’. The word ‘discrimination’ means ‘to make an adverse distinction with regard to’ or ‘to distinguish unfavorably from others’. The use of the word ‘only’ connotes that discrimination on other grounds is not prohibited.
The second provision of Article 15 says that no citizen shall be subjected to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex, or place of birth with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, road and places of public resort maintained wholly or partly by State funds or dedicated to the use of general public. This provision prohibits discrimination both by the State and private individuals, while the former provision prohibits discrimination only by the State.
There are three exceptions to this general rule of non-discrimination:
(a) The state is permitted to make any special provision for women and children. For example, reservation of seats for women in local bodies or provision of free education for children. (b) The state is permitted to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes. For example, reservation of seats or fee concessions in public educational institutions. (c) The state is empowered to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes or the scheduled tribes regarding their admission to educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions.
The last provision was added by the 93rd Amendment Act of 2005. In order to give effect to this provision, the Centre enacted the Central Educational Institutions (Reservation in Admission) Act, 2006, providing a quota of 27% for candidates belonging to the Other Backward Classes (OBCs) in all central higher educational institutions including the Indian Institutes of Technology (IITs) and the Indian Institutes of Management (IIMs). In April 2008, the Supreme Court upheld the validity of both, the Amendment Act and the OBC Quota Act. But, the Court directed the central government to exclude the ‘creamy layer’ (advanced sections) among the OBCs while implementing the law.
Creamy Layer The children of the following different categories of people belong to ‘creamy layer’ among OBCs and thus will not get the quota benefit :
Persons holding constitutional posts like President, Vice-President, Judges of SC and HCs, Chairman and Members of UPSC and SPSCs, CEC, CAG and so on.
Group ‘A’ / Class I and Group ‘B’ / Class II Officers of the All India, Central and State Services; and Employees holding equivalent posts in PSUs, Banks, Insurance Organisations, Universities etc., and also in private employment.
Persons who are in the rank of colonel and above in the Army and equivalent posts in the Navy, the Air Force and the Paramilitary Forces.
Professionals like doctors, lawyers, engineers, artists, authors, consultants and so on.
Persons engaged in trade, business and industry.
People holding agricultural land above a certain limit and vacant land or buildings in urban areas.
Persons having gross annual income of more than 4.5 lakhs or possessing wealth above the exemption limit. In 1993, when the “creamy layer” ceiling was introduced, it was1 lakh. It was subsequently revised to 2.5 lakh in 2004 and4.5 lakh in 2008. Presently (2013), the proposal to raise creamy layer ceiling to `6 lakh a year is under consideration of the government.
3. Equality of Opportunity in Public Employment Article 16 provides for equality of opportunity for all citizens in matters of employment or appointment to any office under the State. No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds of only religion, race, caste, sex, descent, place of birth or residence.
There are three exceptions to this general rule of equality of opportunity in public employment:
(a) Parliament can prescribe residence as a condition for certain employment or appointment in a state or union territory or local authority or other authority. As the Public Employment (Requirement as to Residence) Act of 1957 expired in 1974, there is no such provision for any state except Andhra Pradesh. (b) The State can provide for reservation of appointments or posts in favor of any backward class that is not adequately represented in the state services. (c) A law can provide that the incumbent of an office related to the religious or denominational institution or a member of its governing body should belong to the particular religion or denomination.
Mandal Commission and Aftermath In 1979, the Morarji Desai Government appointed the Second6 Backward Classes Commission under the chairmanship of BP Mandal, a Member of Parliament, in terms of Article 340 of the Constitution to investigate the conditions of the socially and educationally backward classes and suggest measures for their advancement. The commission submitted its report in 1980 and identified as many as 3743 castes as socially and educationally backward classes. They constitute nearly 52% component of the population, excluding the scheduled castes (SCs) and the scheduled tribes (STs). The commission recommended for reservation of 27% government jobs for the Other Backward Classes (OBCs) so that the total reservation for all ((SCs, STs and OBCs) amounts to 50%.7 It was after ten years in 1990 that the V P Singh Government declared reservation of 27% government jobs for the OBCs. Again in 1991, the Narasimha Rao Government introduced two changes: (a) preference to the poorer sections among the OBCs in the 27% quota, i.e., adoption of the economic criteria in granting reservation, and (b) reservation of another 10% of jobs for poorer (economically backward) sections of higher castes who are not covered by any existing schemes of reservation.
In the famous Mandal case8 (1992), the scope and extent of Article 16(4), which provides for reservation of jobs in favor of backward classes, has been examined thoroughly by the Supreme Court. Though the Court has rejected the additional reservation of 10% for poorer sections of higher castes, it upheld the constitutional validity of 27% reservation for the OBCs with certain conditions, viz,
(a) The advanced sections among the OBCs (the creamy layer) should be excluded from the list of beneficiaries of reservation. (b) No reservation in promotions; reservation should be confined to initial appointments only. Any existing reservation in promotions can continue for five years only (i.e., up to 1997). (c) The total reserved quota should not exceed 50% except in some extraordinary situations. This rule should be applied every year. (d) The ‘carry forward rule’ in case of unfilled (backlog) vacancies is valid. But it should not violate the 50% rule. (e) A permanent statutory body should be established to examine complaints of over-inclusion and under-inclusion in the list of OBCs.
With regard to the above rulings of the Supreme Court, the government has taken the following actions:
(a) Ram Nandan Committee was appointed to identify the creamy layer among the OBCs. It submitted its report in 1993, which was accepted. (b) National Commission for Backward Classes was established in 1993 by an act of Parliament. It considers inclusions in and exclusions from the lists of castes notified as backward for the purpose of job reservation. (c) In order to nullify the ruling with regard to reservation in promotions, the 77th Amendment Act was enacted in 1995. It added a new provision in Article 16 that empowers the State to provide for reservation in promotions of any services under the State in favor of the SCs and STs that are not adequately represented in the state services. Again, the 85th Amendment Act of 2001 provides for ‘consequential seniority’ in the case of promotion by virtue of the rule of reservation for the government servants belonging to the SCs and STs with retrospective effect from June 1995. (d) The ruling with regard to backlog vacancies was nullified by the 81st Amendment Act of It added another new provision in Article 16 that empowers the State to consider the unfilled reserved vacancies of a year as a separate class of vacancies to be filled up in any succeeding year or years. Such class of vacancies is not to be combined with the vacancies of the year in which they are being filled up to determine the ceiling of 50% reservation on the total number of vacancies of that year. In brief, it ends the 50% ceiling on the reservation in backlog vacancies. (e) The 76th Amendment Act of 1994 has placed the Tamil Nadu Reservations Act 9 of 1994 in the Ninth Schedule to protect it from judicial review as it provided for 69 percent of reservation, far exceeding the 50 percent ceiling.
Abolition of Untouchability
Article 17 abolishes ‘untouchability’ and forbids its practice in any form. The enforcement of any disability arising out of untouchability shall be an offense punishable in accordance with law.
In 1976, the Untouchability (Offences ) Act, 1955 has been comprehensively amended and renamed as the Protection of Civil Rights Act, 1955 to enlarge the scope and make penal provisions more stringent. The act defines civil right as any right accruing to a person by reason of the abolition of untouchability by Article 17 of the Constitution.
The term ‘untouchability’ has not been defined either in the Constitution or in the Act. However, the Mysore High Court held that the subject matter of Article 17 is not untouchability in its literal or grammatical sense but the ‘practice as it had developed historically in the country’. It refers to the social disabilities imposed on certain classes of persons by reason of their birth in certain castes. Hence, it does not cover the social boycott of a few individuals or their exclusion from religious services, etc.
Under the Protection of Civil Rights Act (1955), the offenses committed on the ground of untouchability is punishable either by imprisonment up to six months or by fine up to `500 or both. A person convicted of the offense of ‘untouchability’ is disqualified for election to the Parliament or state legislature. The act declares the following acts as offences:
(a) preventing any person from entering any place of public worship or from worshipping therein; (b) justifying untouchability on traditional, religious, philosophical or other grounds; (c) denying access to any shop, hotel or places of public entertainment; (d) insulting a person belonging to scheduled caste on the ground of untouchability; (e) refusing to admit persons in hospitals, educational institutions or hostels established for public benefit; (f) preaching untouchability directly or indirectly; and (g) refusing to sell goods or render services to any person.
The Supreme Court held that the right under Article 17 is available against private individuals and it is the constitutional obligation of the State to take necessary action to ensure that this right is not violated.
Abolition of Titles
Article 18 abolishes titles and makes four provisions in that regard: (a) It prohibits the state from conferring any title (except military or academic distinction) on anybody, whether a citizen or a foreigner. (b) It prohibits a citizen of India from accepting any title from any foreign state. (c) A foreigner holding any office of profit or trust under the state cannot accept any title from any foreign state without the consent of the president. (d) No citizen or foreigner holding any office of profit or trust under the State is to accept any present, emolument or office from or under any foreign State without the consent of the president.
From the above, it is clear that the hereditary titles of nobility like Maharaja, Raj Bahadur, Rai Bahadur, Rai Saheb, Dewan Bahadur, etc, which were conferred by colonial States are banned by Article 18 as these are against the principle of equal status of all.
In 1996, the Supreme Court upheld the constitutional validity of the National Awards—Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Sri. It ruled that these awards do not amount to ‘titles’ within the meaning of Article 18 that prohibits only hereditary titles of nobility. Therefore, they are not violative of Article 18 as the theory of equality does not mandate that merit should not be recognised. However, it also ruled that they should not be used as suffixes or prefixes to the names of awardees. Otherwise, they should forfeit the awards.
These National Awards were instituted in 1954. The Janata Party government headed by Morarji Desai discontinued them in 1977. But they were again revived in 1980 by the Indira Gandhi government.
RIGHT TO FREEDOM
Protection of Six Rights
Article 19 guarantees to all citizens the six rights. These are:
(i) Right to freedom of speech and expression. (ii) Right to assemble peaceably and without arms. (iii) Right to form associations or unions or co-operative societies.10a (iv) Right to move freely throughout the territory of India. (v) Right to reside and settle in any part of the territory of India. (vi) Right to practice any profession or to carry on any occupation, trade or business.
Originally, Article 19 contained seven rights. But, the right to acquire, hold and dispose of property was deleted by the 44th Amendment Act of 1978.
These six rights are protected against only state action and not private individuals. Moreover, these rights are available only to the citizens and to shareholders of a company but not to foreigners or legal persons like companies or corporations, etc.
The State can impose ‘reasonable’ restrictions on the enjoyment of these six rights only on the grounds mentioned in Article 19 itself and not on any other grounds.
Freedom of Speech and Expression It implies that every citizen has the right to express his views, opinions, belief and convictions freely by word of mouth, writing, printing, picturing or in any other manner. The Supreme Court held that the freedom of speech and expression includes the following:
(a) Right to propagate one’s views as well as views of others. (b) Freedom of the press. (c) Freedom of commercial advertisements. (d) Right against tapping of telephonic conversation. (e) Right to telecast, that is, the government has no monopoly on electronic media. (f) Right against bundh called by a political party or organization. (g) Right to know about government activities. (h) Freedom of silence. (i) Right against the imposition of pre-censorship on a newspaper. (j) Right to demonstration or picketing but not right to strike.
The State can impose reasonable restrictions on the exercise of the freedom of speech and expression on the grounds of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to an offence.
Freedom of Assembly Every citizen has the right to assemble peaceably and without arms. It includes the right to hold public meetings, demonstrations and take out processions. This freedom can be exercised only on public land and the assembly must be peaceful and unarmed. This provision does not protect violent, disorderly, riotous assemblies, or one that causes the breach of public peace or one that involves arms. This right does not include the right to strike.
The State can impose reasonable restrictions on the exercise of the right of assembly on two grounds, namely, sovereignty and integrity of India and public order including the maintenance of traffic in the area concerned.
Under Section 144 of Criminal Procedure Code (1973), a magistrate can restrain an assembly, meeting or procession if there is a risk of obstruction, annoyance or danger to human life, health or safety or a disturbance of the public tranquillity or a riot or any affray.
Under Section 141 of the Indian Penal Code, an assembly of five or more persons becomes unlawful if the object is (a) to resist the execution of any law or legal process; (b) to forcibly occupy the property of some person; (c) to commit any mischief or criminal trespass; (d) to force some person to do an illegal act; and (e) to threaten the government or its officials on exercising lawful powers.
Freedom of Association All citizens have the right to form associations or unions or co-operative societies10b. It includes the right to form political parties, companies, partnership firms, societies, clubs, organizations, trade unions or any body of persons. It not only includes the right to start an association or union but also to continue with the association or union as such. Further, it covers the negative right of not to form or join an association or union.
Reasonable restrictions can be imposed on the exercise of this right by the State on the grounds of sovereignty and integrity of India, public order and morality. Subject to these restrictions, the citizens have complete liberty to form associations or unions for pursuing lawful objectives and purposes. However, the right to obtain recognition of the association is not a fundamental right.
The Supreme Court held that the trade unions have no guaranteed right to effective bargaining or right to strike or right to declare a lock-out. The right to strike can be controlled by an appropriate industrial law.
Freedom of Movement This freedom entitles every citizen to move freely throughout the territory of the country. He can move freely from one state to another or from one place to another within a state. This right underlines the idea that India is one unit so far as the citizens are concerned. Thus, the purpose is to promote national feeling and not parochialism.
The grounds of imposing reasonable restrictions on this freedom are two, namely, the interests of the general public and the protection of interests of any scheduled tribe. The entry of outsiders in tribal areas is restricted to protect the distinctive culture, language, customs and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation.
The Supreme Court held that the freedom of movement of prostitutes can be restricted on the ground of public health and in the interest of public morals. The Bombay High Court validated the restrictions on the movement of persons affected by AIDS.
The freedom of movement has two dimensions, viz, internal (right to move inside the country) and external (right to move out of the country and the right to come back to the country). Article 19 protects only the first dimension. The second dimension is dealt with by Article 21 (right to life and personal liberty).
Freedom of Residence Every citizen has the right to reside and settle in any part of the territory of the country. This right has two parts: (a) the right to reside in any part of the country, which means to stay at any place temporarily, and (b) the right to settle in any part of the country, which means to set up a home or domicile at any place permanently.
This right is intended to remove internal barriers within the country or between any of its parts. This promotes nationalism and avoids narrow mindedness.
The State can impose reasonable restrictions on the exercise of this right on two grounds, namely, the interest of the general public and the protection of interests of any scheduled tribes. The right of outsiders to reside and settle in tribal areas is restricted to protect the distinctive culture, language, customs and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation. In many parts of the country, the tribals have been permitted to regulate their property rights in accordance with their customary rules and laws.
The Supreme Court held that certain areas can be banned for certain kinds of persons like prostitutes and habitual offenders.
From the above, it is clear that the right to residence and the right to movement are overlapping to some extent. Both are complementary to each other.
Freedom of Profession, etc. All citizens are given the right to practice any profession or to carry on any occupation, trade or business. This right is very wide as it covers all the means of earning one’s livelihood.
The State can impose reasonable restrictions on the exercise of this right in the interest of the general public. Further, the State is empowered to: (a) prescribe professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business; and (b) carry on by itself any trade, business, industry or service whether to the exclusion (complete or partial) of citizens or otherwise.
Thus, no objection can be made when the State carries on a trade, business, industry or service either as a monopoly (complete or partial) to the exclusion of citizens (all or some only) or in competition with any citizen. The State is not required to justify its monopoly.
This right does not include the right to carry on a profession or business or trade or occupation that is immoral (trafficking in women or children) or dangerous (harmful drugs or explosives, etc,). The State can absolutely prohibit these or regulate them through licencing.
Protection in Respect of Conviction for Offences
Article 20 grants protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal people like a company or a corporation. It contains three provisions in that direction:
(a) No ex-post-facto law: No person shall be (i) convicted of any offense except for violation of a law in force at the time of the commission of the act, or (ii) subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the act. (b) No double jeopardy: No person shall be prosecuted and punished for the same offense more than once. (c) No self-incrimination: No person accused of any offense shall be compelled to be a witness against himself.
An ex-post-facto law is one that imposes penalties retrospectively (retroactively), that is, upon acts already done or which increases the penalties for such acts. The enactment of such a law is prohibited by the first provision of Article 20. However, this limitation is imposed only on criminal laws and not on civil laws or tax laws. In other words, civil liability or a tax can be imposed retrospectively. Further, this provision prohibits only a conviction or sentence under an ex-post-facto criminal law and not the trial thereof. Finally, the protection (immunity) under this provision cannot be claimed in case of preventive detention or demanding security from a person.
The protection against double jeopardy is available only in proceedings before a court of law or a judicial tribunal. In other words, it is not available in proceedings before departmental or administrative authorities as they are not of judicial nature.
The protection against self-incrimination extends to both oral evidence and documentary evidence. However, it does not extend to (i) compulsory production of material objects, (ii) compulsion to give thumb impression, specimen signature, blood specimens, and (iii) compulsory exhibition of the body. Further, it extends only to criminal proceedings and not to civil proceedings or proceedings which are not of criminal nature.
Protection of Life and Personal Liberty
Article 21 declares that no person shall be deprived of his life or personal liberty except according to procedure established by law. This right is available to both citizens and non-citizens.
In the famous Gopalan case11 (1950), the Supreme Court has taken a narrow interpretation of Article 21. It held that the protection under Article 21 is available only against arbitrary executive action and not from arbitrary legislative action. This means that the State can deprive the right to life and personal liberty of a person based on law. This is because of the expression ‘procedure established by law’ in Article 21, which is different from the expression ‘due process of law’ contained in the American Constitution. Hence, the validity of a law that has prescribed a procedure cannot be questioned on the ground that the law is unreasonable, unfair or unjust. secondly, the Supreme Court held that the ‘personal liberty’ means only liberty relating to the person or body of the individual. But, in Menaka case (1978), the Supreme Court overruled its judgment in the Gopalan case by taking a wider interpretation of Article 21. Therefore, it ruled that the right to life and personal liberty of a person can be deprived by law provided the procedure prescribed by that law is reasonable, fair and just. In other words, it has introduced the American expression ‘due process of law’. In effect, the protection under Article 21 should be available not only against arbitrary executive action but also against arbitrary legislative action. Further, the court held that the ‘right to life’ as embodied in Article 21 is not merely confined to animal existence or survival but it includes within its ambit the right to live with human dignity and all those aspects of life which go to make a man’s life meaningful, complete and worth living. It also ruled that the expression ‘Personal Liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights that go to constitute the personal liberties of a man.
The Supreme Court has reaffirmed its judgment in the Menaka case in subsequent cases. It has declared the following rights as part of Article 21: (a) Right to live with human dignity. (b) Right to decent environment including pollution free water and air and protection against hazardous industries. (c) Right to livelihood. (d) Right to privacy. (e) Right to shelter. (f) Right to health. (g) Right to free education up to 14 years of age. (h) Right to free legal aid. (i) Right against solitary confinement. (j) Right to speedy trial. (k) Right against handcuffing. (l) Right against inhuman treatment. (m) Right against delayed execution. (n) Right to travel abroad. (o) Right against bonded labour. (p) Right against custodial harassment. (q) Right to emergency medical aid. (r) Right to timely medical treatment in government hospital. (s) Right not to be driven out of a state. (t) Right to fair trial. (u) Right of prisoner to have necessities of life. (v) Right of women to be treated with decency and dignity. (w) Right against public hanging. (x) Right to hearing. (y) Right to information. (z) Right to reputation.
4. Right to Education
Article 21 A declares that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may determine. Thus, this provision makes only elementary education a Fundamental Right and not higher or professional education.
This provision was added by the 86th Constitutional Amendment Act of 2002. This amendment is a major milestone in the country’s aim to achieve ‘Education for All’. The government described this step as ‘the dawn of the second revolution in the chapter of citizens’ rights’.
Even before this amendment, the Constitution contained a provision for free and compulsory education for children under Article 45 in Part IV. However, being a directive principle, it was not enforceable by the courts. Now, there is scope for judicial intervention in this regard.
This amendment changed the subject matter of Article 45 in directive principles. It now reads—‘The state shall endeavor to provide early childhood care and education for all children until they complete the age of six years.’ It also added a new fundamental duty under Article 51A that reads —‘It shall be the duty of every citizen of India to provide opportunities for education to his child or ward between the age of six and fourteen years’.
In 1993 itself, the Supreme Court recognized a Fundamental Right to primary education in the right to life under Article 21. It held that every child or citizen of this country has a right to free education until he completes the age of 14 years. Thereafter, his right to education is subject to the limits of economic capacity and development of the state. In this judgment, the Court overruled its earlier judgement (1992) which declared that there was a fundamental right to education up to any level including professional education like medicine and engineering.
In pursuance of Article 21A, the Parliament enacted the Right of Children to Free and Compulsory Education (RTE) Act, 2009. This Act seeks to provide that every child has a right to be provided full-time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards. This legislation is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society can be achieved only through the provision of inclusive elementary education to all.
Protection Against Arrest and Detention
Article 22 grants protection to persons who are arrested or detained. Detention is of two types, namely, punitive and preventive. Punitive detention is to punish a person for an offence committed by him after trial and conviction in a court. Preventive detention, on the other hand, means detention of a person without trial and conviction by a court. Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future. Thus, preventive detention is only a precautionary measure and based on suspicion.
Article 22 has two parts—the first part deals with the cases of ordinary law and the second part deals with the cases of preventive detention law. (a) The first part of Article 22 confers the following rights on a person who is arrested or detained under an ordinary law: (i) Right to be informed of the grounds of arrest. (ii) Right to consult and be defended by a legal practitioner. (iii) Right to be produced before a magistrate within 24 hours, excluding the journey time. (iv) Right to be released after 24 hours unless the magistrate authorizes further detention.
These safeguards are not available to an alien or a person arrested or detained under a preventive detention law.
The Supreme Court also ruled that the arrest and detention in the first part of Article 22 do not cover arrest under the orders of a court, civil arrest, arrest on failure to pay the income tax, and deportation of an alien. They apply only to an act of a criminal or quasi-criminal nature or some activity prejudicial to public interest.
(b) The second part of Article 22 grants protection to persons who are arrested or detained under a preventive detention law. This protection is available to both citizens as well as aliens and includes the following: (i) The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention. The board is to consist of judges of a high court. (ii) The grounds of detention should be communicated to the detenu. However, the facts considered to be against the public interest need not be disclosed. (iii) The detenu should be afforded an opportunity to make a representation against the detention order.
Article 22 also authorises the Parliament to prescribe (a) the circumstances and the classes of cases in which a person can be detained for more than three months under a preventive detention law without obtaining the opinion of an advisory board; (b) the maximum period for which a person can be detained in any classes of cases under a preventive detention law, and the procedure to be followed by an advisory board in an inquiry.
The 44th Amendment Act of 1978 has reduced the period of detention without obtaining the opinion of an advisory board from three to two months. However, this provision has not yet been brought into force, hence, the original period of three months still continues.
The Constitution has divided the legislative power with regard to preventive detention between the Parliament and the state legislatures. The Parliament has exclusive authority to make a law of preventive detention for reasons connected with defense foreign affairs and the security of India. Both the Parliament as well as the state legislatures can concurrently make a law of preventive detention for reasons connected with the security of a state, the maintenance of public order and the maintenance of supplies and services essential to the community.
The preventive detention laws made by the Parliament are: (a) Preventive Detention Act, 1950. Expired in 1969. (b) Maintenance of Internal Security Act (MISA), 1971. Repealed in 1978. (c) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974. (d) National Security Act (NASA), 1980. (e) Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act (PBMSECA), 1980. (f) Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985. Repealed in 1995. (g) Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988. (h) Prevention of Terrorism Act (POTA), 2002. Repealed in 2004.
It is unfortunate to know that no democratic country in the world has made preventive detention as an integral part of the Constitution as has been done in India. It is unknown in the USA. It was resorted to in Britain only during first and second world war time. In India, preventive detention existed even during the British rule. For example, the Bengal State Prisoners Regulation of 1818 and the Defence of India Act of 1939 provided for preventive detention.
RIGHT AGAINST EXPLOITATION
Prohibition of Traffic in Human Beings and Forced Labour
Article 23 prohibits traffic in human beings, begar (forced labor) and other similar forms of forced labor. Any contravention of this provision shall be an offence punishable in accordance with law. This right is available to both citizens and non-citizens. It protects the individual not only against the State but also against private persons.
The expression ‘traffic in human beings’ include (a) selling and buying of men, women, and children like goods; (b) immoral traffic in women and children, including prostitution; (c) devadasis; and (d) slavery. To punish these acts, the Parliament has made the Immoral Traffic (Prevention) Act, 1956.
The term ‘begar ’ means compulsory work without remuneration. It was a peculiar Indian system under which the local zamindars sometimes used to force their tenants to render services without any payment. In addition to begar, Article 23 prohibits other ‘similar forms of forced labor’ like ‘bonded labor’. The term ‘forced labor’ means compelling a person to work against his will. The word ‘force’ includes not only physical or legal force but also force arising from the compulsion of economic circumstances, that is, working for less than the minimum wage. In this regard, the Bonded Labour System (Abolition) Act, 1976; the Minimum Wages Act, 1948; the Contract Labour Act, 1970 and the Equal Remuneration Act, 1976 were made.
Article 23 also provides for an exception to this provision. It permits the State to impose compulsory service for public purposes, as for example, military service or social service, for which it is not bound to pay. However, in imposing such service, the State is not permitted to make any discrimination on grounds only of religion, race, caste or class.
Prohibition of Employment of Children in Factories, etc.
Article 24 prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous activities like construction work or railway. But it does not prohibit their employment in any harmless or innocent work.
The Child Labour (Prohibition and Regulation) Act, 1986, is the most important law in this direction. In addition, the Employment of Children Act, 1938; the Factories Act, 1948; the Mines Act, 1952; the Merchant Shipping Act, 1958; the Plantation Labour Act, 1951; the Motor Transport Workers Act, 1951; Apprentices Act, 1961; the Bidi and Cigar Workers Act, 1966; and other similar acts prohibit the employment of children below certain age.
In 1996, the Supreme Court directed the establishment of Child Labour Rehabilitation Welfare Fund in which the offending employer should deposit a fine of `20,000 for each child employed by him. It also issued directions for the improvement of education, health, and nutrition of children.
The Commissions for Protection of Child Rights Act, 2005 was enacted to provide for the establishment of a National Commission and State Commissions for Protection of Child Rights and Children’s Courts for providing a speedy trial of offenses against children or of violation of child rights.
In 2006, the government banned the employment of children as domestic servants or workers in business establishments like hotels, dhabas, restaurants, shops, factories, resorts, spas, tea-shops and so on. It warned that anyone employing children below 14 years of age would be liable for prosecution and penal action.
Total Ban on Child Labour
In August 2012, the Union Cabinet approved a proposal to completely ban employment of children below 14 years in all occupations and processes.
The Child Labour (Prohibition & Regulation) Act, 1986, will be amended to incorporate the changes and will be renamed a Child and Adolescent Labour (Prohibition) Act. Giving more teeth to the Act, offences under it have been made cognizable and the punishment has been increased.
Presently, children under the age of 14 are prohibited from employment in “hazardous occupations and processes” while their conditions of work in non-hazardous occupations and processes are merely regulated.
The amendments include increasing the age of prohibition for the employment of children and adolescents in hazardous occupations, such as mining, from 14 to 18. Employment of children below 14 years is presently prohibited in 18 occupations and 65 processes.
The maximum punishment for offences under the Act has been increased from one year to two years of imprisonment and from 20,00 to50,000 fine or both. For repeated offences, it has been raised to three years of imprisonment.
RIGHT TO FREEDOM OF RELIGION
Freedom of Conscience and Free Profession, Practice and Propagation of Religion
Article 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. The implications of these are: (a) Freedom of conscience: Inner freedom of an individual to mold his relation with God or Creatures in whatever way he desires. (b) Right to profess Declaration of one’s religious beliefs and faith openly and freely. (c) Right to practice Performance of religious worship, rituals, ceremonies, and exhibition of beliefs and ideas. (d) Right to propagate: Transmission and dissemination of one’s religious beliefs to others or exposition of the tenets of one’s religion. But, it does not include a right to convert another person to one’s own religion. Forcible conversions impinge on the ‘freedom of conscience’ guaranteed to all the persons alike.
From the above, it is clear that Article 25 covers not only religious beliefs (doctrines) but also religious practices (rituals). Moreover, these rights are available to all persons—citizens as well as non-citizens.
However, these rights are subject to public order, morality, health and other provisions relating to fundamental rights. Further, the State is permitted to: (a) regulate or restrict any economic, financial, political or other secular activity associated with religious practice; and (b) provide for social welfare and reform or throw open Hindu religious institutions of a public character to all classes and sections of Hindus.
Article 25 also contains two explanations: one, wearing and carrying of kirpans is to be included in the profession of the Sikh religion; and two, the Hindus, in this context, include Sikhs, Jains, and Buddhists.
Freedom to Manage Religious Affairs
According to Article 26, every religious denomination or any of its section shall have the following rights:
(a) Right to establish and maintain institutions for religious and charitable purposes; (b) Right to manage its own affairs in matters of religion; (c) Right to own and acquire movable and immovable property; and (d) Right to administer such property in accordance with law.
Article 25 guarantees the rights of individuals, while Article 26 guarantees the rights of religious denominations or their sections. In other words, Article 26 protects collective freedom of religion. Like the rights under Article 25, the rights under Article 26 are also subject to public order, morality and health but not subject to other provisions relating to the Fundamental Rights.
The Supreme Court held that a religious denomination must satisfy three conditions: (a) It should be a collection of individuals who have a system of beliefs (doctrines) which they regard as conducive to their spiritual well-being; (b) It should have a common organisation; and (c) It should be designated by a distinctive name.
Under the above criteria, the Supreme Court held that the ‘Ramakrishna Mission’ and ‘Ananda Marga’ are religious denominations within the Hindu religion. It also held that Aurobindo Society is not a religious denomination.
Freedom from Taxation for Promotion of a Religion
Article 27 lays down that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination. In other words, the State should not spend the public money collected by way of tax for the promotion or maintenance of any particular religion. This provision prohibits the State from favoring, patronizing and supporting one religion over the other. This means that the taxes can be used for the promotion or maintenance of all religions.
This provision prohibits the only levy of a tax and not a fee. This is because the purpose of a fee is to control secular administration of religious institutions and not to promote or maintain religion. Thus, a fee can be levied on pilgrims to provide them some special service or safety measures. Similarly, a fee can be levied on religious endowments for meeting the regulation expenditure.
Freedom from Attending Religious Instruction
Under Article 28, no religious instruction shall be provided in any educational institution wholly maintained out of State funds. However, this provision shall not apply to an educational institution administered by the State but established under any endowment or trust, requiring imparting of religious instruction in such institution.
Further, no person attending any educational institution recognized by the State or receiving aid out of State funds shall be required to attend any religious instruction or worship in that institution without his consent. In case of a minor, the consent of his guardian is needed.
Thus, Article 28 distinguishes between four types of educational institutions:
(a) Institutions wholly maintained by the State. (b) Institutions administered by the State but established under any endowment or trust. (c) Institutions recognized by the State. (d) Institutions receiving aid from the State.
In (a) religious instruction is completely prohibited while in (b), religious instruction is permitted. In (c) and (d), religious instruction is permitted on a voluntary basis.
CULTURAL AND EDUCATIONAL RIGHTS
1. Protection of Interests of Minorities
Article 29 provides that any section of the citizens residing in any part of India having a distinct language, script or culture of its own, shall have the right to conserve the same. Further, 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, or language.
The first provision protects the right of a group while the second provision guarantees the right of a citizen as an individual irrespective of the community to which he belongs.
Article 29 grants protection to both religious minorities as well as linguistic minorities. However, the Supreme Court held that the scope of this article is not necessarily restricted to minorities only, as it is commonly assumed to be. This is because of the use of words ‘section of citizens’ in the Article that include minorities as well as the majority.
The Supreme Court also held that the right to conserve the language includes the right to agitate for the protection of the language. Hence, the political speeches or promises made for the conservation of the language of a section of the citizens does not amount to a corrupt practice under the Representation of the People Act, 1951.
Right of Minorities to Establish and Administer Educational Institutions
Article 30 grants the following rights to minorities, whether religious or linguistic:
(a) All minorities shall have the right to establish and administer educational institutions of their choice. (b) The compensation amount fixed by the State for the compulsory acquisition of any property of a minority educational institution shall not restrict or abrogate the right guaranteed to them. This provision was added by the 44th Amendment Act of 1978 to protect the right of minorities in this regard. The Act deleted the right to property as a Fundamental Right (Article 31). (c) In granting aid, the State shall not discriminate against any educational institution managed by a minority.
Thus, the protection under Article 30 is confined only to minorities (religious or linguistic) and does not extend to any section of citizens (as under Article 29). However, the term ‘minority’ has not been defined anywhere in the Constitution.
The right under Article 30 also includes the right of a minority to impart education to its children in its own language.
Minority educational institutions are of three types: (a) institutions that seek recognition as well as aid from the State; (b) institutions that seek only recognition from the State and not aid; and (c) institutions that neither seek recognition nor aid from the State.
The institutions of first and second type are subject to the regulatory power of the state with regard to syllabus prescription, academic standards, discipline, sanitation, employment of teaching staff and so on. The institutions of third type are free to administer their affairs but subject to operation of general laws like contract law, labour law, industrial law, tax law, economic regulations, and so on.
RIGHT TO CONSTITUTIONAL REMEDIES
A mere declaration of fundamental rights in the Constitution is meaningless, useless and worthless without providing effective machinery for their enforcement, if and when they are violated. Hence, Article 32 confers the right to remedies for the enforcement of the fundamental rights of an aggrieved citizen. In other words, the right to get the Fundamental Rights protected is in itself a fundamental right. This makes the fundamental rights real. That is why Dr. Ambedkar called Article 32 as the most important article of the Constitution—‘an Article without which this constitution would be a nullity. It is the very soul of the Constitution and the very heart of it’. The Supreme Court has ruled that Article 32 is a basic feature of the Constitution. Hence, it cannot be abridged or taken away even by way of an amendment to the Constitution. It contains the following four provisions:
(a) The right to move the Supreme Court by appropriate proceedings for the enforcement of the Fundamental Rights is guaranteed. (b) The Supreme Court shall have power to issue directions or orders or writs for the enforcement of any of the fundamental rights. The writs issued may include habeas corpus, mandamus, prohibition, certiorari and quo-warranto. (c) Parliament can empower any other court to issue directions, orders and writs of all kinds. However, this can be done without prejudice to the above powers conferred on the Supreme Court. Any other court here does not include high courts because Article 226 has already conferred these powers on the high courts. (d) The right to move the Supreme Court shall not be suspended except as otherwise provided for by the Constitution. Thus the Constitution provides that the President can suspend the right to move any court for the enforcement of the fundamental rights during a national emergency (Article 359).
It is thus clear that the Supreme Court has been constituted as the defender and guarantor of the fundamental rights of the citizens. It has been vested with the ‘original’ and ‘wide’ powers for that purpose. Original, because an aggrieved citizen can directly go to the Supreme Court, not necessarily by way of appeal. Wide, because its power is not restricted to issuing of orders or directions but also writs of all kinds.
The purpose of Article 32 is to provide a guaranteed, effective, expedious, inexpensive and summary remedy for the protection of the fundamental rights. Only the Fundamental Rights guaranteed by the Constitution can be enforced under Article 32 and not any other right like non-fundamental constitutional rights, statutory rights, customary rights and so on. The violation of a fundamental right is the sine qua non for the exercise of the right conferred by Article 32. In other words, the Supreme Court, under Article 32, cannot determine a question that does not involve Fundamental Rights. Article 32 cannot be invoked simply to determine the constitutionality of an executive order or a legislation unless it directly infringes any of the fundamental rights.
In case of the enforcement of Fundamental Rights, the jurisdiction of the Supreme Court is original but not exclusive. It is concurrent with the jurisdiction of the high court under Article 226. It vests original powers in the high court to issue directions, orders, and writs of all kinds for the enforcement of the Fundamental Rights. It means when the Fundamental Rights of a citizen are violated, the aggrieved party has the option of moving either the high court or the Supreme Court directly.
Since the right guaranteed by Article 32 (ie, the right to move the Supreme Court where a fundamental right is infringed) is in itself a fundamental right, the availability of alternate remedy is no bar to relief under Article 32. However, the Supreme Court has ruled that where relief through high court is available under Article 226, the aggrieved party should first move the high court.