- The Fundamental Rights are enshrined in Part III of the Constitution from
- Articles 12 to 35. In this regard, the framers of the Constitution derivedinspiration from the Constitution of USA (i.e., Bill of Rights).Part III of the Constitution is rightly described as the Magna Cartaof India.It contains a very long and comprehensive list of ‘justiciable’ FundamentalRights.
- The Fundamental Rights are guaranteed by the Constitution to all persons without any discrimination. They uphold the equality of all individuals, thedignity of the individual, the larger public interest and unity of the nation.
- Originally, the Constitution provided for seven Fundamental Rights viz,
- Right to equality (Articles 14–18)
- Right to freedom (Articles 19–22)
- Right against exploitation (Articles 23–24)
- Right to freedom of religion (Articles 25–28)
- Cultural and educational rights (Articles 29–30)
- Right to property (Article 31)
- Right to constitutional remedies (Article 32)
- However, the right to property was deleted from the list of FundamentalRights by the 44th Amendment Act, 1978. It is made a legal right underArticle 300-A in Part XII of the Constitution. So at present, there are only sixFundamental Rights.
FEATURES OF FUNDAMENTAL RIGHTS
The Fundamental Rights guaranteed by the Constitution are characterized by the following:
- Some of them are available only to the citizens while others are availableto all persons whether citizens, foreigners or legal persons likecorporations or companies.
- They are not absolute but qualified. The state can impose reasonablerestrictions on them. However, whether such restrictions are reasonable or not is to be decided by the courts. Thus, they strike a balance betweenthe rights of the individual and those of the society as a whole, betweenindividual liberty and social control.
- Most of them are available against the arbitrary action of the State, with afew exceptions like those against the State’s action and against the actionof private individuals. When the rights that are available against theState’s action only are violated by the private individuals, there are noconstitutional remedies but only ordinary legal remedies.
- Some of them are negative in character, that is, place limitations on theauthority of the State, while others are positive in nature, conferringcertain privileges on the persons.
- They are justiciable, allowing persons to move the courts for theirenforcement, if and when they are violated.
- They are defended and guaranteed by the Supreme Court. Hence, theaggrieved person can directly go to the Supreme Court, not necessarily byway of appeal against the judgement of the high courts.
- They are not sacrosanct or permanent. The Parliament can curtail orrepeal them but only by a constitutional amendment act and not by anordinary act. Moreover, this can be done without affecting the ‘basicstructure’ of the Constitution.
- They can be suspended during the operation of a National Emergencyexcept the rights guaranteed by Articles 20 and 21. Further, the six rightsguaranteed by Article 19 can be suspended only when emergency isdeclared on the grounds of war or external aggression (i.e., externalemergency) and not on the ground of armed rebellion (i.e., internal emergency).
- Their scope of operation is limited by Article 31A (saving of laws providing for acquisition of estates, etc.), Article 31B (validation ofcertain 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 berestricted or abrogated by the Parliament (Article 33).
- Their application can be restricted while martial law is in force in anyarea. Martial law means ‘military rule’ imposed under abnormalcircumstances to restore order (Article 34). It is different from theimposition of national emergency.
- Most of them are directly enforceable (self-executory) while a few ofthem 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 statelegislatures so that uniformity throughout the country is maintained(Article 35).
DEFINITION OF STATE
State includes the following:
- Government and Parliament of India, that is, executive and legislativeorgans of the Union government.
- Government and legislature of states, that is, executive and legislativeorgans of state government.
- All local authorities that is, municipalities, panchayats, district boards, improvement trusts, etc.
- All other authorities, that is, statutory or non-statutory authorities likeLIC, ONGC, SAIL, etc.
Thus, State has been defined in a wider sense so as to include all itsagencies. It is the actions of these agencies that can be challenged in thecourts as violating the Fundamental Rights.
According to the Supreme Court, even a private body or an agencyworking as an instrument of the State falls within the meaning of the ‘State’under Article 12.
LAWS INCONSISTENT WITH FUNDAMENTAL RIGHTS
- Article 13 declares that all laws that are inconsistent with or in derogation ofany of the fundamental rights shall be void. In other words, it expressivelyprovides for the doctrine of judicial review. This power has been conferredon the Supreme Court (Article 32) and the high courts (Article 226) that candeclare a law unconstitutional and invalid on the ground of contravention ofany of the Fundamental Rights.
- The term ‘law’ in Article 13 has been given a wide connotation so as toinclude the following:
- Permanent laws enacted by the Parliament or the state legislatures;
- Temporary laws like ordinances issued by the president or the stategovernors;
- Statutory instruments in the nature of delegated legislation (executivelegislation) like order, bye-law, rule, regulation or notification; and
- Non-legislative sources of law, that is, custom or usage having the forceof law.
- Thus, not only a legislation but any of the above can be challenged in thecourts as violating a Fundamental Right and hence, can be declared as void.
- Further, Article 13 declares that a constitutional amendment is not a lawand hence cannot be challenged. However, the Supreme Court held in the KesavanandaBharaticase2 (1973) that a Constitutional amendment can bechallenged on the ground that it violates a fundamental right that forms a partof the ‘basic structure’ of the Constitution and hence, can be declared as void.
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 thelaw or the equal protection of the laws within the territory of India. Thisprovision 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 law’ is of British origin while the conceptof ‘equal protection of laws’ has been taken from the American Constitution.
- The first concept connotes:
- The absence of any special privileges in favour of any person,
- The equal subjection of all persons to the ordinary law ofthe land administered by ordinary law courts, and
- No person (whether richor poor, high or low, official or non-official) is above the law.
- The second concept, on the other hand, connotes:
- The equality of treatment under equal circumstances, both in the privileges conferred andliabilities imposed by the laws,
- The similar application of the same laws toall persons who are similarly situated, and
- The like should be treated alikewithout any discrimination. Thus, the former is a negative concept while thelatter is a positive concept. However, both of them aim at establishingequality of legal status, opportunity and justice.
Exceptions to Equality The rule of equality before law is not absoluteand there are constitutional and other exceptions to it. These are mentioned below:
- The President of India and the Governor of States enjoy the followingimmunities (Article 361):
- The President or the Governor is not answerable to any court for theexercise and performance of the powers and duties of his office.
- No criminal proceedings shall be instituted or continued against thePresident or the Governor in any court during his term of office.
- No process for the arrest or imprisonment of the President or theGovernor shall be issued from any court during his term of office.
- No civil proceedings against the President or the Governor shall beinstituted during his term of office in any court in respect of any actdone by him in his personal capacity, whether before or after heentered upon his office, until the expiration of two months next afternotice has been delivered to him.
- No person shall be liable to any civil or criminal proceedings in any courtin respect of the publication in a newspaper (or by radio or television) ofa substantially true report of any proceedings of either House ofParliament or either House of the Legislature of a State (Article 361-A).
- No member of Parliament shall be liable to any proceedings in any courtin respect of anything said or any vote given by him in Parliament or anycommittee thereof (Article 105).
- No member of the Legislature of a state shall be liable to any proceedingsin any court in respect of anything said or any vote given by him in theLegislature or any committee thereof (Article 194).
- Article 31-C is an exception to Article 14. It provides that the laws madeby the state for implementing the Directive Principles contained in clause(b) or clause (c) of Article 39 cannot be challenged on the ground thatthey are violative of Article 14. The Supreme Court held that “whereArticle 31-C comes in, Article 14 goes out”.
- The foreign sovereigns (rulers), ambassadors and diplomats enjoyimmunity 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 ongrounds only of religion, race, caste, sex or place of birth.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, publicrestaurants, hotels and places of public entertainment; or (b) the use of wells,tanks, bathing ghats, road and places of public resort maintained wholly orpartly by State funds or dedicated to the use of general public. This provisionprohibits discrimination both by the State and private individuals, while theformer provision prohibits discrimination only by the State.
- There are three exceptions to this general rule of non-discrimination:
- The state is permitted to make any special provision for women andchildren. For example, reservation of seats for women in local bodies orprovision of free education for children.
- The state is permitted to make any special provision for the advancementof any socially and educationally backward classes of citizens or for thescheduled castes and scheduled tribes. For example, reservation of seats or fee concessions in public educational institutions.
- The state is empowered to make any special provision for theadvancement 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 minorityeducational institutions.
Creamy Layer The children of the following different categories ofpeople belong to ‘creamy layer’ among OBCs and thus will not get the quotabenefit :
- Persons holding constitutional posts like President, Vice-President, Judgesof 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 inPSUs, Banks, Insurance Organisations, Universities etc., and also inprivate 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, consultantsand so on.
- Persons engaged in trade, business and industry.
- People holding agricultural land above a certain limit and vacant land orbuildings in urban areas.
- Persons having gross annual income of more than 6 lakh or possessingwealth above the exemption limit. In 1993, when the “creamy layer”ceiling was introduced, it was 1 lakh. It was subsequently revised to 2.5lakh in 2004, 4.5 lakh in 2008 and 6 lakh in 2013.
3.Equality of Opportunity in Public Employment
- Article 16 provides for equality of opportunity for all citizens in matters ofemployment or appointment to any office under the State. No citizen can bediscriminated against or be ineligible for any employment or office under theState on grounds of only religion, race, caste, sex, descent, place of birth orresidence.
- There are three exceptions to this general rule of equality of opportunity inpublic employment:
- Parliament can prescribe residence as a condition for certain employmentor appointment in a state or union territory or local authority or otherauthority. As the Public Employment (Requirement as to Residence) Actof 1957 expired in 1974, there is no such provision for any state exceptAndhra Pradeshand Telangana.
- The State can provide for reservation of appointments or posts in favourof any backward class that is not adequately represented in the stateservices.
- A law can provide that the incumbent of an office related to religious ordenominational institution or a member of its governing body should belong to the particular religion or denomination.
4.Abolition of Untouchability
- Article 17 abolishes ‘untouchability’ and forbids its practice in any form. Theenforcement of any disability arising out of untouchability shall be an offencepunishable in accordance with law.
- Untouchability refers to the socialdisabilities imposed on certain classes of persons by reason of their birth incertain castes.
- The act declares the following acts as offences:
- preventing any person from entering any place of public worship or fromworshipping therein;
- Justifying untouchability on traditional, religious, philosophical or othergrounds;
- Denying access to any shop, hotel or places of public entertainment;
- Insulting a person belonging to scheduled caste on the ground of untouchability;
- Refusing to admit persons in hospitals, educational institutions or hostelsestablished for public benefit;
- Preaching untouchability directly or indirectly; and
- Refusing to sell goods or render services to any person.
- The Supreme Court held that the right under Article 17 is available againstprivate individuals and it is the constitutional obligation of the State to takenecessary action to ensure that this right is not violated.
5.Abolition of Titles
- Article 18 abolishes titles and makes four provisions in that regard:
- It prohibits the state from conferring any title (except a military or academic distinction) on any body, whether a citizen or a foreigner.
- It prohibits a citizen of India from accepting any title from any foreignstate.
- A foreigner holding any office of profit or trust under the state cannotaccept any title from any foreign state without the consent of the president.
- No citizen or foreigner holding any office of profit or trust under the Stateis to accept any present, emolument or office from or under any foreignState 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 areagainst 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 andPadma 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 doesnot mandate that merit should not be recognised.
RIGHT TO FREEDOM
1.Protection of Six Rights
Article 19 guarantees to all citizens the six rights. These are:
- Right to freedom of speech and expression.
- Right to assemble peaceably and without arms.
- Right to form associations or unions or co-operative societies.
- Right to move freely throughout the territory of India.
- Right to reside and settle in any part of the territory of India.
- Right to practice any profession or to carry on any occupation, trade orbusiness.
Originally, Article 19 contained seven rights. But, the right to acquire, holdand dispose of property was deleted by the 44th Amendment Act of 1978.
These six rights are protected against only state action and not privateindividuals.
The State can impose ‘reasonable’ restrictions on the enjoyment of thesesix rights only on the grounds mentioned in the Article 19 itself and not onany other grounds.
Freedom of Speech and Expression
- It implies that every citizen has theright to express his views, opinions, belief and convictions freely by word ofmouth, writing, printing, picturing or in any other manner. The SupremeCourt held that the freedom of speech and expression includes the following:
- Right to propagate one’s views as well as views of others.
- Freedom of the press.
- Freedom of commercial advertisements.
- Right against tapping of telephonic conversation.
- Right to telecast, that is, government has no monopoly on electronicmedia.
- Right against bundh called by a political party or organisation.
- Right to know about government activities.
- Freedom of silence.
- Right against imposition of pre-censorship on a newspaper.
- Right to demonstration or picketing but not right to strike.
- The State can impose reasonable restrictions on the exercise of the freedomof 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 anoffence.
Freedom of Assembly
- Every citizen has the right to assemble peaceably andwithout arms. It includes the right to hold public meetings, demonstrationsand take out processions. This freedom can be exercised only on public landand the assembly must be peaceful and unarmed. This provision does notprotect violent, disorderly, riotous assemblies, or one that causes breach ofpublic peace or one that involves arms. This right does not include the rightto strike.
- The State can impose reasonable restrictions on the exercise of right ofassembly on two grounds, namely, sovereignty and integrity of India and public order including the maintenance of traffic in the area concerned.
Freedom of Association
- All citizens have the right to form associations orunions or co-operative societies. It includes the right to form politicalparties, companies, partnership firms, societies, clubs, organisations, tradeunions or any body of persons. It not only includes the right to start anassociation or union but also to continue with the association or union assuch. Further, it covers the negative right of not to form or join an associationor union.
- Reasonable restrictions can be imposed on the exercise of this right by theState on the grounds of sovereignty and integrity of India, public order and morality.
Freedom of Movement
- This freedom entitles every citizen to move freelythroughout the territory of the country. He can move freely from one state toanother or from one place to another within a state. This right underlines theidea that India is one unit so far as the citizens are concerned. Thus, thepurpose is to promote national feeling and not parochialism.
- The grounds of imposing reasonable restrictions on this freedom are two, namely, the interests of general public and the protection of interests of anyscheduled tribe. The entry of outsiders in tribal areas is restricted to protectthe distinctive culture, language, customs and manners of scheduled tribesand to safeguard their traditional vocation and properties against exploitation.
- The Supreme Court held that the freedom of movement of prostitutes canbe restricted on the ground of public health and in the interest of publicmorals.
- The Bombay High Court validated the restrictions on the movementof 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 right tocome back to the country). Article 19 protects only the first dimension. Thesecond dimension is dealt by Article 21 (right to life and personal liberty).
Freedom of Residence
- Every citizen has the right to reside and settle in anypart of the territory of the country. This right has two parts: (a) the right toreside in any part of the country, which means to stay at any placetemporarily, and (b) the right to settle in any part of the country, which meansto set up a home or domicile at any place permanently.
- This right is intended to remove internal barriers within the country orbetween any of its parts. This promotes nationalism and avoids narrowmindedness.
- The State can impose reasonable restrictions on the exercise of this righton two grounds, namely, the interest of general public and the protection ofinterests of any scheduled tribes. The right of outsiders to reside and settle intribal areas is restricted to protect the distinctive culture, language, customsand manners of scheduled tribes and to safeguard their traditional vocationand properties against exploitation. In many parts of the country, the tribal shave been permitted to regulate their property rights in accordance with theircustomary rules and laws.
- The Supreme Court held that certain areas can be banned for certain kindsof persons like prostitutes and habitual offenders.
Freedom of Profession
- All citizens are given the right to practise any profession or to carry on any occupation, trade or business. This right is verywide as it covers all the means of earning one’s livelihood.
- The State can impose reasonable restrictions on the exercise of this right inthe interest of the general public. Further, the State is empowered to:
- Prescribe professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business; and
- Carry on by itself any trade, business, industry or service whether to theexclusion (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 exclusionof citizens (all or some only) or in competition with any citizen. The State isnot required to justify its monopoly.
2.Protection in Respect of Conviction for Offences
- Article 20 grants protection against arbitrary and excessive punishment to anaccused person, whether citizen or foreigner or legal person like a companyor a corporation. It contains three provisions in that direction:
- No ex-post-facto law: No person shall be (i) convicted of any offenceexcept for violation of a law in force at the time of the commission of theact, nor (ii) subjected to a penalty greater than that prescribed by the lawin force at the time of the commission of the act.
- No double jeopardy: No person shall be prosecuted and punished for thesame offence more than once.
- No self-incrimination: No person accused of any offence shall becompelled 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 thepenalties for such acts. The enactment of such a law is prohibited by the firstprovision of Article 20.
- However, this limitation is imposed only on criminallaws and not on civil laws or tax laws. In other words, a civil liability or a taxcan be imposed retrospectively. Further, this provision prohibits onlyconviction or sentence under an ex-post-facto criminal law and not the trialthereof.
- Finally, the protection (immunity) under this provision cannot beclaimed in case of preventive detention or demanding security from a person.
- The protection against double jeopardy is available only in proceedingsbefore a court of law or a judicial tribunal. In other words, it is not availablein proceedings before departmental or administrative authorities as they arenot of judicial nature.
- The protection against self-incrimination extends to both oral evidence and documentary evidence. However, it does not extend to (i) compulsoryproduction of material objects, (ii) compulsion to give thumb impression, specimen signature, blood specimens, and (iii) compulsory exhibition of thebody.
- Further, it extends only to criminal proceedings and not to civil proceedings or proceedings which are not of criminal nature.
3.Protection of Life and Personal Liberty
- Article 21 declares that no person shall be deprived of his life or personalliberty except according to procedure established by law. This right isavailable to both citizens and non-citizens.
- In the famous Gopalan case (1950), the Supreme Court has taken anarrow interpretation of the Article 21. It held that the protection underArticle 21 is available only against arbitrary executive action and not fromarbitrary legislative action. This means that the State can deprive the right tolife and personal liberty of a person based on a law.Supreme Court held that the ‘personal liberty’ meansonly liberty relating to the person or body of the individual.
- But, in Menaka case (1978), the Supreme Court overruled its judgement in the Gopalan case by taking a wider interpretation of the Article 21. Therefore, it ruled thatthe right to life and personal liberty of a person can be deprived by a lawprovided the procedure prescribed by that law is reasonable, fair and just.
- The Supreme Court has reaffirmed its judgement in the Menaka case in the subsequent cases. It has declared the following rights as part of Article 21:
- Right to live with human dignity.
- Right to decent environment including pollution free water and air andprotection against hazardous industries.
- Right to livelihood.
- Right to privacy.
- Right to shelter.
- Right to health.
- Right to free education up to 14 years of age.
- Right to free legal aid.
- Right against solitary confinement.
- Right to speedy trial.
- Right against handcuffing.
- Right against inhuman treatment.
- Right against delayed execution.
- Right to travel abroad.
- Right against bonded labour.
- Right against custodial harassment.
- Right to emergency medical aid.
- Right to timely medical treatment in government hospital.
- Right not to be driven out of a state.
- Right to fair trial.
- Right of prisoner to have necessities of life.
- Right of women to be treated with decency and dignity.
- Right against public hanging.
- Right to hearing.
- Right to information.
- Right to reputation.
- Right of appeal from a judgement of conviction
- Right to social security and protection of the family
- Right to social and economic justice and empowerment
- Right against bar fetters
- Right to appropriate life insurance policy
- Right to sleep
- Right to freedom from noise pollution
- Right to electricity
4.Right to Education
- Article 21 A declares that the State shall provide free and compulsoryeducation to all children of the age of six to fourteen years in such a manneras the State may determine.
- In pursuance of Article 21A, the Parliament enacted the Right of Childrento Free and Compulsory Education (RTE) Act, 2009. This Act seeks toprovide that every child has a right to be provided full time elementaryeducation of satisfactory and equitable quality in a formal school whichsatisfies certain essential norms and standards.
- This legislation is anchored inthe belief that the values of equality, social justice and democracy and thecreation of a just and humane society can be achieved only through provisionof inclusive elementary education to all.
5.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.
- Punitivedetention is to punish a person for an offence committed by him after trialand conviction in a court. Preventive detention, on the other hand, meansdetention of a person without trial and conviction by a court.
- Its purpose isnot to punish a person for a past offence but to prevent him from committingan offence in the near future.
- Thus, preventive detention is only aprecautionary measure and based on suspicion.
- The Article 22 has two parts—the first part deals with the cases of ordinarylaw 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 isarrested or detained under an ordinary law:
- Right to be informed of the grounds of arrest.
- Right to consult and be defended by a legal practitioner
- Right to be produced before a magistrate within 24 hours, excludingthe journey time.
- Right to be released after 24 hours unless the magistrate authorizes further detention.
(b) The second part of Article 22 grants protection to persons who arearrested or detained under a preventive detention law. This protection isavailable to both citizens as well as aliens and includes the following:
- The detention of a person cannot exceed three months unless anadvisory board reports sufficient cause for extended detention. The board is to consist of judges of a high court.
- The grounds of detention should be communicated to the detenu.However; the facts considered to be against the public interest need not be disclosed.
- The detenu should be afforded an opportunity to make arepresentation against the detention order.
RIGHT AGAINST EXPLOITATION
- Prohibition of Traffic in Human Beings and Forced Labour
- Article 23 prohibits traffic in human beings, beggar (forced labor) and other similar forms of forced labor.
- The expression ‘traffic in human beings’ include (a) selling and buying ofmen, women and children like goods; (b) immoral traffic in women andchildren, including prostitution; (c) devadasis; and (d) slavery.
- To punishthese acts, the Parliament has made the Immoral Traffic (Prevention) Act, 1956.
- The term ‘begar’ means compulsory work without remuneration.
- In addition to begar, the Article 23 prohibits other ‘similar forms of forced labour’ like‘bonded labour’. The term ‘forced labour’ means compelling a person towork against his will.
- 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 weremade.
- Prohibition of Employment of Children in Factories
- Article 24 prohibits the employment of children below the age of 14 years inany factory, mine or other hazardous activities like construction work orrailway. But it does not prohibit their employment in any harmless orinnocent work.
- The Child Labour (Prohibition and Regulation) Act, 1986, is the mostimportant law in this direction.
Child Labour Amendment (2016)
- The Child Labour (Prohibition and Regulation) Amendment Act, 2016, amended the Child Labour (Prohibition and Regulation) Act, 1986.
- It hasrenamed the Principal Act as the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986.
- The Amendment Act prohibits the employment of children below 14 yearsin all occupations and processes. Earlier, this prohibition was applicable to 18occupations and 65 processes.
- Further, the Amendment Act prohibits the employment of adolescents (14to 18 years of age) in certain hazardous occupations and processes.
RIGHT TO FREEDOM OF RELIGION
1.Freedom of Conscience and Free Profession, Practice and Propagation of Religion
Article 25 says that all persons are equally entitled to freedom of conscienceand the right to freely profess, practice and propagate religion. Theimplications of these are:
- Freedom of conscience: Inner freedom of an individual to mould his relation with God or Creatures in whatever way he desires.
- Right to profess: Declaration of one’s religious beliefs and faith openlyand freely.
- Right to practice: Performance of religious worship, rituals, ceremoniesand exhibition of beliefs and ideas.
- Right to propagate: Transmission and dissemination of one’s religiousbeliefs to others or exposition of the tenets of one’s religion. But, it doesnot include a right to convert another person to one’s own religion. Forcible conversions impinge on the ‘freedom of conscience’ guaranteedto all the persons alike.
2.Freedom to Manage Religious Affairs
- According to Article 26, every religious denomination or any of its sectionshall have the following rights:
- Right to establish and maintain institutions for religious and charitablepurposes;
- Right to manage its own affairs in matters of religion;
- Right to own and acquire movable and immovable property; and
- Right to administer such property in accordance with law.
- Article 25 guarantees rights of individuals, while Article 26 guaranteesrights of religious denominations or their sections.
3.Freedom from Taxation for Promotion of a Religion
- Article 27 lays down that no person shall be compelled to pay any taxes forthe promotion or maintenance of any particular religion or religiousdenomination. In other words, the State should not spend the public moneycollected by way of tax for the promotion or maintenance of any particularreligion.
- This provision prohibits the State from favouring, patronising and supporting one religion over the other.
4.Freedom from Attending Religious Instruction
- Under Article 28, no religious instruction shall be provided in anyeducational institution wholly maintained out of State funds. However, thisprovision shall not apply to an educational institution administered by theState but established under any endowment or trust, requiring imparting ofreligious instruction in such institution.
- Further, no person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to attend anyreligious instruction or worship in that institution without his consent. In caseof a minor, the consent of his guardian is needed.
- Thus, Article 28 distinguishes between four types of educationalinstitutions:
- Institutions wholly maintained by the State.
- Institutions administered by the State but established under anyendowment or trust.
- Institutions recognised by the State.
- Institutions receiving aid from the State.
- In (a) religious instruction is completely prohibited while in (b), religiousinstruction is permitted. In (c) and (d), religious instruction is permitted on avoluntary 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.
2. Right of Minorities to Establish and Administer Educational Institutions
- Article 30 grants the following rights to minorities, whether religious orl inguistic:
- All minorities shall have the right to establish and administer educational institutions of their choice.
- The compensation amount fixed by the State for the compulsory acquisition of any property of a minority educational institution shall not restrict or abrogates 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).
- 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 (asunder Article 29). However, the term ‘minority’ has not been definedanywhere in the Constitution.
- The right under Article 30 also includes the right of a minority to imparteducation to its children in its own language.
- Minority educational institutions are of three types:
- Institutions that seek recognition as well as aid from the State;
- Institutions that seek only recognition from the State and not aid; and
- Institutions that neither seek recognition nor aid from the State.
- The institutions of first and second type are subject to the regulatory powerof the state with regard to syllabus prescription, academic standards, discipline, sanitation, employment of teaching staff and so on.
- Theinstitutions of third type are free to administer their affairs but subject tooperation of general laws like contract law, labour law, industrial law, taxlaw, economic regulations, and so on.
RIGHT TO CONSTITUTIONAL REMEDIES
- Article 32 confers theright to remedies for the enforcement of the fundamental rights of anaggrieved citizen.
- Dr Ambedkar called Article 32 as the most important articleof the Constitution—‘an Article without which this constitution would be anullity. It is the very soul of the Constitution and the very heart of it’.
- TheSupreme 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 tothe Constitution. It contains the following four provisions:
- The right to move the Supreme Court by appropriate proceedings for theenforcement of the Fundamental Rights is guaranteed.
- The Supreme Court shall have power to issue directions or orders or writsfor the enforcement of any of the fundamental rights. The writs issued may includehabeas corpus, mandamus, prohibition, certiorari and quo-warranto.
- Parliament can empower any other court to issue directions, orders andwrits of all kinds. However, this can be done without prejudice to theabove powers conferred on the Supreme Court. Any other court here doesnot include high courts because Article 226 has already conferred thesepowers on the high courts.
- The right to move the Supreme Court shall not be suspended except asotherwise provided for by the Constitution. Thus the Constitution providesthat the President can suspend the right to move any court for theenforcement of the fundamental rights during a national emergency (Article 359).
- The purpose of Article 32 is to provide a guaranteed, effective, expedious, inexpensive and summary remedy for the protection of the fundamentalrights.
- In case of the enforcement of Fundamental Rights, the jurisdiction of the Supreme Court is original but not exclusive. It is concurrent with thejurisdiction of the high court under Article 226. It vests original powers in thehigh court to issue directions, orders and writs of all kinds for the enforcement of the Fundamental Rights.Supreme Court has ruled that where relief through high court isavailable under Article 226, the aggrieved party should first move the highcourt.
WRITS—TYPES AND SCOPE
- The Supreme Court (under Article 32) and the high courts (under Article226) can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo-warranto. Further, the Parliament (under Article 32) can empowerany other court to issue these writs. Since no such provision has been madeso far, only the Supreme Court and the high courts can issue the writs and notany other court. Before 1950, only the High Courts of Calcutta, Bombay andMadras had the power to issue the writs. Article 226 now empowers all thehigh courts to issue the writs.
- The writ jurisdiction of the Supreme Court differs from that of a high courtin three respects:
- The Supreme Court can issue writs only for the enforcement offundamental rights whereas a high court can issue writs not only for theenforcement of Fundamental Rights but also for any other purpose. Theexpression ‘for any other purpose’ refers to the enforcement of anordinary legal right. Thus, the writ jurisdiction of the Supreme Court, inthis respect, is narrower than that of high court.
- The Supreme Court can issue writs against a person or governmentthroughout the territory of India whereas a high court can issue writs against a person residing or against a government or authority located within its territorial jurisdiction only or outside its territorial jurisdictiononly if the cause of action arises within its territorial jurisdiction.Thus,the territorial jurisdiction of the Supreme Court for the purpose of issuingwrits is wider than that of a high court.
- A remedy under Article 32 is in itself a Fundamental Right and hence, the Supreme Court may not refuse to exercise its writ jurisdiction. On theother hand, a remedy under Article 226 is discretionary and hence, a highcourt may refuse to exercise its writ jurisdiction. Article 32 does notmerely confer power on the Supreme Court as Article 226 does on a highcourt to issue writs for the enforcement of fundamental rights or otherrights as part of its general jurisdiction. The Supreme Court is thusconstituted as a defender and guarantor of the fundamental rights.
A) Different kinds of writs mentioned in Articles 32 and 226 of the Constitution:
- It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. The court then examines the cause and legality of detention. It would set the detained person free, if the detention is found to be illegal. Thus, this writ is a bulwark of individual liberty against arbitrary detention.
- The writ of habeas corpus can be issued against both public authorities as well as private individuals. The writ, on the other hand, is not issued where the (a) detention is lawful, (b) the proceeding is for contempt of a legislature or a court, (c) detention is by a competent court, and (d) detention is outside the jurisdiction of the court.
- It literally means ‘we command’. It is a command issued by the court to apublic official asking him to perform his official duties that he has failed or refused to perform. It can also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose.
- The writ of mandamus cannot be issued (a) against a private individual or body; (b) to enforce departmental instruction that does not possess statutory force; (c) when the duty is discretionary and not mandatory; (d) to enforce a contractual obligation; (e) against the president of India or the state governors; and (f) against the chief justice of a high court acting in judicial capacity.
- Literally, it means ‘to forbid’. It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. Thus, unlike mandamus that directs activity, the prohibition directs inactivity.
- The writ of prohibition can be issued only against judicial and quasijudicialauthorities. It is not available against administrative authorities, legislative bodies, and private individuals or bodies.
- In the literal sense, it means ‘to be certified’ or ‘to be informed’. It is issuedby a higher court to a lower court or tribunal either to transfer a case pendingwith the latter to itself or to squash the order of the latter in a case. It is issuedon the grounds of excess of jurisdiction or lack of jurisdiction or error of law.
- Thus, unlike prohibition, which is only preventive, certiorari is bothpreventive as well as curative. Previously, the writ of certiorari could be issued only against judicial andquasi-judicial authorities and not against administrative authories. However,in 1991, the Supreme Court ruled that the certiorari can be issued evenagainst administrative authorities affecting rights of individuals.
- Like prohibition, certiorari is also not available against legislative bodiesand private individuals or bodies.
- In the literal sense, it means ‘by what authority or warrant’. It is issued by the court to enquire into the legality of claim of a person to a public office.
- Hence, it prevents illegal usurpation of public office by a person.
- The writ can be issued only in case of a substantive public office of aermanent character created by a statute or by the Constitution. It cannot be issued in cases of ministerial office or private office.
- Unlike the other four writs, this can be sought by any interested person and not necessarily by the aggrieved person.