Constitutional Remedies

Article 31: Compulsory acquisition of property

Repealed by the Constitution 44th Amendment Act, 1978.

 Article 32: Remedies for enforcement of rights conferred by this Part

It provides right to move Supreme Court for the enforcement of Fundamental rights. To enforce the Fundamental rights  Supreme Court shall have power to issue 5 types of writs:

a.   Habeas corpus - It requires a person under arrest to brought before court.

·   This ensures that a prisoner can be released from unlawful detention.

·   This can be issued against State or Private Individual.

b.   Mandamus – Issued against public authority for enforcement of legal rights only.

·         Private rights cannot be enforced by this writ.

·         It cannot be issued against President or Governor.

c.    Prohibition – issued by a superior court against inferior court or quasi judicial bodies to prevent it from exceeding its jurisdiction.

d.   Certiorari- It is issued to quash the order passed by an inferior court or tribunal in excess of its jurisdiction.

Prohibition is available before the order is passed while Certiorari is available after the order is passed to nullify the order.

e.   Quo warranto – It is issued to prevent a person from holding a public office for which he is not authorized.

 Article 33: Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.

Parliament by law may determine to what extent any of the rights conferred by this Part shall apply to, -

a.                    the members of the Armed Forces; or

b.                   the members of the Forces charged with the maintenance of public order; or

c.                    persons employed by the State for purposes of intelligence or counter intelligence.

 Article 34: Parliament by law may restrict rights conferred by this Part while martial law is in force in any area.

Cultural and educational rights

Article 29: Protection of interests of minorities

1.   Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

2.   No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Article 30: Right of minorities to establish and administer educational institutions

•       All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
•       In granting aid to institutions, the State cannot discriminate against any institution on the basis of the fact that it is administered by a minority institution.
•       Right to administer does not mean that the State cannot interfere in case of maladministration.
•        Supreme Court held that the State can take regulatory measures to promote the efficiency and excellence of educational standards.
•        Supreme Court ruled that in case of aided minority institutions offering professional courses, admission could only be through a common entrance test conducted by State or a university.

Right to Freedom of Religion

• The objective of this right is to sustain the principle of secularism in India.
•  All religions are equal before the State and no religion shall be given preference over the other.

Article 25: Freedom of conscience and free profession, practice and propagation of religion

1.   All persons are entitled to freedom of conscience and are free to profess, practice and propagate religion subject to public order, morality and health,

2.   Nothing in this article shall prevent the State from making any law regulating  economic, financial, political or  secular activity associated with religious practice;

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

 Article 26: Freedom to manage religious affairs

Subject to public order, morality and health, every religious denomination shall have the right –

a.    to establish and maintain institutions for religious and charitable purposes;

b.    to manage its own affairs in matters of religion;

c.     to own and acquire movable and immovable property; and

d.     to administer such property in accordance with law.

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

No person shall be compelled to pay any taxes for the promotion of a particular religion.

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

1.   No religious instruction shall be provided in any educational institution wholly maintained out of State funds.

2.   Educational institution which is administered by the State but established under religious endowment can impart religious instruction.

3.   Educational institution recognized by the State or receiving aid out of State funds can impart religious instruction but it cannot compel its students to attend such instructions.

Right against Exploitation

Article 23: Prohibition of traffic in human beings and forced labour

•             Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
•             Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on ground only of religion, race, caste or class or any of them.

Article 24: Prohibition of employment of children in factories, etc.

No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous work.

Right to Freedom

The Right to Freedom is embodied in Articles 19–22.

Article 19

All citizens shall have the right -

    (a)    to freedom of speech and expression;

·  Freedom of the Press is not mentioned separately anywhere in the constitution. It is included in Freedom of Speech and Expression.

·  Also, Right to information is recognized under Freedom of Speech and Expression.

·  State by law can imposes reasonable restrictions on the exercise of this right in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

    (b)   to assemble peaceably and without arms;

·  State by law can imposes reasonable restrictions on the exercise of this right in the interests of the sovereignty and integrity of India or public order.

    (c)    to form associations or unions;

·   State by law can imposes reasonable restrictions on the exercise of this right in the interests of sovereignty and integrity of India or public order or morality.

·   It does not give right to strike.

    (d)   to move freely throughout the territory of India;

·   State by law can imposes reasonable restrictions on the exercise of this right in the interests of the general      public or for the protection of the interests of any Schedule Tribe.

    (e)    to reside and settle in any part of the territory of India;

·   State by law can imposes reasonable restrictions on the exercise of this right in the interests of the general public or for the protection of the interests of any Schedule Tribe.

(f)   to property*** (repealed by 44th constitutional Amendment 1978 and transferred to Art. 300A) right to property is no longer a fundamental right, though it is still a constitutional right.

        

(g)  to practice any profession, or to carry on any occupation, trade or business.

·   This cannot prevent the State from making any law for prescribing professional or technical qualifications necessary for practicing any profession.

Article 20: Protection in respect of conviction for offenses

Three types of protection are available under this article:

·   Ex-post facto legislation: An ex-post-facto law is a law which imposes penalties retroactively (i.e from back date).

A person can be punished for a offence only under the laws enforceable at the time of commission of the offence.

No criminal law can increase the quantum of punishment from the previous date.

·   Double jeopardy: No person shall be prosecuted and punished for the same offence more than once.

·   Prohibition against self incrimination: No person accused of any offence shall be compelled to be a witness against himself.

 Supreme Court of India is of the view that Narco, Polygraph or Brain mapping tests conducted on any person without their consent violates Right to Self-Incrimination guaranteed under Article 20(3).

Article 21: Protection of life and personal liberty

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

• In the A K Gopalan case of 1950, the Supreme Court was of the opinion that, in India, there exists “procedure established by law” which means that a law that is duly enacted by legislature is valid if it has followed the correct procedure. It gives legislative an upper hand and they may enact laws which may not be fair from a liberal perspective.
• However, in Maneka Gandhi vs Union of India case (1978) SC import the concept of “due process of law” from American Constitution which means that laws made by the legislature should be just and fair. Also, it gives authority to SC to examine the spirit of the law made by legislature.
• This article has become the most important article as Supreme Court has given this article widest interpretation. It has subsumed in it all the rights necessary for life e.g Right to clean air.
•  The right to life does not include the right to die, and hence, suicide is an offence.
• Article 21(A) (incorporated by 86th Amendment Act, 2002) it made the right to primary education part of the right to freedom. According to it, State would provide free and compulsory education to children from six to fourteen years of age.

Article 22: Protection against arrest and detention in certain cases.

            1.  No person shall be detained in custody without being informed of the grounds for such arrest.

Also, the arrested person has the right to consult a legal practitioner of his choice.

2.  The arrested person shall be produced before the nearest magistrate within  twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to court of the magistrate.

The detained person shall not be kept in custody beyond the period authorize by the magistrate.

3.                  The rights under clauses (1) and (2) are not available to -

·         enemy alien; or

·         Person detained under any law providing for preventive detention.

• Preventive detention shall not be extended beyond three months after which an Advisory Board will review.
• Preventive detention is an imprisonment that is not imposed as the punishment for a crime, but in order to prevent a person from committing a crime, if that person is likely to commit a crime.

Right to Equality

The Right to Equality is embodied in Articles 14–16.

Article 14

Article 14 declares that "the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India".

·     “Equality before the law” is an expression of English Common Law. It is a negative concept implying the absence of any special privilege in favour of any individual and the equal subjection of all classes to the ordinary law.

   The constitution of India guarantees Rule of law, as an aspect of “equality before the law” which means that no man is above the law and that every person is subject to the jurisdiction of ordinary courts of law, irrespective of his rank and position. Rule of law is a “basic feature”, so, it cannot be destroyed by amendment.

·         While "equal protection of laws" owes its origin to the American Constitution. It is a more positive concept employing equality of treatment under equal circumstances. This implies that state can make reasonable discriminations in favour of less privileged.

Exceptions: Under Art.361 President and governors are exempted for any criminal proceedings during their tenure.

                                   

Article 15

·    The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

The word ‘only’ signifies that State shall not discriminate only on the basis of religion, race, caste, sex, place of birth. However, discrimination can be made on the basis of other qualifications.

·    Nothing in this article shall prevent the State from making any special provision for women and children.

·    Nothing in this article or Article 29(2) shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.(1st Constitutional Amendment,1951).

·    According to 93rd Amendment Act, 2005 (w.e.f. 20-2-2006), State by law can make special provisions for socially and educationally backward classes of citizens or for SCs and STs  for their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions.

   Minority educational institutions were excluded in order to protect their identity.

·    This exception has been provided since the classes of people mentioned therein are considered deprived and in need of special protection.

·    This right can be enforced against the State as well as private individuals.

Article 16

It guarantees equality of opportunity in matters of public employment. It prevents the State from discriminating against anyone in matters of employment on the grounds only of religion, race, caste, sex, descent, place of birth, place of residence or any of them.

Exceptions:

         ·   Place of residence may be laid down by the legislature as a condition for particular classes of employment or appointment in any State or any local authority.

         ·   Further, the State may reserve any post or appointment in favour of any backward class of citizens, who, in the opinion of the State, are not adequately represented in the services under that State.

         ·    In addition, the offices connected with the religious or denominated institutions may be reserved for the members practicing that particular religion.

The right to equality in matters regarding public employment shall not be conferred to Overseas citizens of India, according to the Citizenship (Amendment) Bill'', 2003.

Article 17

• It abolishes "untouchability", and its practice in any form is made an offence punishable under the law.
• Protection of Civil Rights Act, 1955(amended in 1976) has been enacted by the Parliament to further this objective.

 Article 18

• It prohibits the State from conferring any titles other than military or academic distinctions, and the citizens of India cannot accept titles from a foreign state.
• Thus, Indian aristocratic titles and titles of nobility conferred by the British have been abolished. However, awards such as the Bharat Ratna have been held to be valid by the Supreme Court on the ground that they are merely decorations and cannot be used by the recipient as a title.

Fundamental Rights

• Part III of the constitution of Indian contains the fundamental rights.
• The fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity.
• These fundamental rights help not only in protection but also the prevention of gross violations of human rights.

Article 12 Says "State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

Under Article 13 power of judicial review is given to judiciary to prevent the encroachment of legislature on fundamental rights. It is adopted  from the Constitution of the United States of America .

Art. 13(1) Doctrine of Eclipse - All pre-constitutional laws, if in part or completely in conflict with the Constitution shall have all conflicting provisions deemed ineffective until an amendment to the Constitution ends the conflict.

Art. 13(2) provides, that State shall not make any law which can take away or abridges the fundamental rights, and any law made in contravention of fundamental rights shall to the extent of contravention can be declared null and  void by judiciary.

• Fundamental rights are justiciable, i.e., any violation of these rights can be questioned in a court of law.
•  Fundamental Rights are not absolute, and state can impose reasonable restrictions on their exercise. However, Rights under Art. 17 and Art.24 are absolute rights.

Rights against private individuals are mentioned under Articles 15(Right against discrimination), 17(Right against untouchability), and Right against Exploitation under Article 23 & 24.

Rights available to citizens of India only are under Articles 15, 16, 19, 30. 

Rights available to persons of any nationality upon Indian soil are under Articles 14, 20, 21, 25.

 In the Kesavananda Bharati v. State of Kerala case in 1973, the Supreme Court held that the Fundamental Rights could be amended, subject to judicial review in case such an amendment violated the basic structure of the Constitution.

Rights during emergency - President under Art. 359 can suspend Fundamental Rights, excluding Articles 20 and 21(44th Amendment). He suspend the right to constitutional remedies , thereby barring citizens from approaching the Supreme Court for the enforcement of any of the Fundamental Rights, except Articles 20 and 21, during the period of the emergency.