5e. Polity - Fundamental Rights

7/23/2019 5e. Polity - Fundamental Rights

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Chapter in Detail:

Ques. 1 What is a right? What are various kinds of Rights?

Ans. A right is a legal claim that a citizen or any other individual is granted by the Constitutionor any statute. For example, right to life. It means the individuals life can not be abridged orabolished by any one except in a manner that is prescribed in law If any one violates the right

illegally, the individual can approach the court that investigates into the case and renders ustice.

!ights are the essence of democracy as they empower the individuals and enable to develop.!ights are generally associated with e"uality in contemporary times and establish a level playing

field among the people#rich and poor$ men and women$ and various social groups. %hus, they are

egalitarian in nature. %hey are a protection against the &overnment actions. !ights may beassociated with obligations, there being very few absolute rights. For example, !ight to

'ducation that is made a Fundamental !ight by the insertion of Art ()A by the Constitution *+th

Amendment Act (( in India may confer the obligations on some citizens of the country to pay

taxes that contribute to the revenues necessary to implement the right. Fundamental -uties thatwere inserted into the Constitution by the Constitution /(nd0 Amendment Act )12+ are the

obligations that citizens are expected to discharge. Fundamental -uties in Art. 3) A re"uire the

citizens to contribute to national and social development.

Various Kinds of Rights

4atural !ights5 %hese are universal rights which is inherent in every individual being a part of

human nature. %hey are not conferred by law but only recognised and made enforceable by law.

For example, right to life. 6uman !ights5 6uman rights are similar to natural rights in the sense

that they are universal and are intrinsic in human nature. %hey are needed for dignified humanlife and are enoyed irrespective of social, political and other considerations. %hey are contained

in 7nited 4ations 7niversal -eclaration of 6uman !ights )1/*.

Civil Rights:%hese are the rights that citizens of a country enoy and are conferred by theConstitution or the law of the country. Civil rights may differ from one country to another while

human rights are universally enoyed by all.

Constitutional !ights 5 %hey are rights enshrined in the Constitution. 8ome enoy special status

as Fundamental !ights and some others do not enoy such status9 for instance, outside part IIIof the Indian Constitution other than Fundamental !ights0.

Fundamental !ights5 %hey are a branch of civil rights and are given higher importance in India

as they are defended by the 8upreme Court directly. 8ome Fundamental !ights are confined to

citizens only while others are open to all. For example, Art. )3, )+, )1, ( and (1 in the Chapteron Fundamental !ights in the Indian Constitution :art III0 are available to Indian citizens only.

%hey are essential for human development, democracy and social progress.


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Ques. 2 : Fundaental Rights are fundaental in nature and is essential for the fuller

developent of an individual. Dis!uss?

Ans. Fundamental !ights are important for the individual to live with dignity and the society toevolve meaningfully. Constituent Assembly of India borrowed the concept of Fundamental

!ights from American Constitution where they are found in the ;ill of !ights. In fact,Fundamental !ights are given so much importance that if they are violated, the aggrieved

individual can approach the 8upreme Court of India directly Art.,

78A and France that had detailed provisions for the recognition and protection of individualrights in their Constitutions5 ;ill of !ights of 7>, ;ill of !ights of 78A and -eclaration of

!ights of =an of France.

Fundamental !ights essentially safeguard individuals from any arbitrary 8tate actions, but some

rights are enforceable against private persons as well. For example, abolition of untouchability

Art.)20 is a limitation on 8tate action as also on individual actions.

Art. )3, )+, )1, (1 and


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%he 8upreme Court upheld the power of the :arliament to amend the Fundamental !ights from

the commencement of the Constitution till the &ola? 4ath case verdict in )1+2. ;ut in the &ola?

4ath case ruling, it held that :arliament could not amend the Fundamental !ights as these rightsenoy a @transcendental status under the Indian Constitution. ;ut in the >eshvananda ;harati

case )12esavananda ;harati vs. 8tate of >erala case, the 8upreme Court laid down the concept ofbasic featuresB of the Constitution. %he apex court ruled that basic features cannot be amended

by the :arliament. hat is meant is that the basic features cannot be restricted or violated but

there is scope of enrichment and amplification. 6owever, the legality of such amendment is opento udicial "uestioning by the 8upreme Court. Fundamental !ights are not classified as a basic

feature but if they are violated and there is no clear public purpose served by the violation, the

violative law can be partially or wholly struc? down by the Apex Court. %he -octrine of ;asic8tructureB that was introduced in the >esavananda ;harati vs 8tate of >erala )12


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to life, liberty and property. In the 78A, the 8upreme Court scrutinizes the law as it is made and

implemented to ensure that @due process is followed. Dtherwise, it is nullified.

-ue process of law includes such constitutional re"uirements as ade"uate notice, assistance ofcounsel, and the rights to remain silent, to a speedy and public trial, to an ury, and to confront

and secure witnesses. %he constitutional guarantee of due process of law, found in the Fifth andFourteenth Amendments to the 7.8. Constitution, prohibits all levels of government from

arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, andproperty.

udi!iar0 Dedu!ed Rights/ or #nferred Rights? or Derived

Rights

In recent years, courts have been expanding the scope of the !ight to life and liberty. Art. () has

been enriched in a number of cases to safeguard the rights of different sections of the society5

%he Article has been invo?ed to give right to elementary education, protect the rights ofprisoners, the rights of inmates of protective homes, right to legal aid, right to speedy trial, right

of release and rehabilitation of bonded labour, right to health, and right to healthy environment.

In Francis Coralie vs. 7nion %erritory of -elhi )1*)0 former Chief ustice of India :. 4.

;hagwati said .the right to life includes the right to live with human dignity and all that goesalong with it, namely, the bare necessities of life such as ade"uate nutrition, clothing and shelter.

!elying on Francis Coralie, in ;andhua =u?ti =orcha vs. 7nion of India )1*/0 where the

"uestion of bondage and rehabilitation of some labourers was involved, ustice ;hagwati

observed5 @It is the fundamental right of everyone in this country... to live with human dignity,

free from exploitation. %his right to live with human dignity enshrined in Art. () derives its lifebreath from the -irective :rinciples of 8tate :olicy and particularly clauses e0 and f0 of Art.


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citizen on the basis of religion, race, caste, sex, or place of birth. 'very person shall have e"ual

access to public places. hile e"uality for all is guaranteed, affirmative action in favour of

deprived groups is constitutionally allowed# for women, children, scheduled castes or scheduledtribes and certain other social groups. :ractice of untouchability has been declared an offence

and anyone practicing it is punishable by law. %he 8tate cannot confer any titles and citizens of

India cannot accept titles from a foreign 8tate, without the permission of the &overnment ofIndia. %he titles of !ai ;ahadurs and >han ;ahadurs are also abolished. 6owever, military and

academic distinctions can be conferred on the citizens of India. %he awards of ;harat !atna and

:adma ;hushan and Gibhushan cannot be used by the recipient as a title and does not,accordingly come within the constitutional prohibitionB. %he 8upreme Court )1130 upheld the

validity of such awards.

Right to Freedo

It is given in

Articles )1, (, () and (( of the Constitution of India, with a view of guaranteeing individualrights that were considered vital by the framers of the Constitution. %he right to freedom

encompasses the freedom of speech and expression, freedom to assemble peacefully without

arms, freedom to form associations or unions, freedom to move freely throughout the territory ofIndia, freedom to reside and settle in any part of the territory of India and the freedom to practice

any profession or to carry on any occupation, trade or business.

!estrictions can be imposed on all these rights in the interest of public order, security of 8tate,

decency or morality. %he constitution also guarantees the right to life and personal liberty andsays that the right can be limited or denied in a way prescribed by the law.

:rotection with respect to conviction for offences, protection of life and personal liberty and therights of a person arrested under ordinary circumstances is laid down in the right to life and

personal liberty. 6owever, the right to life and personal liberty cannot be suspended under anycircumstance even under the 4ational 'mergency imposed according to Art.


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!ight to freedom of religion, covered in Articles (3, (+, (2 and (*, provides religious freedom to

all people in India. %he obective of this right is to sustain the principle of secularism in India.

According to the Constitution, all religions are e"ual before the state and no religion shall begiven preference over the other. Citizens are free to preach, practice and propagate any religion

of their choice. 6owever, certain practices li?e wearing and carrying of >irpans in the profession

of the 8i?h religion can be restricted in the interest of public order, morality and health.!eligious communities can set up charitable institutions of their own, subect to certain

restrictions in the interest of public order, morality and health. 4o person is compelled to pay

taxes for the promotion of a religion. A 8tate run institution cannot impart religious instruction.

Cultural and *du!ational Rights

%hey are given in Articles (1 and


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Art. )


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!ight to constitutional remedies Art.


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Ques. 1< : "ositive dis!riination rather than negative dis!riination is !ru!ial to the

progress of #ndian so!iet0/. *+aine the stateent (ith e+aples?

Ans. Art. )/ establishes e"uality before law but historical facts of ine"uality mandate that specialtreatment for the disadvantaged groups be given. Constitution recognizes that affirmative action

is necessary for genuine social development. %herefore, in Art. )3, there are provisions insupport of marginalized sections of Indian society. Dne of the main goals of Art. )3 is to reform

the traditional social order which is beset with discrimination against certain sections.

:referential treatment in favour of 8C8% and D;Cs regarding educational and other facilities is

a social reform that is based on Art. )3. At the same time, the 8upreme Court sought to balance

the "uota#based preferential action with general social good by limiting the "uantitative extent ofreservation permissible. For example, 3J is the limit laid down by the court for all reservations

combined. Also, in the case of the 8';Cs, creamy layer is excluded. Further, the 8upreme Court

sought updated data about the 8';Cs in India to see if the "uota set aside is in conformity with

that or not.

Regarding (oen and their so!ial progress on the )asis of 4rt. 1,= the follo(ing needs to

)e noted:

According to 8upreme Court$ reservation of posts exclusively for women is valid under Art. )3


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*+planation

-escent and !esidence are the two additional criteria found in Art. )+(0 as compared to Art. )3

)0 -escent can be exemplified by the following.

In &- !ama !ao Gs 8tate of Andhra :radesh, the 8upreme Court struc? down an order of the&overnment where the Collector was directed to appoint persons from among the last holders of

this office as it amounted to discrimination on the basis of descent.

4rt. 1 $@

!esidence can not be the basis for reservation. 6owever, Art. )+


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Article )+/0 does not permit provision for reservations in the matter of promotion.

hile the rule of reservation cannot be called anti9meritarian, there are certain services and

posts to which it may not be advisable to apply the rule of reservation. %he reservation of )J ofthe posts in favour of economically bac?ward sections among the forward castes is not

constitutionally invalid and is# accordingly struc? down.

4ffirative 4!tion and 4rt.1, and 4rt.1

Affirmative action means policies, programs and procedures that give preference to vulnerablesections of society li?e minorities and women in employment, educational opportunities and so

on. Affirmative action is based on flexibility for the employer or the institution as regards the

concessions offered to the wea?er sections. !eservation on the other hand is based on a statutoryre"uirement for "uantitative targets. It is "uota based and gives no discretion to the employer.

%he instruments available for affirmative action or reservation are seats in educational

institutions$ various government obs$ employment opportunities in the corporate sector$ ban?loans. Affirmative action positive discrimination0 programmes are specifically written into theIndian Constitution. Clauses


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9$rd 4endent 4!t 2


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Ans. Constitution 1


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called compoundable offences. =ore serious offences are called non#compoundable as they can

not be withdrawn0.

4rt.18. 4)olition of %itles

4o title, not being a military or academic distinction, shall be conferred by the 8tate. 4o citizenof India shall accept any title from any foreign 8tate. 4o person who is not a citizen of India

shall, while he holds any office of profit or trust under the 8tate, accept without the consent of

the :resident any title from any foreign 8tate. 4o person holding any office of profit or trustunder the 8tate shall, without the consent of the :resident, accept any present, emolument, or

office of any ?ind from or under any foreign 8tate.

%he ;ritish government had created an aristocratic class ?nown as !ai ;ahadurs and >han;ahadurs in India. Constitution abolishes these titles for the reason that they create ine"uality

6owever, =ilitary and academic Institutions can conferred on the citizens of India.

%he 8upreme Court, in )113, upheld the validity of awards li?e ;harat !atna and :adma awards.%he apex court ruled that the awards of ;harat !atna and :adma Gibhushan could not be used bythe recipient as a title and did not, accordingly, come within the Constitutional prohibition.

4rt. 19: Right to Freedo

%he right to freedom in Article )1 guarantees the following six freedoms5 Freedom of speech and

expression, which enable a citizen to participate in public activities# freedom of expressionincludes freedom of press !easonable restrictions can be imposed in the interest of public order,

security of 8tate, decency, morality etc.

Freedom to assemble peacefully without arms, on which the state can impose reasonable

restrictions in the interest of public order and sovereignty and integrity of India. Freedom to formassociations or unions on which the state can impose reasonable restrictions on this freedom in

the interest of public order, morality and the sovereignty and integrity of India. Freedom to move

freely throughout the territory of India though reasonable restrictions can be imposed on thisright in the interest of the general public, for example, restrictions may be imposed on movement

and travelling, so as to control epidemics.

Freedom to reside and settle in any part of the territory of India which is subect to reasonable

restrictions by the 8tate in the interest of the general a public or for the protection of the

scheduled tribes from exploitation and coercion.

Freedom to practise any profession or to carry on any occupation, trade or business on which the

state may impose reasonable restrictions in the interest of the general public. %hus, there is no

right to carry on a business which is dangerous or immoral. Also, professional or technical"ualifi#cations may be prescribed for practicing any profession or carrying of any trade. 8tate can

impose reasonable restrictions on the exercise of the above rights on grounds of


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8overeignty and integrity of India

security of 8tate

public order

friendly relations with foreign 8tates

decency or morality

contempt of court

defamation or

incitement to an offence.

%he courts have the power to review the reasonableness of the restrictions and stri?e

them down if they are not ustified.

Ques. 1& : -andhs and Aartals as a !orollar0 of the freedo of spee!h= traples upon the

rights of the !iti;ens prote!ted )0 the !onstitution. Dis!uss in light of various 5upree

Court udgeents?

Ans. Freedom of speech does not include calling for forced bandhs. %he >erala 6igh Court had

in )112 and again delivered udgements curbing the right of trade unions and political parties to

call for forced bandh. %he 8upreme Court in )112 ;andh and 6artal mean essentially the same.6artal was originally a &uarati expression meaning the closing down of shops to press a

demand0 upheld the >erala 6igh Courts order ma?ing bandhs illegal.B ;andhs and hartals cost

the 8tate and private citizens by way of loss to investments and destruction to property. %he;ombay 6igh Court (/0 imposed a line on two political parties for organising a bandh in

=umbai in (


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organizational functioning and the freedom of speech. 8uch restrictions, however, do not apply to

an elected representative in an organization as he represents people.

Freedo of Eoveent and Residen!e

4rt.19 ld@ and 1e@

%he former deals with the right of the citizens to move freely throughout the country and the

latter grants the right to residence. %he basis for the grant of the rights is that India is one

territory. ;oth are related and in fact follow from one another. %hey are not available to theforeigners li?e other freedoms in Art.)1. %he restrictions that apply to other rights in Art.)1)0

apply to them also. %he following are the reasonable restrictions that additionally apply to them.

to maintain public order5 if authorities suspect the movement of persons is li?ely to disturbpublic order in a region, the right can be denied. 6owever, the restrictions can not be oppressive

or excessive. for safety reasons, helmets can be prescribed for the two wheeler riders externment

orders against citizen to leave the territory of a state if the is an anti#social element. For example,a person can be externed from a state if he is intimidating witnesses in a case protection of the

interests of 8cheduled %ribes.

4rt.191g@

It gives citizens the right to practice any profession, or to carry on any occupation, trade orbusiness. 6owever, there can be restrictions imposed on following grounds

"ualifications can be prescribed for the same

8tate can monopolise business in any sector to the exclusion of any one# partial or

complete. It may be a part of the planned economy

!estrictions on trading in li"uor or any intoxicating substances in public interest

prohibition0

;etting and gambling are not a part of @trade and so can be restricted or banned

For food security, traders can be as?ed to sell a commodity at a concessional price levy

sugar0

!estriction on slaughter of animals.

4rt. 2


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given under the law in force at the time of the commission of the offence. If a law is made in

violation of the principle mentioned above, it is invalid. %hus, retrospective criminal legislation

is illegal. 4o person shall be prosecuted and punished for the same offence more than once. %hatis, double eopardy for the offence committed only once is unconstitutional. 4o

person accused of any offence shall be compelled to be a witness against himself.

*+ fa!to a(s Retrospe!tive la(s@

An ex post facto law from the Eatin for from something done afterwardB0 or retroactive law Isa law that retrospectively changes the legal conse"uences of acts committed prior to the

enactment of the law In reference to criminal law, it means the following5#

criminalize actions that were legal when committed or aggravate a crime by bringing it into a

more severe category than it was at the time it was committed or change or increase thepunishment prescribed for a crime or alter the rules of evidence in order to ma?e conviction for a

crime more li?ely than it would have been at the time of the action for which a defendant isprosecuted.

An ex post facto law may also decriminalize certain acts or alleviate possible punishments .Forexample by reducing punishment from rigorous imprisonment to simple imprison#ment. If the

retroactive law eases the punishment for a crime, it is valid.

Ques. 1, : %he issue of paid ne(s in violation of the Right to freedo under 4rt. 19 of the

!onstitution *+aine?

Ans. %here is no separate provision guaranteeing the freedom of the press, but the 8upreme

Court has held that freedom of the press is included in the @freedom of expression under Article)1)0 a0 of the Indian Constitution.

!easonable restrictions as mentioned above apply to freedom of press too.

%he printer, publisher or editor of. a newspaper who is aggrieved by an infringement of this rightby a law or order may apply for relief to the 8upreme Court tinder Art.


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Art.)1(0 says that in the interests of public order, security of state, morality etc, reasonable

restrictions may be imposed on the six freedoms mentioned in Art. )1)0. 6owever,

@reasonableness should be "ualified with the following

the authority that imposes restrictions is responsible for showing that they are reasonable and

restrictions, to he reasonable, should satisfy the test of @proportionality9 that is the restrictionshould not be excessive. %he 8upreme Court has held that a reasonable restriction is one which is

not in excess of the re"uirements of the case. %his test involves a drawing of balance between theinterest of the citizen and the demands of national security and public order.

Ques. 1 : '#ndian udi!iar0 has )een interpreting 4rti!le 21 in its (idest sense to keep a

!he!k on the e+e!utive fro )eing ar)itrar0./ #n this light )ring out the various udgeent

of 5upree Court related to 4rti!le 21.

Ans. 4o person shall be deprived of his life or personal Eiberty except according to procedure

established by law. *+th Amendment Act introduced Art.()A introduced right to education which

says5

(IA. the 8tate shall provide free and compulsory education to all children of the age of six tofourteen year in such manner as the 8tate may, by law, determineB. 6owever, it is only an

enabling law and is to be made operational by the &overnment with relevant legislation5 Art. (I

saw many developments since the Constitution commenced. 8upreme Court in the =ane?a&andhi case )12*0 applied the American principle of due process of law to the restrictions on

Art. () on the basis of the following arguments5 Art. )1 and () can not be understood as water

tight compartments and the same criteria of reasonableness must be applied for Art. () too.=erely following the procedure established by law is not enough. %he courts have the right to

review and "uestion the reasonableness of law itself !estrictions must be reasonable, ust and

fair and should not be arbitrary. %hus, =ane?a &andhi case udgement overturned the apex courtverdict in the case )130 when the 8upreme Court ruled that it was enough if the procedure wasfollowed and that courts could not in"uire into the reasonableness of the procedure. In India

traditionally, procedure established by law was followed as it prevailed in ;ritain. ;ut since the

apex court udgement in )12*, presently we follow both. Dver the years, 8C expanded the scopeof Art.()

by including many rights in it li?e the following5 !ight to elementary education =ohini ain vs

the 8tate of >arnata?a case )11( and the 7nni?rishnan case )11


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of this provision shall be an offence punishable in accordance with law. 4othing in this article

shall prevent the 8tate from imposing compulsory service for public purpose, and in imposing

such service the 8tate shall not ma?e any discrimination on grounds only of religion, race, casteor class or any of them. ;egar is described as labour or service which a person is forced to give

without receiving any remuneration for it. It is also ?nown as @debt bondage. Eegislations made

to chec? human traffic?ing is the following

Immoral %raffic :revention Act I%:A0 )13+

;onded Eabour 8ystem Abolition0 Act )12+ and

uvenile ustice Care and :rotection0 Act, (

Art.(/. :rohibition of employment of children in factories, etc.5 4o child below the age of

fourteen years shall be employed to wor? in any factory or mine or engaged in any other

hazardous employment. Child Eabour :rohibition and !egulation0 Act, )1*+ is the legislation to

chec? child labour. Dn the recommendation of the %echnical Advisory Committee on ChildEabour headed by the -irector &eneral, Indian Council of =edical !esearch, the &overnment

ordered ban on employment of children as domestic help or servants at the roadside ?ios?s in

(+. %he ban was imposed by the Eabour =inistry under the Child Eabour :rohibition and!egulation0 Act, )1*+.

Right to Freedo of Religion

Art.(3. 8ubect to public order, morality and health, all persons are e"ually entitled to freedom of

conscience and the right freely to profess, practise and propagate religion. &overnment can ma?elaws for regulating or restricting any economic, financial, political or other secular activity which

may be associated with religious practice$ providing for social welfare and reform or the

throwing open of 6indu religious institutions of a public character to all classes and sections of6indus.

%he wearing and carrying of ?irpans shall be deemed to he included in the profession of the

8i?h religion. 6indus include persons professing the 8i?h, aina or ;uddhist religion0. In the

agadiswaranand vs the :olice Commissioner )1*/ case, tile 8upreme Court held that the Anand=argi practice of dancing with s?ulls is not essential to their religion and could be reasonably

restricted. Cow slaughter similarly is not considered inherent to Islam on ;a?rid day. %hus, 8tate

can regulate what constitutes the essential religious practice and what does not and outlaw thelatter if it is not social.

4rt.2. Freedo to anage religious affairs

8ubect to public order, morality and health, every religious denomination or any section thereof

shall have the right9 to establish and maintain institutions for religious and charitable purposes$to manage its own affairs in matters of religion$ to own and ac"uire movable and immovable

property$ and to administer such property in accordance with law.


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4rti!le 27:4o person shall be compelled to pay any taxes for the promotion or maintenance of

any particular religion.

4rti!le 28:

4o religion instruction shall be provided in any educational institution wholly maintained out of8tate funds. 4othing in clause )0 shall apply to an educational institution which is administered

by the 8tate but has been established under any endowment or trust which re"uires that religious

instruction shall be imparted in such institution. 4o person attending any educational institutionrecognised by the 8tate or receiving aid out of 8tate funds shall be re"uired to ta?e part in any

religious instruction unless such person or, if such person is a minor, his guardian, has given his

consent thereto.

Cultural and *du!ational Rights

4rti!le 29: "rote!tion/ of interests of inorities

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.

4o citizen shall be denied admission into any educational institution maintained by the 8tate or

receiving aid out of 8tate funds on grounds only of religion, race, caste, language or any of them.

Article


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Act, )1*. :revention of %errorism Act :D%A0 (( was repealed in (3. Eaws with similar

provisions are also enacted by the 8tate governments.

%4D4

%errorist And -isruptive Activities :revention0 Act %A-A0 was passed in )1*3. It expired in)113. %he constitutional validity of %A-A was challenged before the 8upreme Court in )11/,

but the 8upreme Court upheld its validity. %A-A provides for the constitution of designated

courts for speedy and expeditious trial of offences. 6owever, under %A-A, the conviction ratewas less than )J as witnesses were not protected nor was the evidence in the form of

intercepted communications accepted as valid. %o overcome these limitations, :D%A was made

in ((.

"G%4

:D%A is the :revention of %errorism Act, ((. It was passed by the :arliament in (( in aoint sitting of the budget session5 of the :arliament as !aya 8abha did not passed it to be

introduced. :D%A was drafted on lines recommended by the Eaw Commission and was animprovement over the %errorist and -isruptive Activities :revention0 Act %A-A0. %he

safeguards that the 8upreme Court prescribed were incorporated to ensure that the potential for

abuse is minimised. 6owever, since critics maintained that :D%A was draconian and wasmisapplied and open to abuse, it was repealed in (3.

Ques. 19 : Criti!all0 e+aine the signifi!an!e of 8th

4endent 4!t= 2


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education, which the 8tate shall provide such manner as the 8tate may, by law, determine 'arly

childhood care and education for children in the age group of #+ years0 is provided for as a

directive principle of 8tate :olicy under Article /3 of the Constitution. Article 3)>0# who is aparent#or guardian, to provide opportunities for education to his child or, as the case may be,

ward between the age of six and fourteen years. 4C!C recommended that the inferred rights

be given explicit status.

4rti!le 22:H "rote!tion against arrest and detention in

!ertain !ases

4o person who is arrested shall be detained in custody without being informed, as soon as maybe, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended

by, a legal practitioner of his choice.

'very person who is arrested and detained in custody shall be produced before the nearest

magistrate within a period of twenty#four hours of such arrest excluding the time necessary forthe ourney from the place of arrest to the court of the magistrate and no such person shall be

detained in custody beyond the said period without the authority of a magistrate. 4othing in

clauses )0 and (0 to any person who0 is arrested or detained under any law providing for

preventive detention.

5afeguards against "reventive Detention

4o law providing for preventive detention shall authorise the detention of a person for a longer

period than three months unless an Advisory ;oard consisting of persons who are, or have been,or are "ualified to be appointed as, udges of a 6igh Court has endorsed that there is, in its

opinion, sufficient cause for such detention. Communicate to such person the grounds on whichthe order has been made. !easons for detention need not be disclosed if the authority considers it

to be against the public interest to disclose. &ive the detainee the earliest opportunity of ma?inga representation against the order. :arliament may relax the provisions of Art.(( relating to

preventive detention. %he following laws ma?e room for such relaxation5 4ational 8ecurity Act,

Conservation of Foreign 'xchange and :revention of 8muggling Act CDF':D8A0 .and:revention of %errorism Act :D%A0 have a provision to detain beyond < months.

Ques. 2< : -ring out the arti!les other than arti!les under "art ### of the !onstitution

related to inguisti! Einorities safeguard?

Ans. ;roadly, a linguistic minority is one that spea?s a language other than the language spo?enby the maority in the 8tate. :artly, linguistic minorities emerged after the states were reorganised

on linguistic basis in )13+. For the protection of the linguistic minorities, the following directives

are provided. 'very 8tate and other local authority within a 8tate is directed to provide ade"uate

facilities for instruction in the mother tongue at the primary stage of education to childrenbelonging to linguistic minority groups and the :resident is authorised to issue such directions to

any 8tate as he may consider necessary for the securing of such facilities. Art.


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the safeguards provided by the Constitution for linguistic minorities and to report to the :resident

upon those matters. It shall be the duty of the :resident to cause all such reports to be laid before

each 6ouse of :arliament and also to be sent to the &overnment of the 8tate concerned. Art.


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purely on the basis of merit. 7nni?rishnan vs 8tate of Andhra :radesh case In the 7nni?rishnan

vs 8tate of Andhra :radesh case )11ashmir, :unab, 4agaland, =izoram, and =eghalaya0.

Ques. 2$ : 'Right to !onvert into another religion is )ound to result in !haos anddesta)lisation./ Dis!uss (ith e+aple fro #ndia?

Ans. India is a secular country with Art. (3#(* containing the essence of secularism and

:reamble to the Constitution proclaiming the same categorically. %he people of the country are

given the freedom of conscience and the right to freely profess, practise and propagate religionsubect to the public order, morality, health and so on Art. (3)0.


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%here has been a debate about whether Art. (3)0 can be understood as granting to the people the

right to convert another person to ones own religion. ;ut the Constitution bench of the 8C, in

!ev. 8tainislau vs 8tate of =: case )122 ruled that Art. (3)0 doest not give the right to convertbut only the right to spread the tenets of ones own religion. %he substance of the udgement is

Art. (3)0 gives the freedom of conscience to all religions and not to one particular region

!ight to convert another person is a violation of his own freedom conscience.

hat is freedom for one is freedom for the other in e"ual measure. 8tate can intervene in thedefence of the public order etc., even if conversions are construed as legal.

If the conversions are permitted they will be indulged in by every religion and the result is bound

to be chaos and destabilization. %he 8C delivered the verdict about the legislation made in =:

and Drissa to outlaw conversions based on force, fraud and allurement thus exploiting thevulnerability in the social situation.

%hus, only voluntary conversions are valid in India.

5oe states in #ndia have passed anti6!onversion la(s.

Art.


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Right to "ropert0: egislative and udi!ial histor0

Griginall0 the Constitution !ontained the follo(ing:

Art. )1)0 )0 All citizens shall have the right to ac"uire, hold and dispose of property....,

Art )130 nothing in the above clauses shall prevent the state from ma?ing army laws in

the interests of the general public.

Art


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conceived as a novel and innovative way of ensuring that parliamentary legislation of a

progressive ?ind is not caught in litigation and delay.

6owever, it is seen that laws which are not in any manner connected with land reforms oragrarian reforms have been included in the 4inth 8chedule in order to avoid udicial scrutiny of

their constitutionality on the ground of violation of Fundamental !ights. For example

%he Industries -evelopment and !egulation0 Act, )13)

%he =onopolies and !estrictive %rade :ractices Act, )1+1 and

%he Foreign 'xchange !egulation Act, )12< %his is contrary to the purpose and obect of

article


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%he 8upreme Court, in the I.!. Coelho udgment in (+ ruled that laws placed under 4inth

8chedule after April (/, )12< the date of >eshavananda ;harati case when the concept of @basic

features was introduced by the apex court0 shall be open to challenge in court for violation of thebasic structure. Also, 1th 8chedule items can be challenged for violating fundamental rights

guaranteed tinder Articles )/, )1 and () of the Constitution. Articles )/, )1 and () of the

Constitution constitute the @golden triangle and can be diluted only if sufficient public interest isserved. %he "uestion in Coelho case essentially related to the competence of :arliament to put

any law under the 4inth 8chedule and, thus, beyond udicial scrutiny. A law that abrogates or

abridges rights guaranteed by :art III of the Constitution may violate the basic structure doctrine

or it may not. If former is the conse"uence of law whether by amendment of any Article of :artIII or by an insertion in the 4inth 8chedule, such law will have to be invalidated in exercise of

udicial review power of the Court,B the bench held.

%he ruling thus tests an item in the 4inth 8chedule on two grounds basic structure doctrine

fundamental rights

A three#udge bench will be set up to determine the validity or otherwise of any of the contested

items in the 4inth 8chedule.

Ques. 2, : 4rti!le $2 has )een aptl0 des!ri)ed as the 5oul of the Constitution>. Dis!uss?

Ans. Article


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6abeas Corpus5 %he writ of 6abeas Corpus is a remedy available to a person who is confined

without legal ustification. %he words habeas corpus literally means to have the bodyB. %he

court issues the writ which has to be obeyed by the obtaining authority by producing the personbefore the court.

A 6abeas Corpus is a legal writ that protects an individual against arbitrary imprisonment byre"uiring that any person arrested be brought before a court for formal charge. If the charge is

considered valid, the person must submit to trial$ if not, the person is left free. hen the law issuspended, for example, when national emergency is proclaimed, then individuals can be

imprisoned indefinitely and without charge. 7nder Articles


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vested with udicial functions. Certiorari5 In Eatin, it means to be informed of or to be

ascertainedB It refers to the order a court issues to a tower court or semi#udicial body to transfer

the case another court of semi#udicial body. %he reason is that the original body does not havethe urisdiction or there are irregularities involved. %he higher court can "uash a portion or total

of the proceedings that have already ta?en place. Certiorari is issued after the proceedings have

commenced.

'ssentially, it is a writ issued by a superior court and is directed to one of inferior urisdiction,commanding the latter to certify and return to the former the record in the particular case. It is a

writ with the same scope as prohibition. It is issued after proceedings begin so as to "uash the

proceedings and transfer the case to a competent court. If the udgement has already been given,certiorari writ is issued to "uash it.

%he following are the circumstances under which prohibition and certiorari are issued5#

hen the udicial body does not have urisdiction

'xercises excessive urisdiction

4atural ustice is violated

Acts on the basis of a law that is itself struc? down Luo arranto5 It means by what authorityM

%he writ of "uo warranto enables en"uiry into the legality of the claim which a person asserts, toa public office and to oust him from such position if he is holding it illegally and without valid

credentials. %he holder of the office has to show to the court under what authority he holds the

office. It is issued when the office is of public and of a substantive nature created by statute or bythe Constitution itself, and the respondent has asserted his claim to the of office. It can he issued

even though he has not assumed the charge of the office. %he fundamental basis of theproceeding of "uo warranto is that the public has an interest to see that a lawful claimantoccupies a public office. It is not available against a ministerial office.

Article


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elfare provisions of :art III of the Constitution are included in Art )3, Art. )+, Art. )2, Art.(


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Article


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!ight to information is only a statutory right and not a F!.

'mployment of child labour in hazardous obs has been reduced, but their employment even in

non#hazardous obs, including their prevalent employment as domestic help restricts theirdevelopment and through them, of the society at large. =ore then )+.3 million children are

employed and wor?ing in India. =ost of the population of India is unable to fully enoy theserights, because of the various adversities in the political sphere, mainly inaccessible bureaucracy.

5e. Polity - Fundamental Rights

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Transcript of 5e. Polity - Fundamental Rights