FUNADAMENTAL POST
#FUNDAMENTAL RIGHTS
Fundamental rights in Indian constitution are largely inspired by the 'Bill of Rights' in the American Constitution.
America is the first country to give constitutional status to a set of rights called Fundamental Rights.
The Rights under Part-III of Indian constitution are called Fundamental Rights as :
These rights are provided by the Fundamental Law of the Land i.e., Constitution
They are fundamental for any individual to attain his/her full physical, intellectual, and spiritual potential.
These rights are very much essential/fundamental for the realization of true democracy.
States cannot take away these rights and a law that is seen to be a violation of fundamental rights may be declared null and void.
These rights prevent the state from becoming arbitrary or authoritarian.
These rights are very much fundamental to a civilized society.
These rights are referred to as the cornerstone of Indian democracy.
Part-3 and Part-4 together constitute the conscience of the Constitution.
Fundamental Rights primarily empower citizens against the Government.[Fundamental Rights primarily provides protection to an individual against the actions of the state.]
However, some Fundamental Rights are available not against the state; Examples: Right against Exploitation, Right against Untouchability.
Fundamental Rights are not absolute in nature but are subject to reasonable restrictions and responsibilities attached to them.
DIFFERENCE BETWEEN FUNDAMENTAL RIGHTS AND ORDINARY LEGAL RIGHTS
While ordinary legal rights are protected and enforced through ordinary law of the legislature, Fundamental Rights are protected and guaranteed by the Constitution itself.
Ordinary rights may be changed by the legislature through an ordinary process of law-making, but Fundamental Rights may be change only by amending the Constitution.
In the case of violation of Fundamental Rights, the aggrieved can approach the Supreme Court directly whereas in case of violation of ordinary legal rights, he/she gets relief by approaching the subordinate court or High court, but not directly the Supreme Court.
DOCTRINE OF ECLIPSE:
According to Article 13(1), all the laws enforced in India immediately before the commencement of the Constitution shall be unconstitutional and void if they violate one or more provisions of Part-III of the Constitution to the extent of such violation.
This doctrine states that any law that violates fundamental rights is not null or void ab initio, but is only non-enforceable, i.e., it is not dead but inactive.
In Bhikaji Narain Vs. State of Madhya Pradesh 1955 case, Supreme Court held that,
" If a pre-constitutional law is important, it cannot be declared as unconstitutional on the grounds that it violates the Fundamental Rights rather the law can be brought under the shadow of the Fundamental Rights by applying Doctrine of Eclipse.
i.e., the law will not be scrapped but it will not be enforced also and can be enforced on the people whose Fundamental Rights are not being violated by this law. In the future, if an amendment in the FR is able to remove the conflict between the law and the Fundamental Right in that case the law can be enforced normally".
In Deepchand Vs. State of UP, 1955 case, Supreme Court held,
" The protection under the Doctrine of Eclipse can be extended only to a pre-constitutional law and not to a post-constitutional law since this post-constitutional law which is violating a Fundamental Right is unconstitutional Ab Initio and thus cannot be protected under the Doctrine of Eclipse."
In Ambika Mills Vs. State of Gujarat case, 1974, Supreme Court held,
" Doctrine of Eclipse can be extended onto a pre-constitutional law as well as a post-constitutional law provided it is important enough."
AMENDABILITY OF FUNDAMENTAL RIGHTS
Article 13(2) states that the state shall not make any law that takes away or abridged one or more fundamental rights.
Any such law passed by the Parliament, then it shall be unconstitutional or void to the extent of its inconsistency.
However, seemingly against the spirit of Article 13(2), the first amendment Act 1951 amended the provisions of Part-III i.e., introduced Article 15(4) which apparently was a bridging Article 15(1).
The First Amendment Act also amended Article 19(6) through which reasonable restrictions were put on the Right to the occupation.
The First Amendment Act also introduced the 9th Schedule to the constitution which took away the power of judicial review of the court with respect to the laws in the 9th Schedule even when they were violating Fundamental Rights.
The changes done through the First Amendment Act were challenged.
In Shankari Prasad Vs. Union of India case 1951.However, the ruling came in the favour of Parliament. The SC held that :
Parliament has got 2 types of legislative powers: Ordinary and Constitutional legislative powers.
The Act of Parliament using ordinary Legislative power will be called LAW and cannot be used to have an adverse effect on Fundamental Right because of Article 13(2).
However, Act of Parliament under Article 368 will be seen as a constitutional amendment which is not covered in the definition of law as given in Article 13(3) and will thus be not violative of Article 13(2) even if it will have an effect on FR.
Thus the Court held in this case that through Article 368 Parliament can amend any Part of the constitution including FR.
However, in Golaknath Vs. State of Punjab 1967 , Supreme Court overruled its earlier decision and held that :
Article 368 contains the procedure to amend the constitution, but it did not confer the Parliament with the power to amend the Constitution and therefore, Parliament cannot use Article 368, i.e., the Parliament can amend any part of the Constitution including fundamental rights.
So the Parliament responded by enacting the 24th Amendment Act, 1971 which amended the title of 368 which now read "The Procedure and Power to amend the Constitution".
In, Kesavananda Bharati Vs. State of Kerala, 1971 case, the 24th Amendment Act, 1971 among the other things were challenged before the Supreme Court but the court upheld the constitutional validity of the 24th Amendment Act, 1971 and held that :
Parliament by the virtue of its powers under Article 368 can amend any part of the Constitution including fundamental rights but no amendment should destroy or disturb the basic structure of the Indian constitution.
However, the Supreme Court did not define what the 'Basic Structure' is though in a number of cases, the Supreme Court has indicated that the provisions in the Indian Constitution which together form the basic structure of the Indian Constitution.
Basic Structure includes those provisions of the Indian Constitution without which the Indian Constitution may lose its basic character.
For example, the mandate to build a welfare state, sovereignty of India, separation of power, judicial review, Federalism, Rule of Law, Secularism, Socialism, Access to justice, Equality, etc.
CLASSIFICATION OF FUNDAMENTAL RIGHTS:
Rights related to equality: Articles 14 to 18;
Rights related to freedom: Articles 19 to 22;
Rights related to Exploitation: Articles 23 and 24;
Rights related to Religion: Articles 25 to 28;
Rights related to Education and culture: Articles 29 and 30;
Right to Constitutional Remedies: Article 32.
RIGHT TO EQUALITY [ARTICLE 14 - 18]
ARTICLE 14: Equality Before Law and Equality protection of Laws
The state shall not deny any individual right to have : (a) Equality before law or (b) Equal protection of the law.
a) Equality before law:
The concept originated in England.
It's a negatively worded concept as it means the absence of any special privileges in favour of any person.
This means all persons irrespective of rank or position are equal before law and they shall be treated equally by the law.
This implies jurisdiction equality but not complete equality i.e., all persons shall be subjected to the ordinary jurisdiction of the court and all can sue and can get sued before the court.
EXCEPTIONS TO THE CONCEPT:
President or Governor is not answerable to the court of law for discharging his official functions.
No criminal proceedings whatsoever can be started or continued against the President or the Governor.
No civil proceedings in a case where a relief is claimed can be started against the President or Governor except before serving a 2 -months notice.
There are some articles that are exceptions to the equality - ARTICLE 361A, ARTICLE 105, ARTICLE 194, ARTICLE 31C.
Foreign diplomats have also been provided with some immunities under law or privileges given to MPs or MLAs etc.
RULE OF LAW
The concept of the Rule of Law originated in England has been incorporated in the Indian Constitution under the idea of equality.
Equality before the law is a big hallmark[లక్షణం] for the Rule of Law.
Rule of Law means Lex Supremus i.e., the law is supreme and there is absolute supremacy of the country as opposed to the influence of any arbitrary power.
It is the adoption of the Rule of Law which has changed the concept of administration from Rex Lex[king is law] to Lex Rex[law is king] which is very essential in maintaining law and order, and stability in the country.
The Supreme Court declared the Rule of Law as part of the basic structure of the Indian Constitution.
Rule of Law has got 3 principles:
No man can be punished or made to suffer except for violation of law i.e., there is no arbitrary treatment. Such a violation of law shall be established in an ordinary court of the land.
All persons are subject to the ordinary law of land without any distinction.
It is the modification of the third principle of rule of law in England as in England every action of Legislature is considered a law. However, in India, laws passed by the legislature are valid laws only when they are consistent with the provisions of the constitution.
EQUAL PROTECTION OF LAWS
The concept originated in the US; It is a positively worded concept which means equality of treatment in equal circumstances.
That means Like should be treated Alike.
Equal protection of laws does not mean the uniform application of laws under all circumstances rather it demands that situational variations shall be taken into account before applying the law. Thus, article 14 guarantees equality among equals.
Equal protection of laws provides for positive or protected discrimination under which reservation policies and other welfare steps in the favour of weaker sections are justified.
ARTICLE 15: PROHIBITION OF DISCRIMINATION ON GROUNDS OF RELIGION , RACE, CASTE, SEX, OR PLACE OF BIRTH
Article 15(1):
The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.'
This means that these conditions alone are not sufficient grounds to have discrimination done under equal protection of the law.
However, if these conditions are accompanied by some other circumstances or factors then discrimination can be made but that will be for equal protection of the law.
Article 15(2):
This article is fighting with multiple social evils like gender bias, casteism, communalism, regionalism, etc.
Access to public places such as parks, hotels, hospitals or wells, tanks, ghats, roads maintained out of state funds.
Article 15(3)-
This article shall prevent the State from making any special provision for women and children.
Article 15(4):
It empowers the state to make special provisions for the advancement of socially and educationally backward classes or scheduled castes and scheduled tribes.
Introduced through the First Constitutional amendment Act, 1951.
Article 15(5) :
It empowers the state to make special provisions for admissions of backward classes of citizens in educational institutions whether public or private including unaided private educational institutions except in minority educational institutions.
Introduced through the 93rd Constitutional amendment Act, 2005.
Article 15(6) :
This provides a reservation of 10% for economically weaker sections in educational institutions whether public or private; aided or unaided except minority educational institutions.
Article 16 - EQUALITY OPPORTUNITY IN PUBLIC EMPLOYMENT
Article 16(1)-It provides for the equality of opportunity for citizens in having access to public employment
Example-earlier when submission of forms in UPSC, the people from Northeast were given an extended deadline for the submission of forms
Article 16(2)-Prohibits the state from discriminating against citizens only on the grounds of religion, race, caste, sex, place of birth, residence, descent, or any of them in having access to public employment
Example-Singling out an individual on the above-mentioned grounds, A public employment(job) not open for the people from the state of X, Y, Z, etc.
Example-TNPSC placing the Tamil language as a criterion in public employment
Article 16(3)-State can prescribe residence as a ground or qualification to have public employment (or)
Article 16(3) empowers the Parliament to provide by law"residence" as a ground or qualification in certain categories of public employment under the state. ( Such a law can be made only by the parliament and not by the state legislature)
Article 16(4)-Reservation in public employment for backward classes (or)
Article 16(4)Empowers the state to make special provisions in the favour of a backward class of citizens of reserving the post of the nature of public employment if the said Backward class is socially and educationally backward and is not adequately represented in services under the state.
Article 16(5) empowers the state to prescribe religion as a ground or qualification in certain categories of public employment
Article 16(6) It was added through the 103rd Amendment Act, which empowers the state to provide for reservation in government posts upto10% for the economically weaker sections
B P Mandal Commission (1979)
On the basis of the recommendation of the Mandal commission which had identified around 3750 castes as socially and educationally backward, the government declared them OBCs and gave them to 27% reservation in public employment that lead to the famous case Indira Sawhney Vs Union of India case 1992 or Mandal Case in which the SC clarified the legal position on the reservation policy in public employment
Indira Sawhney Vs Union of India Case( 1992) or Mandal case
Court held that the 27% reservation to OBCs in public employment was constitutionally valid.
However, the court directed the state(govt.) to identify the creamy layer among OBCs and remove them from the benefit of reservation
SC also held that ordinarily, reservation in the favour of backward classes shall not exceed 50% of the total seats, ordinarily
Reservation can be given to backward classes only at the entry stage i.e at the time of recruitment and not in promotion.
Therefore, SC declared reservation for SC/ST in the promotion to be unconstitutional and void.
A permanent statutory body should be established to examine complaints of over inclusion and under inclusion in the list of OBCs
However, to counter this, Parliament responded by introducing Article 16(4A), in the constitution through the 77th Amendment act of 1995
77th Amendment Act(1995)-It provides for reservation in promotion for SC/ST
Nagraj Vs Union of India( 2006)
SC in Nagraj Vs Union of India( 2006), reiterated that reservation policy in order to be valid shall have to satisfy the following five requirements-:
1) The said class of citizens must be socially and educationally backward
2) The said class of citizens should not be adequately represented in the public services
3) Concept of creamy layer shall apply in the case of OBCs
4) The overall reservation of seats in the favour of backward classes shall not exceed 50% of the total seats normally
5) Overall efficiency of the service and administration must not be adversely affected
Article 17
Article 17 is provided in absolute terms without any exception, neither the constitution of India nor parliament defines untouchability, in fact, the judiciary defined it as a social practice where a person on the basis of his/her birth in a particular caste is looked upon down and discriminated wrongly
In 2018 in the Sabarimala case, SC clarified that considering any individual or group as impure or polluted and discriminating against amounts to practicing untouchability them
Untouchability Offences Act (1955), which prescribed punishment for practicing untouchability has been strengthened in the form of the Civil rights Protection Act( 1976)
Article 18
Article 18 (1) prohibits the state from conferring any title except in the form of military or academic achievement
National awards (or) Padma awards are not be used as titles, rather they are awards, and thus the awardee is not to use them as a prefix or suffix with their name
Under Article 18(2), citizens of India are prohibited from accepting any title from a foreign state
Under Article 18(3), a foreigner holding office of profit or trust under the Indian state, then he/she can accept a title from the foreign state only with the consent of the Indian president.
ARTICLE 19:PROTECTION OF SIX RIGHTS REGARDING TO FREEDOM
Article 19 confers six fundamental freedoms
Article 19 (1)(a):-
Freedom of speech and expression, guarantees to all citizens a fundamental right (FR)to speech and expression after Article21
Article 19(1)(a), has undergone most liberal interpretation at the hands of the judiciary
SC declared that right under, Article 19 (1)(a) is an inalienable extension of the Right to life guaranteed under Article 21
Judiciary has given the following meanings to right to speech and expression:-
1) National flag hoisting is a way to express one's feelings towards the country and thus it becomes an FR under Article 19(1)(a) in Naveen Jindal Vs Union of India case 2004
2) Sports also a way to express oneself, therefore participation in sports is a derived FR under Article 19 (1)(a)
3) This right also includes the right to political dissent, i.e right to defer from the views of the government, this has lead to the growth of multiparty democracy
4) The freedom to speech and expression also means the right of a citizen to express the views and opinions of others also as an FR, this lead to the growth of the free press
5) Court also held that freedom to speech and expression also includes the right to have access to information and the RTI Act tells us how we can access the information as our FR
The right to freedom of speech and expression is not limited by the boundaries of the country and citizens enjoy them, even while traveling abroad
The right to freedom of speech and expression is not an absolute right, rather is a restricted right and can be restricted on the grounds of security and sovereignty of India, morality and decency of the society, defamation, public order, and contempt of court, etc.
Article 19 (1)(b):-
It guarantees to every citizen right to assemble in a peaceful way, to hold meetings, and taking out processions
Article 19 (1)(c):-
Guarantees an FR to form an association of any type which includes the right to form a political association, trade union, or even cooperative society( 97th Amendment Act of 2011)
This article does not mean an FR to strike, Right to strike maybe a legal right but not an FR
With respect to Bandh SC held that Bandh is illegal because this involves an element of force and it disturbs public life besides causing a complete shutdown of business.
Article 33 empowers the parliament of India to impose restrictions on FR including the right to form association available to security forces in the interest of the security of India
Article 19 (1)(d):-
Guarantees an FR to move freely throughout India, i.e no part of India shall be made inaccessible to the citizens of India
However, free movement can be restricted on the ground of security of India, public order, tribal interest, health, etc.
Article 19 (1)(e):-
Guarantees to every citizen an FR to residence
Article 19 (1)(f):-
Provides an FR to property to citizens but after the 44th Amendment Act of 1978, this has been removed from part 3 from the constitution and made a right under Article 300 A of the Indian constitution
Article 19 (1)(g):-
Guarantees an FR to vocation, i.e a profession or trade of one's choice
However, the state can impose certain restrictions on it in the form of qualifications in the public interest, the state can even take over a business or trade either partially or completely in the public interest
ARTICLE 20: PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES
Article 20 provides for three protections with respect to the conviction for certain offenses
Article 20(1):-No Ex-Post-Facto Law :Prohibits the state from enacting ex-post-facto criminal legislation, i.e criminal law cannot be given a retrospective effect particularly if the law has been made harsher
Article 20(2):-No double jeopardy : Prohibits the state from practicing double jeopardy, this means that no person shall be punished more than once in the court of law for the commissioning of a single offense
However, if a civil servant is removed or dismissed from the services by his department on the basis of his criminal conviction in a court of law, then that is not seen as double jeopardy, because the department is not the court of law
Article 20(3):- No self incrimination: No individual can be compelled to give self-incriminating evidence.
However it does not extend to it:
(1) compulsory production of material objects
(2)compulsion[to be forced] to give a thumb impression, specimen signature, blood samples.
(3) compulsory exhibition of the body.
ARTICLE 21:PROTECTION OF LIFE AND PERSONAL LIBERTY
No person can be deprived of his life or liberty except according to the procedures established by law.
This right is available to both citizens and non-citizens.
It guarantees all individuals the right to life and personal liberty.
As per the Supreme Court, Article 21 does not merely provide for the right to Life rather a right to a dignified life.
It could be seen that all the FRs of Part-III and DPSPs ultimately aim to extend this quality of life to people.
Therefore, Article 21 is considered as the backbone of Part-III and Part-IV.
All the FRs actually revolve around Article 21 and without this right to life enjoyed by an individual all the FRs become meaningless.
The Supreme Court observed that Article 21 is not a single right rather it is a composite right that has given rise to the largest number of derived/inferred FRs.
For example, the Right to primary education, Right to Shelter, Right to privacy, Right to Speedy and fair trial, Right to corruption-free administration, Right to clean environment, Right to reputation, Right to go abroad, Right to Marry, etc.
It is Article 21 which brings out the difference between a Police state and a Constitutional state.
In the famous Gopalan case 1950 , the supreme court held that protection under article 21 is available against executive action and not from arbitrary legislative action.
PROCEDURE ESTABLISHED BY LAW
The concept of procedure established by law(PEBL) originated in the UK.
Under this doctrine, when a person is deprived of his life or liberty then the court will examine whether there is a law in existence that authorizes the executive to deprive the individual of his life and liberty.
Further, the court will examine whether the law has been passed by a competent legislature or not and has the legislature followed the procedures correctly or not while passing the law.
The court, however, will not examine the fairness of the law or the motive of the legislature behind the law, and hence the court cannot declare the law unconstitutional and void-because the doctrine of procedure established by law relies more on the good sense of legislature and the strength of public opinion in the country.
This doctrine of PEBL provides protection to the individuals against the arbitrary action of the executive but not that of the legislature.
DUE PROCESS OF LAW
The concept of due process of law (DPL) originated in the USA. It confers greater power on the judiciary.
Under this doctrine, the courts while examining a law will not only look at the law from the point of view of the competence of the legislature that passes the law and also whether the legislature followed proper procedures while enacting the law.
But will also subject the law to check whether the law is fair or not by applying the principles of natural justice that DPL extends protection to an individual both against the arbitrary action of the executive as well as legislature.
The Supreme Court held that our Constitution under Article 21 has provided only for PEBL . However, the Supreme Court in the Maneka Gandhi case in 1978, interpreted Article 21 to include the doctrine of DPL by reading that principles of natural justice are an integral part of Article 21.
PRINCIPLES OF NATURAL JUSTICE
This consists of three principles:
Nobody must be punished unheard.
Nobody should be the judge of his own case.
Authority must act bonafide i.e., in good faith.
The purpose of these principles is to exclude the chances of arbitrariness in decision-making and prevent misuse of power.
They emphasize that action must be supported by a justified reason according to the Supreme Court of India, these principles are universal in nature as they are binding on all authorities including judiciary, private individuals, and all other organizations.
These principles are not explicitly mentioned but still, they are very much inherent principles of the Indian constitution.
The Supreme Court held that these principles are implicitly found under Article-14 and Article -21.'These principles are so important for the orderly functioning of the state that they can be regarded as part of the Basic Structure of the Indian Constitution.
ARTICLE 21A:RIGHT TO ELEMENTARY EDUCATION
It Introduced through the 86th Constitutional Amendment Act, 2002.
The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.
Thus, it is a fundamental right of children of age 6-14 to get free education which can be enforced upon the state and compulsory education will be the responsibility of parents and the state.
Parents also have the fundamental duty to send the child to school if he is of the age group 6-14. Therefore 86th CAA, 2002 also introduced a fundamental duty under Article 51A(k).
ARTICLE 22:PROTECTION AGAINST ARREST AND DETENTION
Article 22, extends protection during arrest and detention in certain cases
However, this article does not guarantee a fundamental right(FR) against arrest and detention
It only provides protection to an individual, in case he is been arrested or detained
Therefore Article 22 comes into play after arrest and not before that.
Detention is of two types namely, punitive and preventive detention
Article 22, confers three rights on a person who is being arrested or detained:-
1) No person who is arrested shall be detained in custody without informing him about the ground of his arrest
He shall be entitled to consult an attorney of his choice and defend himself
SC, in 1994, held that an arrested person has the right to have his family, relatives, or any known person informed of his arrest so that he is in a position to defend himself
Further SC, held that a person cannot be arrested merely on the grounds of suspicion and the arrest of the person shall be recorded in the official diary
2) The arrested person shall be produced before the nearest judicial magistrate within 24 hours of arrest, excluding the time of journey
3) No person shall be detained in the custody beyond a period for which his detention was authorized by the magistrate
Under Article 22, the above three protections are not available to the person, detained under preventive detention law or to an enemy alien.
ARTICLE 23: PROHIBITION OF TRAFFIC AND FORCED LABOUR IN HUMAN BEINGS
Article 23(1) prohibits traffic in human beings, begar and other forms of forced labour
The expression ‘traffic in human beings includes:
Selling and buying of men, women and children like goods.
Immoral traffic in women, children and also in prostitution.
Devadasis
Slavery
The term begar means compulsory work without remuneration.
The term ‘forced labour’ means compelling a person to work against his will.
To prevent this government made several laws
Bonded labour system Act, 1976
The minimum wages Act, 1948
The contract labour Act, 1970
The Equal remuneration Act, 1976
To punish this parliament made Immoral traffic (prevention)Act,1956.
Article 23(2) empowers the state to provide service with or without payment provided it is in the public interest.
ARTICLE 24:PROHIBITION OF EMPLOYMENT OF CHILDREN IN FACTORIES
Article 24 prohibits the employment of children below 14 years in hazardous employment
As per, Child labour prohibition and regulation Act 2016, a child less than 14 cannot work anywhere except any family enterprise or entertainment industry, but only after school, a child with age 14 years to 18 years, cannot work in hazardous employment, though he can work in non-hazardous areas
Though this law is a good initiative to bring down child labor, however, it has given a very broad definition of family and has reduced the number of hazardous employment considerably
ARTICLE 25 TO ARTICLE 28 (RIGHT TO RELIGION)
ARTICLE 25: FREEDOM OF CONSCIENCE AND FREE PROFESSION, PRACTICE AND PROPAGATION OF RELIGION.
Article 25, guarantees to all individuals twofold freedom of religion which includes:-
1) Right to freedom to conscience
2) Right to profess, practice, and propagate a religion of one's choice
Note-In this context, religion means faith and not necessarily belief in god
Freedom of conscience means absolute inner freedom of an individual to mold his religious belief and faith
When this inner freedom takes an outward expression, then it relates to the right to profess, practice, and propagate a religion of one's choice
Right to profess includes, right of an individual to spell out his religious belief openly and freely
Right to practice includes the right to follow the rituals, prescribed by one's religion and this includes displaying the symbol and signs, which are associated with one's religion
Right to propagate means to spread one's own religion through various ways
SC, in Father Stanislaus Vs State of Madhya Pradesh case (1977), held that FR of a person, to spread his religion by explaining the content cannot be questioned
However, there is no FR to convert others to one's own religion
SC made a distinction between religious faith and belief on one hand and religious conduct and practice on other
In the case of faith and belief, the FRs enjoyed by the individual is absolute and the state cannot interfere with it anyway
However, in case of conduct and practice the state is free to regulate them in the larger public interest.
ARTICLE 26: FREEDOM TO MANAGE RELIGIOUS AFFAIRS
Article 26, deals with the freedom of a religious denomination to manage its affairs, subject to public order, morality, and health
It also allows religious denomination to own and acquire property and administer it as per law
It also allows them to establish and maintain an institution for religious and charitable purposes.
ARTICLE 27:FREEDOM FROM TAXATION FOR PROMOTION OF A RELIGION
Article 27, brings the true secular nature of the Indian state
Under which, the state is prohibited from spending the tax collections for the promotion and maintenance of any particular religion
However, Article 27 does not prohibit the state from spending tax collections for the promotion and maintenance of all religions without any discrimination
Similarly, Article 27 does not prohibit the state from spending non-tax collections collected in the form of fee or donation to spend for the promotion or maintenance of any specific religious denomination.
ARTICLE 28: FREEDOM FOR ATTENDING RELIGIOUS INSTRUCTIONS
Article 28 deals with imparting religious instructions in educational institutions, it divides educational institutions into four categories:-
1) Educational institutions(EI) that are completely owned and administered by the state
2) Educational institutions that are privately owned and managed but aided and recognized by the state
3) Educational institutions that are private but unaided by the state but recognized by the state
4) Educational institutions that are managed by the state but established through religious endowments or charitable trust
In the 1st category of EIs no religious instruction whatsoever can be imparted
In the 2nd and 3rd categories of EIs, religious instructions can be imparted but students cannot be compelled to attend them
In the 4th category of EIs, religious instructions can be imparted and can be made compulsory also
ARTICLE 29- PROTECTION OF INTERESTS OF MINORITIES
ARTICLE 29 provides for the protection of the rights of minorities.
ARTICLE 29(1)- Any section of the Indian citizens, residing in India having a distinct language, script, and culture shall have the right to conserve the same.
The language of Article 29(1), extends it to all sections of the citizen who are residents of India
This article provides that any section of Indian citizens residing in India having a distinct language, script, or culture of its own shall have the right to conserve the same
ARTICLE 29(2)-No citizen can be denied admission in an educational institution, which is managed by the state and or aided by the state only on grounds of religion, race, caste, language, or any of them.
ARTICLE 30 deals with the rights of the minority community to establish and administer educational institution
ARTICLE 32- RIGHT TO CONSTITUTIONAL REMEDIES
Article 32 confers the power on SC to issue appropriate orders, directions, or writs to enforce the fundamental rights(FR) if they are found violating
Article 32 allows the individual, to directly approach the SC, in case of violation of FR
Thus Article 32 contains the legal remedy if the FR of an individual are violated
Thus, it is Article 32 which makes all other FRs real and enforceable, thus Article 32 provides teeth to all other FR to bite
Article 32 is extremely important for the functioning of the Indian constitution and thus achieve a healthy democracy
For all the above reasons, Dr.Ambedkar described Article 32 as the heart and soul of the Indian constitution
Article 32(2) is a writ jurisdiction of SC, the concept of writ jurisdiction has been adopted from England
Under Article 32 writ jurisdiction enjoyed by SC and under Article 226 to HCs
Writ jurisdiction allows the courts to issue writs for the enforcement of the right of individuals
Writ jurisdiction also implicitly confers the power of judicial review to SC and HCs
Under Article 32(3), parliament has the power to confer the power of writ jurisdiction by means of law on any other body
Using this law Parliament enacted, administrative tribunals Act, 1985, which conferred the writ jurisdiction on to bodies like CAT, SAT, JAT, etc
TYPE OF WRITS
HABEAS CORPUS:-
Literally means to have the body
When an individual is detained, without legal justification by authorities or any other private entity or he is missing then the writ of Habeas corpus can be issued by the court, ordering that the person be produced before the court, so that the court can set him free
This writ can be filed before the court by an individual and organization and not necessarily by the person himself
Thus the principle Locus standi may not apply in the case
The principle of Locus standi, is the right of the person to go to the court, to get his rights implemented
MANDAMUS:-
Literally, means command, this writ is issued in nature of command by the judiciary against a public authority or a person holding a public office
The purpose of mandamus is to command a public authority or official, to do or not to do certain acts, which are in the nature of public duty
Can be issued to implement a public or legal right but not a private right
Cannot be issued to president and governor
Cannot be used against a public authority, it is making use of its discretionary powers
PROHIBITION:-
This writ is issued only against a judicial or quasi-judicial body to ensure that, the body remains within the limits of its jurisdiction, if such a body takes up a case by going beyond its jurisdiction then the writ of prohibition is issued, which prohibits them from proceeding with the case
CERTIORARI:-
Similar to prohibition, except that it is issued to quash a judgment, direction, or order issued by a judicial or quasi-judicial body, by going beyond its jurisdiction
Quo-Warranto:-
Literally means, "what is your authority"
The purpose of this writ is to ensure that a person holding a public office is qualified or competent enough to hold that office
ARTICLE 32 VS ARTICLE 226
Article 32:-
Supreme court(SC) can issue writs only for the enforcement of FRs but not any other legal right
It is itself is a fundamental right(FR)
The constitution places a duty on SC if found violated. Thus SC has to implement FR if found violated
The writ jurisdiction of SC under Article 32 extends to over all of India
Article 226:-
It is not an FR
High courts can issue writs, not only for the enforcement of FR but also for other legal rights
No such constitutional boundation on HCs to implement FR if found violated. Therefore HC may or may not implement these rights and may suggest some other remedy in its place of implementing these rights
The writ is limited by territorial jurisdiction
Note-Thus, we can see that the writ jurisdiction of high courts is a bit more than the Supreme court as under Article 226 HCs can issue writs not only for the restoration of FR but also other legal rights, whereas under Article 32 has the power to issue writs only for the restoration of FRs
Comments
Post a Comment