Fundamental rights

Fundamental rights

A fundamental right is defined as an interest protected by the superior or basic law of the land. The inclusion of Fundamental Rights in the Constitution provide these rights a sanctified place that prohibits unreasonable interference of State in their exercise and also prevent the legislature and the executive from becoming arbitrary or authoritarian. Thus, these rights act as limitations on the State.

The nature of fundamental rights

(1) They are enjoyed by the individual.

(2) They are justice able rights and are enforceable by the Court of law.

(3) The Fundamental Rights are enforceable against the State not against an individual. But certain rights are enforceable against both individual and state like:

· Right against exploitation (Article 23 and 24)

· Right against untouchability (Article 17)

· Right to Freedom of Movement {Article 19(d)}

(4) They are called the limitations upon the State because they check the power of State. They are also called Negative Obligation on State because most of them are negatively worded like ‘State shall not’.

(5) The Fundamental Rights granted to individuals under the Constitution are not absolute rights, but they are “Restrictive Rights”. The Constitution lists may grounds on which these rights can be restricted:

(i) Maintenance of Sovereignty and Integrity of the Country.(INTERNAL SECURITY)

(ii) Maintenance of friendly relations with foreign States.(FOREIGN RELATION)

(iii) Maintenance of Public Order, Morality and decency.(LAW AND ORDER)

(iv) Promotion of the interest of any socially and educationally backward classes of citizens or the Schedule Castes and the Schedule Tribes.(SOCIAL EMPOWERMENT)

(v) Promotion of the interest of Women and children. (SOCIAL EMPOWERMENT)

These Rights can be restricted by the State (Parliament) but only by means of law. It is for the Supreme Court and High Courts to decide whether the restriction imposed are reasonable or not.

During National Emergency, all the Fundamental Rights (except that relating to Art 20 and 21) can be suspended.

(6) The Fundamental Rights seek to develop the Political Democracy in the country.

Difference between Fundamental Rights and other legal Rights

(i) Both are justice-able, but they differ in the enforceability while an ordinary law is protected by ordinary law of land, a Fundamental Rights is protected and guaranteed by the Constitution i.e., in the case of violation of Fundamental Rights of an individual, the aggrieved person can approach the Supreme Court directly to getting his grievances redressed. Whereas in case of violation of any legal right, the aggrieved person may have his relief by filing an ordinary suit in the subordinate Courts or by a Writ application to the High court.

(ii) An ordinary legal right can be changed by the legislature in its ordinary process, the Fundamental Rights can be amended only be a Special Majority (Article 368).

(iii) An ordinary legal right can be suspended or abridged by law of legislature, but Fundamental Rights cannot be suspended on abridged except in the manners laid down in the Constitution itself.

Amendability of Fundamental Rights

Article 13(2) of the Constitution states that the State shall not make any law which takes away or abridge the Fundamental Rights. The question is whether the ‘law’ as used in Article 13(2) includes the constitutional Amendment Acts or not? If an Amendment Act is not covered under ‘law’, then the Parliament can amend any or all of the Fundamental Rights, otherwise the Fundamental Rights are not amendable.

The Supreme Court in Shankari Prasad Vs Union of India (1951) case held that under the Constitution the government enjoys two types of legislature powers:

(1) Ordinary Legislative Power (to make law)

(2) Constituent Legislative Power (to amend the constitution)

The Amendment act is not a law, thus the Parliament can amend any Fundamental Rights by using Constitutional legislative power. The Supreme Court gave similar verdict in Sajjan Singh Vs State of Rajasthan (1965) Case.

However in Golaknath Vs State of Punjab (1967) case the Supreme Court overruled its earlier decision and held that the Fundamental Rights had been given a transcendental position’ by the constitution, so that no authority functioning under the constitution including the Parliament.

By the 24th Amendment Act 1975 the Parliament amended Articles 13 and 368 to make it clear that Parliament has the power to amend any part of the constitution including Part III of the constitution and the word ‘law’ in Article 13(2) does not include a constitutional Amendment Act.

The 24th Amendment Act was challenged before the Supreme Court in the Keshavananda Bharati v/s. State of Kerala case in 1979. It upheld the validity of 24th Amendment Act and the Parliament under Article  368 has the power to amend any part of the constitution including the Fundamental Rights. However, the Court held that the Parliament’s amendment power is limited and is subject to “Basic Structure” of the constitution. The constitution has some basic structure which cannot be destroyed.

The Supreme Court has not explicitly defined the term “Basic Structure”. However in various judgments by the Supreme Court has held that following concepts are part of the Basic Structure of the Constitution:

(1) Supremacy of the constitution

(2) Republican and democratic form of Government

(3) Secular character of the constitution

(4) Federalism

(5) Separation of power between the legislative, judge of executive

(6) The mandate to build a welfare State

(7) Power of Judicial Review

Right to Equality (Article 14-18)

The constitution classifies the Fundamental Rights into following six categories:-

(1) Right to Equality (Article 14-18)

(2) Right to Freedom (Article 19-22)

(3) Right against Exploitation (Article 23-24)

(4) Right to Freedom of Religion (Article 25-28)

(5) Cultural and Educational Rights (Article 29 and 30)

(6) Right to constitutional Remedies (Article 32)

In this section the first set of Fundamental Rights i.e. Right to Equality would be covered Right to Equality (Article 14 to 18)

Article 14

It is the core article under Right to Equality. It deals with two kinds of rights. It states that the State shall not deny to any person

(a) Right to equality before the law.

(b) Right to Equal Protection before the law.

(A) Right to Equality before the law

It is a negative concept because it means that no man is above the law or in other words all individualsare subject to the Law of the land. Rule of law means the absolute supremacy of ordinary law of land as opposed to the influence of arbitrary power of the ruler.

The three principles which govern the Rule of law are:

(I) No man shall be punished either in body or goods (material) except for the violation of law in force. Further, the violation of law shall be established in an ordinary court of land in an ordinary legal manner.

(II) All individuals irrespective of their social or economic understanding are subject to ordinary law of land.Further, all the individuals are subject to the jurisdiction of the court. I.e. all individuals can be sued before the court. A person can appear before the court in form of attorney or himself.

(III) The constitution is the result of ordinary Law of land.

However the third rule had been modified in its application under the Indian constitution where the third law reads as the Constitution is Supreme law of Land and all laws passed by the legislature shallconform to it to be legally valid.

Significance of Rule of law

(i) It is the adoption of rule of law that has changed the constitution from Rex Lex (king is law) to Lex Rex (Law is king)

(ii) The rule of law is essential to maintain an individual’s liberty. Therefore Rule of law is an essential feature of democracy.

Protection of Rule of Law

The constitution under article 32 and 226 confers the power on Supreme Court and the High Court’s respectively to safeguard the Rule of law by exercising the writ jurisdictions. Further the constitution emphasizes that the Rule of Law is an immutable Principle of Governance of the Country.

In Keshavananda Bharati Vs State of Kerala, 1973 case Supreme Court held that the Rule of Law is a part of basic structure of the constitution and cannot be destroyed.

Exceptions to the Rule of Law

(1) Article 361- The President or the Governor of State is not answerable to a court of law with regard to exercise of its executive functions.

(2) No criminal proceedings whatsoever can be instituted against the President and Governor of State during his/her term of office. He should be first remove impeached to continue the proceedings against him.

(3) No civil proceedings in which relief is claimed can be instituted against the President or the Governor of State in a court, except of the expiry under a 2 month notice served on the President and Governor.

(4) According to the International Laws- The visiting subject to the jurisdiction of local court.

(B) Equiprotection before Law

(1) It originated as a concept in USA.

(2) It is a positive concept.

(3) It means equality of treatment in equal circumstances. Among equals the law shall be equal and equally administered. “The like should be treated alike”. All the persons placed in equal circumstances shall be treated similarly. Therefore, it ensures equality among equals. It does not mean inequality among equals.

(4) It allows State to classify individuals on a reasonable basis into similar groups. Once such a classification is made, the law shall apply equally among all the people within a group. Then no person within a group shall be treated differently. However, the State is free to discriminate people between the groups.

(5) The concept of equal protection before law is also called “Positive Discrimination” on the Part of the State and the policy of reservation is legally justified under it.

(6) This concept is based on the Aristotelian Principle that ‘Equality can exist only among the equals and equality cannot exist among unequals.

Thus the Legislative may:

(i) Exempt certain classes of property from taxation such as charities, libraries etc.

(ii) Impose different specific takes upon different trades and professions.

(iii)Tax income and property of individuals in different manner etc.

Article 15: Right against Discrimination

This right is available only to citizens. Article 15(1) states that the State shall not discriminate its citizen on grounds of religion, race, caste, sex, place of birth or any of them.

It means that on other grounds citizens can be discriminated e.g. state domicile. It also means that these cannot be the sole ground of discrimination. There can be additional grounds e.g. preference of men in  Armed Forces and females are preferred to be recruited as nurses or in departments like Gynecology in Medical Colleges.

The crucial word in Article 15(1) is ‘only’ which means that race, religion, caste; sex or place of birth cannot be the sole ground for discrimination. If there is any other valid ground on which discrimination can be shown then Article 15(1) does not prohibit race, religion, caste etc. being additional ground for discrimination.

Article 15(2)

It states that no citizen shall be denied:

(a) Access to public places such as Shops, Public Restaurants, Hotels and places of public entertainment.

(b) The use of wells, tanks, bathing Ghats, roads or places of public resort.

It applies to both to the State as well as individual. It prohibits both the State and individuals from practicing discrimination. Therefore it also helps in eradication of untouchability.

Article 15(3)

It confers the power on State to make special provisions for welfare of women and children since they are the most vulnerable section of society.

For example 33% of seats in Panchyats Posts are reserved for women.

Article 15(4)

It was introduced by the constitution (1st constitution Amendment) Act, 1951. It empowers the State to provide by law Special provisions for advancement of socially and educationally backward classes of citizens including Schedule Castes, Schedule Tribes and Backward Classes.

Article 15(5)

It was introduced by the constitution (93rd constitution Amendment) Act, 2005. It confers the power on State to make laws for advancement of any socially and educationally backward classes for admissions into educational institutions including private educational institutions referred to Article 30(1).

Article 16 (Right to Equality of Opportunity)

This right is available only to citizens. It says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

Article 16(2)

No citizen shall be discriminated in respect of public employment by State only on the basis of religion, race, caste, sex, descent, place of birth and residence or any of them.

Article 16(3)

It authorizes the Parliament to provide special favors in case of certain classes of public. Example: The Mizo Accord (1985) grants special privilege to Mizo people.

Even if certain reservations are made by the State, the relevant law shall be passed by Parliament. Any such reservation provided cannot be valid permanently; they can be valid only for a particular period.

Article 16(4)

It empowers the State to provide by law reserving seats in public employment in favor of socially and economically backward classes of citizens if in the opinion of the State, the said class of citizens are not adequately represented in public employment.

It is an enabling clause as it confers the power on State to provide for reservation in favor of backward classes.

Article 16(4) does not confer a Fundamental Right on the backward classes to get seat reserved in Public employment. Therefore, if the State fails to provide reservation for backward classes, they do not enjoy legal remedy before the court of Law.

The Supreme Court in Indira Sawhney Vs Union of India 1992 (Mandal Case) upheld the validity of the reservation of 27% of seats in Public employment in favor of the OBCs.

The Supreme Court held that under Article 16(4) the State can provide reservation only at the entry level (at the time of recruitment). The reservation provided in favor of Schedule Castes and Schedule Tribes in the promotion is unconstitutional and void. The Supreme Court also laid down 5 constitutional requirements which are to be satisfied by reservation policy in order to be legally valid. These are as:

(1) Reservation shall be based only on social and educational backwardness.

(2) The said classes of citizens are not adequately represented in public employment.

(3) The concept of “creamy layer” shall be applicable in the case of OBCs under which the socially and educationally uplifted sections of OBCs shall be removed from the benefit of reservation.

(4) The overall reservation in favor of OBCs ordinarily should not exceed 50%.

(5) The efficiency in the administration should be given due consideration while implementing reservation.

Article 16 (4 B)

It was introduced by the 81st Amendment Act, 2001. It provides that the carry forward Rule in favor of Schedule Castes and Schedule Tribes shall be valid even if the overall reservation for the backward classes exceeds 50%.

Article 16(5)

It is the third exception to the general rule laid down in Article 16(1) and 16(2) which forbid discrimination in public employment on the ground of religion.

It says that a law which provides that a person holding an office in connection with the affairs of a religious or denominational institutions etc., shall be a person professing the same religion or belonging to a particular denomination shall not be treated to be repugnant to this Article.

Article 17 (Abolition of Untouchability)

It abolishes Untouchability and forbids its practice in any form. If it is so practiced it shall be dealt with as an offence punishable in accordance with the law.

Article 35 confers power to the Parliament to enact the laws for abolition of Untouchability. The Parliament has enacted the untouchability (offence) Act. The act prescribes punishment for the practice of untouchability. This act has been amended by the Untouchability (offences) Amendment Act, 1976 in order to make laws more stringent to remove untouchability from the society.

Further the name of the original act has been changed to Civil Rights (Protection) Act. Article 15(2) also helps in eradication of untouchability. The Constitution, nowhere defines “What is Untouchability”, nor do any Acts passed by the Parliament. However, the judiciary has held that untouchability means any social practice among the Hindus which looks down upon a certain class.

Article 18 (Abolition of Titles)

The State shall not confer any title on anybody whether a citizen or a non-citizen except the recognition of academic and military distinctions. Bharat Ratna, Padma Vibhushan, Padma Bhushan, Padma Shri and other State awards are not regarded as titles in terms of Article 18(1) of the constitution. The Supreme Court in Balaji Raghavan Vs Union of India 1996 case stated that these are meritorious awards based on excellence in the respective fields. The theory of equality does not mean that the State should not recognize the excellence.

Article 18(2)

It states that no citizen shall receive any title from a foreign State. For example Sunil Gavaskar was invited to get Knighthood but he was not allowed.

Article 18(3)

It prohibits a foreigner who is in the service of the government of India or that of a State, from accepting any title from any foreign State without the consent of the President.

Article 18(4)

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

The following two points must be considered:

(1) There is no penalty prescribed for the infringement of the above prohibition.

(2) Article 18 is merely a directory. It is open to Parliament to make a law for dealing with such persons who accepts a little in violation of the prohibition prescribed in Article 18.

Right to Freedom (Article 19-22)

These rights are enjoyed only by citizens. It confers six democratic rights as they are deemed essential for the healthy functioning of a democracy. Originally the constitution included 7 Democratic Rights. By 44^th Amendment Act 1978, the Right to property was removed from the list. These rights are enjoyed by the citizen, but they are not absolute rights and each of them is liable to be curtailed by the State.

The Six Fundamental Freedom can be curtailed by putting following restrictions:

(i) In the interest of sovereignty and integrity of India.(INTERNAL SECURITY)

(ii) In the maintenance of public order, morality and decency.(LAW AND ORDER)

(iii) In maintenance of friendly relations with Foreign State.( FOREIGN RELATION)

(iv) In the interest of the promotion of well being of the backward section of citizens and also the weaker sections of Society.

(v) In the interest of any Scheduled Tribe.

Article 19(1) (a) (Freedom of Speech and Expression)

Freedom of Speech and expression means the right to express one’s own convictions and opinion freely.

(i) The word “freely” means the freedom of a citizen to express his views and opinion in any conceivable means including by words of mouth, writing, printing, pictures, banners, signs and even by way of silence.

(ii) The Supreme Court held that the participation in sports is an expression of one’s self and thus, it is a form of freedom of speech.

(iii) In Jindal Vs Union of India 2004 case, Supreme Court held that hoisting the National Flag by citizens is a form of freedom of speech and expression. However, the freedom of speech does not mean that other individuals are under obligation to listen to other’s opinion.

(iv) It also means the right of a citizen to express other’s opinion. The constitution nowhere, mentions in explicit term the freedom of Press. It is an inferred right implicit under Article 19(1) (a).

(v) The right to Freedom of Speech and opinion is meaningless when other’s are prevented from listening or knowing (access to information). So, in this sense, this also means the right to have access to other’s views and opinions. It is for this interpretation that the Right to Information (RTI) as a fundamental right emerges under Article 19(1) (a).

(vi) It also means the right to have political dissent, the right to have political opinion of your own. It also means the right to have your own party. The Supreme Court ruled that Freedom of Speech is an inalienable adjunct to the Right to Life (Article 21). These are not two separate rights but related rights.

The Supreme Court has observed that there are no geographical limitation to freedom of speech and expression guaranteed under Article 19(1) (a) and this freedom is exercisable not only in India but also outside India and if State action sets up barrier to its citizens on the exercise of this expression in any country in the world, it would violate the freedom of Speech and expression.

Article 19(1) (b) (Freedom of Assembly)

It guarantees to all citizens the right to assemble peacefully and without arms. It is a corollary of Article  19(1) (a). This right is not absolute but restricted. The assembly must be non-violent and must not cause any breach of public peace. If the assembly is disorderly or riotous then it is not protected under Article 19(1) (b) and reasonable restrictions may be imposed under article 19(3).

Article 19(1) (c) (Freedom to Form Association)

It guarantees the right to form associations. It includes the association of any kind- political, social or cultural. Further, it also means the right to join or not to join any association or right to continue or not to continue with the association.

(1) It gives rise to the right to form Trade Unions. It is a fundamental right of workers to form trade unions.

(2) The Supreme Court conferred that the Constitution does not recognizes the right to strike. It is a legal right but the strike must follow some rules. Workers can strike only after giving due notice.

(3) In CPM Vs Bharat Kumar 1998 Case the Supreme Court stated that Bandh is illegal. Bandh (A general Stike) is illegal because it carries an element of aggression or compulsion. The compulsion of shutting down offices, shops and disturbance to public transport system, therefore violate a fundamental Right of citizen (Right to Freedom of movement). Moreover, bandh prevents the workers to earn their daily bread;

therefore it violates the Right to Livelihood. It also violates the right to Freedom of Speech and expression.

(4) The Supreme Court held that the Hartal is not illegal. Because there is not any form of coercion involved not disturb normal life criticism.

(5) ESMA (Essential Services Maintenance Act)- The citizens involved in delivery of essential services cannot go on strike (Telecommunication, Administration etc.).

Right to form Association under Armed Forces Article 33 of the Constitution empowers the Parliament to pass a law restricting the right to form political association to:

(a) The members of the Armed Forces.

(b) The members of the Forces charged with or

(c) Persons employed in any bureau or other organization established by the State for purposes of intelligence or counter intelligence, or

(d) Persons employed in or connection with the telecommunication system.

Example: Police Forces (Restriction of Rights) Act, 1966, thus they do not have the right to form trade unions and hence not to go on strike.

Article 19(1) (d) (Freedom of Movement)

It guarantees to citizens the right to move freely throughout the territory of India. The word ‘throughout’ means no part of the country can be made inaccessible to the people of India. The word freely means where ever one likes and however one likes. But these rights can be restricted on the ground of Security, Public order or for protecting the interests of the Scheduled Tribes.

Article 19(1) (e) (Freedom of Residence)

It is a corollary of Article 19(1)(d). It provides that the right to reside and settle down throughout the territory of India. This right is subject to certain reasonable restriction in the areas like the Scheduled areas or border areas.

Article 19(1) (g) (Freedom of Trade and Occupation)

It guarantees all citizens the right to choose any profession, occupation, trade or business. This right can be restricted by the State under Article 19(6) which includes:

(i) Imposing reasonable restrictions in the interest of general public.

(ii) Prescribe professional or technical qualifications necessary for carrying on any

profession, trade or business to the exclusion of private citizens, wholly or partially.

First Amendment Act, 1951 – The right to freedom of Trade and occupation can be restricted by the State in law, in public interest whereby the state can take over a business or trade either completely or partially.

Article 20 - Protection in respect of conviction for offences

Article 20 deals with protection in respect of conviction for certain form of offences. It is available to all individuals (citizens and non-citizens). It contains three kinds of protection to individual against the State:-

(1) Retrospective Criminal Legislation (Ex-Post facto Criminal Legislation)

Article 20(1) state that no person shall be convicted of any offence except for the violation of a law in force at the time of the commission of the offence.

(i) This means that an individual can be punished for the commission of an act only if the said act had been declared by a law as an offence at the time of commission of an offence.

(ii) An act which was originally a non-criminal act cannot be made into a criminal offence subsequent and the individual is punished for that.

(iii) Therefore Article 20(1) prohibits the State from enacting ex-post facto criminal legislation. It means a criminal legislation cannot be given a retrospection effect.

(iv) The immunity cannot be claimed against Preventive Detention. Again the protection does not cover trial.

(v) Further Article 20(1) says that no person shall be subjected to a punishment greater than what is prescribed in law for the commission of an offence.

(2) Double Jeopardy

Article 20(2) states that no person shall be prosecuted and punished for the same offence more than once. Thus Article 20(2) prohibits double jeopardy. Under The doctrine of double jeopardy- a person can be punished only for the punishment of an offence at one time. However, it applies only to in the case of judicial body. It does not apply for the punishment given by a non-judicial body. Therefore, a civil servant

prosecuted and convicted by a court of law can be punished under departmental proceedings for the same offence.

Likewise a person punished departmentally may be prosecuted in a court of law. Again, since the operation of Article 20(2) is confined to indictment before a criminal court, it does not ban proceedings before a civil court for disobedience of an injunction along with criminal proceeding.

(3) Article 20(3) – Prohibition against self-Incrimination

No person who is accused under any offence shall be compelled by the State to be a witness against himself. This clause applies only in cases where confusion is made to a police officer whether voluntarily or under compulsion.

Under the frame of criminal jurisprudence, a person is presumed to be innocent and it is for the prosecution to establish his guilt. A person accused of an offence need not make any statement against his will. If an accused makes a confession voluntarily before the Judicial Magistrate then it will be allowed as evidence in a court of law.

Article 21 - Protection of life and personal Liberty

It states that no person shall be deprived of his life or personal liberty by the State except according to the procedure established by law. It is article 21 that has undergone the greatest changes due to liberal interpretation provided by the Supreme Court.

According to the Supreme Court Article 21 guarantees not merely the right to life but also the right to dignified life. It could thus be seen that all the Fundamental Rights and the Directive Principles ultimately aim to extend a level of quality of life to people.

Without the right to life, for an individual to enjoy other Fundamental Rights become meaningless. Thus Article 21 has emerged as the Fundamental of all Fundamental Rights. It has become the heart and soul of the Constitution. Even if the other fundamental rights have not been provided in the Constitution, a liberal interpretation to Article 21 will lead implicitly to such rights.

As the Supreme Court observes that the Article 21 as a composite right and has given right to largest number of inferred rights primarily right to live with dignity, right to Primary Education, up to 14 years of age, right to health of workers, right to speedy trial for the under trials, right against cruel punishment, right to shelter etc.

It is article 21 that makes the difference between a Constitutional State and a Police State. In its earlier decision in A.K. Gopalan Vs State of Madras (1950) case the Supreme Court stated that personal liberty is different from liberty and thus Article 19 and 21 are two different articles. The right to personal liberty is a limitation upon the powers of the executive but not that of the legislature and only safeguards the individual against arbitrary or illegal action on the part of executive.

In Monika Gandhi Vs Union of India (1978) case the Supreme Court had overruled its earlier decision and stated that the liberty cannot be diluted. The personal freedom guarantee granted under article 19 and personal liberties mentioned under article 21 should not be read separately. Both of them supplement and complement each other. The expression personal liberty under article 21 also includes the freedom

provided under article 19. Both overlap each other. Also article 21 safeguards the individual against the arbitrary or illegal actions not only on the part of the Executive but also on the legislature. Any law made by the legislature imposing restrictions on personal liberty of individuals should not be arbitrary, unfair or unreasonable.

Article 21(A) Right Education

It was introduced by 86th Amendment Act, 2002. It says that the State shall provide free and compulsory education to all children of the age of 6 to 14 years in such a manner as the State may provide by law.

Article 51 A states that it is the duty of a parent or guardian to provide education for his children in the age group of 6-14 years.

Article 22 Protection against arrest and detention in Certain Cases

Article 22 provides procedural safeguards against arbitrary arrest and detection. It is applicable to all individuals (Citizens and non-citizens). It does not confer a Fundamental Right on an individual against arrest and detention. It only extends certain procedural safeguards in case of arrest of individual. Thus it comes into play only after a person has been arrested. Its object is to prevent arbitrary arrest and detention by the State. Article 22 confers following safeguards in case of arrest and detention:-( )

Article 22(1)

No person who is arrested shall be detained in custody without being informed as soon as possible of the grounds for such arrest. Further he shall not be denied the right to consult and be defended by an advocate of his choice.

Article 22(2)

The arrested person shall be produced before the nearest judicial magistrate within 24 hours of his arrest. While calculating the 24 hours the time taken to travel from place to detention to the Court and by intervening holidays shall not be taken into consideration.

Article 22(3)

No person shall be detained in the custody beyond the period for which his detention has been authorized by the Judicial Magistrate. The above safeguards are not available to

(1) Enemy aliens

(2) The persons who are arrested under Preventive Detention laws such as NSA, COFE POSA, POTA Unlawful Activities (Prevention Act) etc.

The Detentions are of two types: Punitive and Preventive

Punitive Detention means detention after a proper trial. In such cases the arrested person is informed of his ground of arrest. He has been given a reasonable opportunity to defend himself and the prosecution has succeeded on his guilt and the court has punished him with a sentence.

On the other hand, Preventive Detention means detention without trial. In such cases, crimes may not have had happened and one of the objective is to prevent an individual from proceeding further commit a crime. Therefore a person can be arrested merely on the ground of suspicion. The rights of such arrested persons are largely governed by the respective preventive detention laws.

Right against Exploitation and Right to Freedom of Religion

Right against Exploitation (Article 23 and 24)

Article 23 (Prohibition of traffic in human beings and forced labor)

It prohibits traffic in human beings and begar and other similar forms of forced labor. Traffic in human beings means forcing people into slavery, servitude and forcing women, children and crippled persons into immoral activities. Begar or Bandhua means forced labour with or without payment.

Article 23(1) authorizes the State to provide by law prescribing punishment for violation of this right. The Parliament has enacted the Immoral Traffic Prevention Act which prescribes punishment for violation of Article 23.

Article 23(2) authorizes the State to provide by law enforcing compulsory services on individual provided general interest of the State shall not make any discrimination on rate, religion, caste or class or any of them. For example during a natural calamity, people can be compelled to provide services to help others.

Article 24 - Prohibition of Employment of children in factories etc.

It prohibits the employment of children below the age of 14 years in any factory or mine or any hazardous employment. The prohibition is absolute and does not admit any exception for the employment of children in a factory or a mine etc.

The Parliament has enacted Child Labor (Prohibition and Regulation) Act 1986.This act classified 14 industries under hazardous industries.

Right to Freedom of Religion (Article 25-28)

Articles 25 to 28 deal with the right to Freedom of religion. They also exhibit the secular character of the State.

(1) A Secular State is one which is neutral on religious issues. It does not recognizes any religion as official religion of the country

(2) In a secular State all the religions have right to coexist. Which means that while they enjoy right to exist, they also have a responsibility to practice religious tolerance towards other religions.

(3) Therefore a secular State is a Pro-religious State. A secular State is neither Anti-religious nor Irreligious but only non-religious in character. One of the major benefits a Secular State confers is the prevention of subordination of a State to a religion.

(4) The Secularism in India is based on the Indian principle of ‘Sarva-Dharma Samabhav’. In this respect Indian Secularism is different from Western Secularism. In West, the State cannot patronize any religion at all.

(5) However, in India the State is allowed to patronize religion provided it does not discriminate one religion against the other. For instance State provide support for Haj Pilogrimage, Amarnath, Mansarover and Kailash Yatras etc.

Article 25

It confers a two-fold religious freedom on all individuals namely.

(1) The Right to freedom of conscience.

(2) The Right to profess practice and propagate religion of one’s choice.

The Right to freedom of conscience means the inner freedom of an individual to mould his religious belief and faith, which includes the Right to believe and not to believe in a religion.

This right to inner freedom is absolute which cannot be restricted by the State. The State cannot mould the religious views of an individual. When this inner freedom takes an outward expression then it is called the right to freedom.

The second set of religious rights can be regulated by the State and reasonable restrictions can be enforced for the maintenance of public order, morality and health.

The right to profess means the right to spell out openly and freely ones religious belief and faith. The right to practice means the right to follow rituals and the rites that are prescribed by one’s religion and to use the signs, symbols and colors that are associated with respective religion.

The right to propagation means to teach one’s religious principles for the edification of others (to educate them); whereas the right to profess is exercised for his inner satisfaction. The right to propagate does not contain any fundamental right on any individual to convert others to his religion. The Supreme Court in Father Stainislaus Vs State of Madhya Pradesh 1977 case held that ‘propagate’ means to transmit or carry forward or diffuse one’s religions principles. These rights cannot be questioned and are conferred by the Constitution on all individuals. But it does not confer a Fundamental to convert others to his religion. Any conversion has to be voluntary and cannot be include coercion or other unlawfulness. The court defined the forced conversions as conversion by allurement, inducement, by trap etc.

The court also maintained a distinction between religious belief on one hand and religious conduct and practice on the other. The State cannot interfere in case of the first right but restrict the second right in the interest of public order, morality and health.

Article 26 – Freedom to manage religious affairs

Every religious denomination shall have the right to

(a) Establish and maintain institutions.

(b) To administer such institutions on matters of religious.

(c) To own and acquire movable and immovable property and

(d) To administer such property in accordance with law.

Religious institutions are still enjoying the right to property which is not available to individuals.

Article 27 – Freedom as to payment of taxes for promotion of any particular religion

It truly reflects the secular character of the State. It prohibits the State from levying and collecting taxes for promotion of any particular religion. No person can be compelled to pay taxes for the benefit of a particular religion.

However under article 27 the State is not prohibited from spending fee for the benefit of one or more religions. Further the State is also free to spend the tax collection for the benefit of all religious without any distinction.

Tax is a compulsory exaction of money by the State with the authority of Law. Tax cannot be collected by individuals. The State may not provide any service in lieu of the tax it collects except the common enjoyment of facility of State. Example: security, maintenance of Law and order Fee is a specific amount paid by an individual or the organization for the purpose of receiving a specific service. If the promised service is not provided then the authority is obliged to return fee.

Fee can be collected by both private and public body and it may not have sanction of law.

Article 28 – Freedom as to attendance at religious instruction or religious worship in certain educational institutions

It deals with importing religious instructions in educational institutions. Since the State is secular, it is prevented from importing religious instructions in educational institutions. For this purpose Article 28 divides the educational institutions into 4 categories:

(1) Educational institutions that are maintained and owned by State. In these institutions no such religious instructions whatsoever can be imparted.

(2) Educational Institutions that are recognized by the State.

(3) Educational Institutions that receive aids out of State Fund

In these two categories (2nd and 3rd) of institutions religious instructions religious instructions can be imparted but the students cannot be compelled to attend such religious instructions.

Educational Institutions that are administered by the State but have been established by religious endowment or charitable trust. In these institutions, religious instructions can be imparted and the student can be compelled for such religious instructions.

Cultural and Educational Rights and Right to Constitutional Remedies

Article 29(1) – Cultural and Educational Rights

Cultural and Educational Rights says any section of the citizens residing in India having a distinct language, script or culture shall have the right to conserve the same. For example Punjabi has a distinct Gurmukhi Script. Even religious communities can conserve their language culture.

It is not confined only to minorities even majority communities can have this right. The citizens have the right to agitate for the protection of their language.

Article 29(2)

It states that no citizens shall be discriminate on grounds only of race, religion, caste, language or any of them with regard to admission to academic institute that are maintained/administered or receiving aid out of the State government.

Article 30

Right of Minorities to establish and administer educational institute. It truly deals with the minority’s right. It is not available to non-minority communities. The minority community is decided on the basis of religion and language.

Religious Minority and Linguistic Minority

The constitution does not define the term minority. It is the State that has the authority to recognize certain communities as minority community. In India Muslims, Christian, Sikhs, Parsai and Buddhists are recognized as minority communities, but not the Jains. In order to be recognized as a minority community it should be

(1) Numerical minority and

(2) Socially, educationally and economically backward.

The Supreme Court held that since the Jain community is socially, educationally and economically advanced, it does not enjoy the right to be recognized as minority.

Article 32: Right to Constitutional Remedies

It is remedial in character. If Fundamental Rights are violated, then Article 32 comes into picture. It allows an individual to go to Supreme Court in case if the Fundamental Rights are violated. Article 32 provides ‘teeth to other Fundamental Rights to bite’. According to Dr. B.R. Ambedkar Article 32 is the heart and soul of the Constitution.

Article 32 forces a Constitutional duty on Supreme Court to safeguard the  Fundamental Rights of the individuals. It makes Supreme Court as defender and protector of Fundamental Rights of under Article 32 Supreme Court enjoys the widest possible power. Supreme Court will lose much of its vitality if Article 32 is removed. Article 20, 21 and 32 will always be available as Fundamental Right to the individual.

Article 32 of the Constitution gives an extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is empowered to issue directions, orders or writs, including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari to enforce them.

Habeas Corpus

Habeas corpus is a Latin term which means “have the body”. The concept of writ of habeas corpus has originated from England. This is a writ or legal action which can be used by a person to seek relief from illegal detention. The writ of habeas corpus saves a person from harm caused by an unfair action of the legal system.

Mandamus

The term “mandamus” literally means “command.” Writ of mandamus is issued to a person or lower level Court or a body by a superior Court. The writ of mandamus is either issued to oblige a person or the Court or a body for the execution of public duty or imposed on them to restrain them from executing a particular act. The writ of mandamus is an effective writ that checks the functioning of the government.

Prohibition

Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This Writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. It is a Writ issued by a superior court to lower court or a tribunal forbidding it to perform an act outside its jurisdiction. After the

issue of this Writ proceedings in the lower court etc. come to a stop. The Writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, prohibiting the latter to continue proceedings in a particular case, where it has no legal jurisdiction of trial. While the Writ of mandamus commands doing of particular thing, the Writ of prohibition is essentially addressed to a subordinate court  commanding inactivity. Writ of prohibition is, thus, not available against a public officer not vested with judicial or quasi-judicial powers.

Quo Warranto

The meaning of the term Quo Warranto is ‘by what authority’. The writ of quo warranto may be issued against a person holding a public office or governmental privilege. The issue of summon is followed by legal proceedings, during which an individual's right to hold an office or governmental privilege is challenged.

Certiorari

Certiorari means to be certified. The Writ of Certiorari is issued by the Supreme Court to some inferior court or tribunal to transfer the matter to it or to some other superior authority for proper consideration. The Writ of Certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court. In other words, while the prohibition is available at the earlier stage, Certiorari

is available on similar grounds at a later stage. It can also be said that the Writ of prohibition is available during the tendency of proceedings before a sub-ordinate court, Certiorari can be resorted to only after the order or decision has been announced. There are several conditions necessary for the issue of Writ of

Certiorari, which are as under:

(a) There should be court, tribunal or an officer having legal authority to determine the question of deciding fundamental rights with a duty to act judicially.

(b) Such a court, tribunal or officer must have passed order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or law. The order could also be against the principle of natural justice or it could contain an error of judgment in appreciating the facts of the case.

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