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Before do we understand the concept of fundamental rights, it becomes important for us to first answer what is a right?
A right simply defined, is an entitlement or claim to do or be treated in a particular manner.
rights can be either legal or moral. While legal rights are those which are laid down in a system of law, whereas, moral rights simply exist as moral claims or philosophical assertions.
The rights can further be classified into so called negative and positive rights. The negative rights act as constraints generally against the state and thus demand non interference on the part of the government or state.
Positive rights on the other hand exist as imposing obligation on the state to provide means or resources for the exercise and enjoyment of these rights.
In other words, such rights are mainly the rights of participation and non discrimination. In this sense, positive rights can be compared with the traditional civil and political rights whereas, negative rights can be identified with the traditional classical liberties say in the form of freedom of speech and expression, freedom of association or Assembly or freedom of religion or conscience etc…
Having said that, fundamental rights are essentially these moral rights because they belong to a person by virtue of his being human…
The development of constitutionally guaranteed fundamental human rights in India was inspired by historical examples such as England's Bill of Rights (1689), the United States Bill of Rights (approved on September 17 1787, final ratification on December 15, 1791) and France's Declaration of the Rights of Man (created during the revolution of 1789, and ratified on August 26, 1789) Under the educational system of British Raj, students were exposed to ideas of democracy, human rights and European political history. The Indian student community in England was further inspired by the workings of parliamentary democracy and British political parties.
In 1919, the Rowlatt Acts gave extensive powers to the British government and police, and allowed indefinite arrest and detention of individuals, warrant-less searches and seizures, restrictions on public gatherings, and intensive censorship of media and publications. The public opposition to this act eventually led to mass campaigns of non-violent civil disobedience throughout the country demanding guaranteed civil freedoms, and limitations on government power. Indians, who were seeking independence and their own government, were particularly influenced by the independence of Ireland and the development of the Irish constitution. Also, the directive principles of state policy in Irish constitution were looked upon by the people of India as an inspiration for the independent India's government to comprehensively tackle complex social and economic challenges across a vast, diverse nation and population.
In 1928, the Nehru Commission composing of representatives of Indian political parties proposed constitutional reforms for India that apart from calling for dominion status for India and elections under universal suffrage, would guarantee rights deemed fundamental, representation for religious and ethnic minorities, and limit the powers of the government. In 1931, the Indian National Congress (the largest Indian political party of the time) adopted resolutions committing itself to the defense of fundamental civil rights, as well as socio-economic rights such as the minimum wage and the abolition of untouchability and serfdom.[3] Committing themselves to socialism in 1936, the Congress leaders took examples from the constitution of the erstwhile USSR, which inspired the fundamental duties of citizens as a means of collective patriotic responsibility for national interests and challenges.
When India obtained independence on 15 August, 1947, the task of developing a constitution for the nation was undertaken by the Constituent Assembly of India. A notable development during that period having significant effect on the Indian constitution took place on 10 December, 1948 when the United NationsGeneral Assembly adopted the Universal Declaration of Human Rights and called upon all member states to adopt these rights in their respective constitutions.
Part III of the Constitution, containing the Fundamental Rights is described as the cornerstone of the Indian Constitution. Together with the Directive Principles of State Policy, the Fundamental Rights are said to constitute the conscience of the Constitution. These basic rights of individuals are regarded as fundamental because they are most essential for the attainment by the individual of his full intellectual, moral and spiritual stature.
The addition of Fundamental Rights in the Constitution aims at preventing the executive and the legislature from becoming totalitarian. These rights act as limitations on the State. It must be stressed, however that Fundamental rights guaranteed to individuals under the Constitution are not absolute rights. There cannot be any such thing as absolute and uncontrolled liberty wholly freed from restraint, for that would lead to anarchy and disorder. The fundamental rights guaranteed to individuals are not to override national security and general welfare of the society. They are subject to restrictions. In the Constitution of India, usually every right is accompanied by elaborate restrictions and the Constitution further authorizes the Parliament to impose restrictions, provided such restrictions are reasonable and not arbitrary. It is for the Supreme Court and the High Court to decide whether the restrictions imposed are reasonable or not. Some of the grounds on which reasonable restrictions can be imposed are:
1. Advancement of any socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes.
2. In the interest of general public, public order, decency or morality,
3. Sovereignty and integrity of India;
4. Security of the state;
5. Friendly relations with ForeignStates, etc.
As the name indicates, the human rights are the rights which are available to an individual because he is a human being. Since these rights become available to a person right from his birth therefore these stand in alienated under every circumstance.
These are thus universal rights in the sense that they are available to every one irrespective of ones caste, color, sex, ethnicity or nationality.
These are fundamental in nature in the sense that they cannot be taken away because of being basic in nature. Although they may be denied by a state, but their claim of human beings cannot be extinguished.
Finally, these are absolute in nature because they are upheld under all circumstances.
Although, both the Fundamental Rights and other Legal Rights conferred by the Constitution justifiable, there is a fundamental difference between the enforceability of the two. While the violation of a fundamental right of an individual entitles him to approach the Supreme Court directly for getting his grievances redressed, in cases of violation of other legal rights, the aggrieved person may have his relief by filing an ordinary suit in the sub-ordinate courts or by a writ application to the High Court, which are subject to appeals.
Human rights are those rights which are regarded as essential for individual to lead a dignified human existence in the society. It is the human rights which make a man a human being. Man is a biological entity while human is sociological entity. Human are unversed in nature. They override all barriers including race, religion, caste, place of birth etc. But human rights may be legal or moral. All fundament rights are human rights. They are essential for a human being to attain its fullest physical, mental and spiritual stages.
The Fundamental Rights afford protection against State action and not against action of private individual, except right relating to abolition of untouchability and right against exploitation. In these two incidences, fundamental rights are available both against the State and individuals.
In this Part, unless the context otherwise requires, the 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.
The word "State" has different meanings depending upon the context in which it is used. The expression "The State" when used in Parts III & IV of the Constitution is not confined to only the federating States or the Union of India or even to both. By the express terms of Article 12, the expression "the State" includes :
(i) the Government of India;
(ii) Parliament of India;
(iii) the Government of each of the States which constitute the Union of India;
(iv) the Legislature of each of the States which constitute the Union of India;
(v) all local authorities within the territory of India;
(vi) all local authorities under the control of the Government of India;
(vii) all other authorities within the territory of India; and
(viii) all other authorities under the control of the Government of India.
(ix) State Instrumentalities: Authorities constituted under and corporations established by statutes have been held to be instrumentalities and agencies of the Government in a long catena of decisions of the Supreme Court.
(x) According to Supreme Court, even private body or an agency working as an instrument of the State falls within the meaning of the ‘State’ under Article 12
(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (Doctrine of Eclipse)
(2) The State shall not make any law, which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (Doctrine ofseverability)
(3) In this article, unless the context otherwise requires,-
(a) “Law¨ includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b) “laws in force¨ includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.
Judicial review is the power of courts (Supreme Court and the High Courts) to declare a law unconstitutional and void if it is inconsistent with any of the provisions of the Constitution to the extent of its inconsistency. So far as the contravention of the Fundamental Rights is concerned, this power is specially enjoined upon the courts by the Constitution, in Art 13. The power of judicial review is available to the courts not only against the legislature but against the executive as well.
Art. 13 clause 2 states that the State shall not make any “law” which takes away or abridges, the rights conferred by Part III of the Constitution and any law made in contravention to Art. 13(2) shall, to the extent of contravention, be void. The question is, whether the word “law” as used in Art. 13(2) include Constitutional Amendment Act or not? If an Amendment Act is not covered under “law”, then the Parliament can amend any or all the fundamental rights; otherwise the fundamental rights are unamendable.
The Supreme Court starting from Shankari Prasad V. Union of India (1952) to Sajjan Singh V. State of Rajasthan (1965), held in a number of cases that the word “law” as found in Art.13 (2) should be taken to mean `rules or regulations made in exercise of ordinary legislative power’ and not to `Amendments to the Constitution made in exercise of constituent power’ of the Parliament. The Supreme Court, therefore, was of the view that the Parliament by exercising its amending power under Art.368 conferred on it by the Constitution can amend any part of the Constitution including Part III.
But in Golaknath V. State of Punjab (1967) the Supreme Court overruled its earlier decisions and held that the Fundamental Rights embodied in Part III, had been given a `transcendental position’ by the Constitution, including the Parliament exercising its amending power under Art.368 was not competent to amend the Fundamental Rights. The court was of the view that the word “law” in Art.13(2) included amendment to the Constitution as well. But by the 24th Amendment Act 1971, the Parliament amended Arts.13 and 368 to make it clear that the Parliament has the power to amend any part of the Constitution including Part III of the Constitution and the word “law” as used in Art.13 does not include a Constitutional Amendment Act.
Among other things, the 24th Amendment Act was challenged before the Supreme Court in the Kesavananda Bharati V. State of Kerala case in 1973. The Court in that case held that the Parliament has the power, under Art. 368, to amend any provision of the Constitution, including the fundamental rights enshrined in Part III of the Constitution. However, the Court held that the Parliament’s amending power is subject to the basic structure of the Constitution. The concept of basic structure of the Constitution is nowhere found in the Constitution. It is a judicial innovation and was given its shape by the Supreme Court in the Kesavananda Bharati V. State of Kerala case (1973). The Court held that if an amendment Act passed by the Parliament, destroys the basic structure of the Constitution, then to the extent of its destruction the Act would be void. However, the Court failed to define in precise terms what is the basic structure of the Constitution. It only defined it by way of examples. According to the Court, the following concepts are some of the basic structures of the Constitution. Supremacy of the Constitution, Republican and Democratic form of Government, Secular Character of the Constitution, Federalism, Separation of powers between the Legislature, the Executive and the Judiciary, the mandate to build a Welfare State, Sovereignty of the country, Parliamentary form of Government, Fair and Free Elections, Power of Judicial Review etc.
To sum up, the fundamental rights are also subject to the amending power of the Parliament, provided such an amendment does not destroy the basic structure of the Constitution.
14
Equality before Law.
15
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
16
Equality of opportunity in matters of public employment.
17
Abolition of Untouchability.
18
Abolition of Titles.
The Constitution itself classifies the Fundamental Rights under six groups. These are:
(1) Right to Equality (Arts.14-18)
(2) Right to Freedom (Art.19-22).
(3) Right against Exploitation (Art.23-24)
(4) Right toFreedom of Religion (Arts, 25-28)
(5) Cultural and Educational Right (Arts.29-30)
(6) Right to Constitutional Remedies (Arts.32-35)
Art.14 guarantees to all persons equality before the law or the equal protection of the laws within the territory of India. The first expression equality before the law means that no man is above the law of the land and every jurisdiction of the courts. The exceptions are:
(1) The president or the governor of a state shall not be answerable to any court for the exercise and performance of the powers and duties of his office.
(2) No criminal proceeding whatsoever shall be instituted or continued against the president or a governor in any court during his term of office.
(3) No civil proceeding in which relief claimed against the president or the governor of a state shall be instituted during his term of office in any court until the expiration of two months after a notice is served on him on the other hand the expression equal protection of the laws means that among equals the law, the law be equals and equally administered and like should be treated alike Art14 thus dies not require that the same rules of law should be applicable to all persons within the territory of India or that the same remedies should be made available to them irrespective of differences of circumstances, If only means that all persons similarly placed shall be treated alike both in privileges conferred and liabilities imposed. In only other words Art.14 ensures quality among equals, its aim is to protect persons similarly placed against discriminatory treatment. Art.14, therefore does not forbid classification (of people.) However in order to be valid classification must not be arbitrary but must be rational thus the Legislature may (i) exempt certain classes of property from taxation such as charities libraries, Act (ii) impose different specific taxes upon different trades and professions. (iii) Taxes income and property of individuals in different manner etc.
Exceptions to Right to Equality
The FRs under Article 14 ensures right to equality among all classes and prohibits class legislation but allowed ‘classification for purpose of legislation’ or in other words no prohibition on reasonable classification which is rational in nature such as:-
President/Governor enjoys immunity from all criminal/civil offences (not subjected to any law) either of official or personal in nature during term of office.
Different taxation classification for different persons as per there earnings.
Different laws for military personnel
Article 31-C is an exception to Article 14. Supreme Court has held that ‘where Art 31C comes in Art 14 goes out’. Art 31 C provides that for implementing the DPSP contained in clause (b) and (c) of Article 39 cannot be challenged on the ground that they are violative of Art. 14
The foreign sovereigns (rulers) ambassadors and diplomats enjoy immunity from criminal and civil proceedings
The UNO and its agencies enjoy the diplomatic immunity
Art.15 Directs that the state shall not discriminate against a citizen on grounds only of religion race, caste, sex or place of birth or any of them. The second clause prohibits citizens themselves as well as the state from taking such discrimination with regard to access to shops hotels etc. ... and all places of public entertainment public resort wells tanks roads etc. the first clause of Art 15, mentions the prohibited grounds in any matter which is within the control of the state. The first clause of Art15 mentions the prohibited grounds in any matter, which is within the control of the state. The second clause prohibits both the state and private individual who are in control of the public place mentioned in that clause; the third clause gives power to the state to specially protect women and children. The fourth clause has been added to Art19 in order to given special protection to backward classes or scheduled castes and scheduled Tribes.
The word only used in the Article indicates that the discrimination cannot be merely on the ground that one belongs to a particular caste, sex, etc. In other words if other qualifications are equal caste religion sex etc. should not be a ground for preference or disability. It follows from this that discrimination on ground other than religion race caste; sex or place of birth is not prohibited. It means that discrimination based on any of these grounds and also another grounds is not hit by Art.15 (1).
Indian Constitution contemplates affirmative action (not reverse discrimination) for the target groups mentioned in Articles 15(3) through (5), that is, women, children, Socially and Educationally Backward Classes (SEBCs or Other Backward Classes (OBCs)), SCs, and STs.
Indian law emphasizes formal equality as well as proportional equality, which upholds the State’s right to take affirmative action in favor of disadvantaged sections of society.72 The seeming derogations from the right to equality found in Articles 15(3) through (5) or 16(3) through (5) are not treated as an exception to the equality principle but instead as a facet of the principle of equality itself. Consequently, judicial scrutiny reaches beyond formal equality
and upholds executive and legislative attempts to achieve substantive equality or equality in fact.
Limits like the ceiling of 50 percent on total reservations are supposed to be premised on notions of reasonable limits
1. Similarly, post-graduate courses are treated differently and are normally excluded from the reservation schemes
2. The apex court also has invalidated personal laws conferring inferior status upon women both on the principle that it would be anathema to gender equality and also on the basis that such laws, derived from religious scriptures, must be consistent with the constitution or else rendered void.
3. The courts have also excluded the ‘creamy layer among the OBCs while implementing the law. The creamy layer limit has been increased to 6 lakh from 4.5 lakh. Department of Personnel and Training of Government of India has raised income limit from 4.5 lakh to Rs 6 lakh per anum for determining the Creamy Layer amongst OBC with effect from 16th May 2013
4. The creamy layer status of an individual is decided by his/ her parent’s income and not by his own income or the income/ status of spouse.
Art. 16 deals with equality of opportunity “in public employment “clauses (1) and (2) of Art.16 guarantee Equality of opportunity to all citizens in the matter of appointment to any office or of any other employment under the state. No citizen can be discriminated against or be ineligible for any employment of office under the state on grounds only of religion race caste sex descent place of birth or residence. In Art 16 clauses 3, 4 and 5 are the three exceptions this general rule of equality of opportunity.
Art. 16 guarantee is equality of opportunity in matter of appointment instate services. It did not prevent the state from prescribing the necessary qualification and selective tests for recruitment for government services.
The qualification prescribed may be mental excellence physical fitness sense of discipline moral integrity loyalty to the state etc. Where the appointment requires technical knowledge technical qualifications may be prescribed. Character and antecedents of candidates may be taken into consideration for appointment in government service.
Art. 16(3) is an exception to clause (2) of this Article, which forbids discrimination on the ground of residence. However there may be good reasons for reserving certain posts in a state for the residents only. This Article empowers parliament to regulate by law the extent to which or would be permissible for a state to depart from the above principle.
Art. 16 (4) is the second exception to the general rule embodied in Art, 16 (1) and (2) It empowers the state to make special provision for the reservation on of appointments or posts in favour of any backward class of citizens which in the opinion of the state are not adequately represented in the service under the state. Thus Art. 16 (4) applies only if two conditions are satisfied (1) the class of citizen is backward i.e. socially and educationally and (2) the said class is not adequately represented in the services of the state. The second test cannot be the sole criterion. Art.16 (5) is the third exception to the general rule laid down in Art, 16 (1) and (2) which forbids discrimination in public employment on the ground of religion. Art. 16(5) says that a law which provides that a person holding an office in connection with the affairs of a religious or denominational institution etc., shall be a person professing the same religion or belonging to a particular denomination shall not be treated to be repugnant to this Article.
Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or class of post in the services under the State in favor of the Scheduled Castes and the Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State.
Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year.
Abolishes “Untouchability” and forbids its practice in any form. The enforcement of any disability arising out of untouchability is to be an offense punishable in accordance with law. It does not stop with a mere declaration out announces that this forbidden “Untouchability” is not to be henceforth practiced in any form. If it is so practiced it shall be dealt with as an offense punishable in accordance with the law.
In exercise of the powers conferred by Art. 35, Parliament has enacted the Untouchability (Offense) Act, 1955. This Act prescribes punishment for the practice of untouchability. This Act has been amended by the Untouchability (Offenses) Amendment Act, 1976, in order to make the laws more stringent to remove untouchability from the society. Further the name of the Original Act has been changed to Civil Rights, (Protection) Act 1976.
It should be noted that Art. 15(2) also helps in the eradication of untouchability. Thus on the grounds of untouchability no person can be denied access to shops public restaurants, hotels and places of public entertainment or the use of wells, tanks, bathing ghats, road and places of public resort, maintained wholly or partly out of State funds or dedicated to the use of general public.
The Constitution, nowhere, defines what is untouchability, nor the Acts passed by the Parliament. But the judiciary has, however, held that it clearly means any social practice among the Hindus, which looks down upon a certain class of people on account of their birth and makes discrimination against them on this ground.
Art18 prohibits the State to confer titles on anybody whether a citizen or a non-citizen. Military and academic distinctions are, however, exempted.
Bharat Ratna, Padma Vibhushan, Padma Bhushan, Padma Shri and other State awards are not regarded as titles in terms of Art. 18(1) of the Constitution.
Clause (2) prohibits a citizen of India from accepting any title from a foreign State. Clause (3) provides that a foreigner holding any office of profit or trust under the State cannot accept any title from any foreign State without the consent of the President. This is to ensure loyalty to the Government he serves for the time being and to shut out all foreign influence in Government affairs, or administration. Clause (4) provides that no person holding any office of profit or trust under the State is to accept without the consent of the President any present, emoluments or office of any kind from or under any foreign State.
It is to be noted that there is no penalty prescribed for infringement of the above prohibition. Art. 18 is merely directory. It is, however, open to Parliament to make a law for dealing with such person who accepts a title in violation of the prohibition prescribed in Art. 18.
Right to six Democratic Freedoms (Art. 19). Art. 19 of the Constitution guarantees to the citizens of India the following six fundamental freedoms: -
(a) Freedom of Speech and Expression
(b) Freedom of Assembly
(c) Freedom to form Association
(d) Freedom of Movement
(e) Freedom of Residence and Settlement
(f) Omitted by 44th Amendment Act, 1978
(g) Freedom of Profession, Occupation, Trade or Business
The freedoms enumerated in Art. 19(1) are those great and basic rights which are recognized as the natural rights inherent in the status of a citizen. But none of these freedoms is absolute or uncontrolled and each is liable to be curtailed by laws made or to be made by the State putting reasonable restrictions in the interests of the general public security of the State, sovereignty and integrity of India, public order, decency, morality, friendly relations with foreign states, protection of interest of any scheduled tribes, etc. A law restricting the exercise of any of the six freedoms guaranteed by clause (1) of Art. 19 to be constitutionally valid must satisfy two conditions namely:
(i) The restriction must be for the particular purpose mentioned in the Constitution permitting the imposition of the Restriction on the particular right, and
(ii) The restriction must be a reasonable restriction.
19
Freedom of Speech.
20
Protection in respect of conviction for offences.
21
Protection of life and personal liberty.
22
Protection against improper arrest and detention.
Freedom of Speech and Expression is indispensable in a democracy. It means the right to express one’s own conviction and opinion freely by words of mouth, writing, printing, pictures or any other mode. It includes the expression of one’s ideas through any communicable medium or visible representation such as gestures, banners, signs and the like. It further includes the liberty to propagate not only one’s own views, but also right to propagate or publish the views of other people. The freedom of speech and expression thus includes the freedom of the press as well. The Constitution nowhere mentions in explicit term the freedom of the press. But, it is implicit in the freedom of speed and expression. The freedom of the press is considered essential to political liberty and proper functioning of democracy. There are no geographical limitation, as the Supreme Court has observed, to freedom of speech and expression guaranteed under Art. 19(1) and this freedom is exercisable not only in India but also outside India and if State action sets up barrier to its citizens on the exercise of this freedom in any country in the world, it would violate the freedom of speech and expression.
Freedom of speech does not include calling for forced bandhs. The Supreme Court in 1997 opined that Bandh and Hartal mean essentially the same, making bandhs illegal. The essence of the judicial position is this: people cannot be made to participate in bandhs under duress and that organisers of bandh trample upon the rights of the Citizens protected by the Constitution
There is no separate provision guaranteeing the freedom of the press, but the Supreme Court has held that freedom of the press is included in the freedom of expression under Article 19(1) (a) of the Indian Constitution.
Reasonable restrictions as mentioned above apply to freedom of press too.
The printer, publisher or editor of a newspaper who is aggrieved by an infringement of this right by a law or order may apply for relief to the Supreme Court tinder Art.32 or a High Court under Art 32 or 226 of the Constitution.
The National Commission to Review the Working of the Constitution (NCRWC) recommended that freedom of press be explicitly granted arid not left to be implied in the freedom of speech. Freedom of speech guaranteed to citizen is subordinate to the parliamentary privileges (Art.115 and 194) and in case of a clash between the two, the latter prevails.
In every liberal democracy, the citizens are guaranteed certain civil liberties which give them a realm of private and independent action where the state cannot intrude. The Indian constitution also guarantees such civil liberties to the Indian citizens under Article 19.
Among the several such liberties, the freedom of speech occupies a preeminent position among all other civil liberties which our constitution zealously guards against state action.
Undoubtedly, freedom of speech is the bulwark of democratic government as this freedom is very essential for the proper functioning of the democratic process. Indeed freedom of speech is regarded as the first condition of liberty and nevertheless is truly regarded as the mother of all other liberties.
Significantly, the contours of the freedom of speech under our constitution are very far reaching to include a right to express one’s own views and opinions on any issue and by employing any medium for this purpose such as words of mouth, writing, printing, picture, films or movies etc.
In essence, the freedom of speech and expression touches upon all forms of media through which a citizen wants to speak or express himself and films or movies is indeed one such medium.
Time and again, the films as a medium of speech and expression invoke controversy either on account of censorship or facing protests and agitation against its release as we witnessed in the recent past in connection with Padmavati which caught media and everyone’s attention in the country. Let’s address both the issues surrounding films one by one.
Insofar as the censorship of films is concerned, the position is very clear in this regard that as against other forms of media through which a person is speaking or expressing himself, films can justifiably be pre censored. This does not amount to an unreasonable restriction on ones say, a film maker’s right of speech and expression. The Supreme Court clarified this position long back in K.A Abbas case (1971) upholding censorship of films on the ground that the films or motion pictures considering their very nature as a product of visual art, is capable of stirring up human emotions more deeply than any other form of art. Being so, films do carry a unique capacity of disturbing and arousing feelings so as to be a potential for evil or mischief in the society. A film thus cannot be allowed to function in a free market place just as the newspapers or magazines do. Having said so, the films must have to be treated separately from other forms of art and expression. In the instant case of Padmavati, the censor board did not find anything objectionable in the movie and thus certified it for release other than affecting a minor change in the name of the movie to Padmavat.
Now erupts another issue of banning a film in spite of its being cleared by the censor board on the part of some states considering violent protests and agitation unleashed by a particular community who find the content as objectionable as we all witnessed in the context of Padmavati row.
The question is: can a state or government order a ban on the exhibition of a film in their state in view of either anticipated or ongoing protests considering its unobjectionable nature and clearance by the censor board?
In this regard also, the stance of the Court is very clear as it observed:
“What good is the protection of freedom of speech and expression if the state does not care to protect it? If the film is unobjectionable and cannot constitutionally be restricted on the grounds mentioned under the right itself, freedom of speech cannot be restricted and suppressed on account of any threat of demonstration or violence. It is the duty of the state to protect the freedom of expression since it is a liberty guaranteed against the state…”
Hence, to conclude, a threat of violence or actual violence does not empower the state to ban the exhibition of a particular film (as announced by some states in connection with Padmavati) or as may arise any time in the future provided the content of an alleged film fall within the parameters of restrictions laid down in Article 19 (2). If such a ban has been announced on the quicksand of political expediency or convenience, it will not carry the sanction of law, for then it would tantamount to negation of rule of law and surrender to blackmail and intimidation. Hence, the state cannot plead its inability to handle the hostile audience problem.
Indeed, freedom of speech and expression is legitimate and constitutionally protected right cannot be held to ransom by an intolerant group of people.
Guarantees to all citizens of India right to assemble peacefully and without arms. This right is, however, subject to the following restrictions:
(i) The assembly must be peaceable.
(ii) It must be unarmed.
(iii) Reasonable restrictions can be imposed.
The right of assembly is implied in the very idea of democratic Government. The right of assembly thus includes right to hold meetings and to take out processions. This right, like other individual rights, is not absolute but relative. The assembly must be non-violent and must not cause any breach of public peace. If the assembly is disorderly or riotous then it is not protected under Art. 19(1) (b) and reasonable restrictions may be imposed under clause (3) of Art. 19.
Art 19(2) 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. 19(1). However, reasonableness should be qualified with the following:
the authority that imposes restrictions is responsible for showing that they are reasonable and restrictions, to be reasonable, should satisfy the “test of proportionality” that is the restriction should not be excessive.
The Supreme Court has held that a reasonable restriction is one which is not in excess of the requirements of the case. This test involves a drawing of balance between the interest of the citizen and the demands of national security and public order.
Art. 19(1) (c) guarantees to all citizens’ freedom to form associations. Like other freedoms, this freedom is not absolute. Art. 19(4) permit the State to impose reasonable restrictions “in the interest of the sovereignty and integrity of India or public order or morality. The right guaranteed under Art. 19(1)(c) is not merely to form association but also to continue with the association as such. The freedom to form association implies also the freedom to form or not to form, to join or not to join an association or union. But it should be noted that freedom to form association does not confer a fundamental right to strike.
The Constitution empowers the Parliament, under Art. 33 to modify the rights conferred by Part III of the Constitution in their application to members of the Armed Forces or other forces engaged with the maintenance of public order. Exercising this power, the Parliament has banned the formation of trade unions to the members of the Armed Forces, Police etc. This ban, according to the Supreme Court can be made applicable even to civilians who are working in such establishments.
Art. 19(1) (d) guarantees to citizens the right to move freely throughout the territory of India. The right to move means the right of locomotion and the expression “freely”, connotes that the freedom to move is to move wherever one likes and however one likes, subject to reasonable restrictions imposed by the State on grounds of interests of the general public or for the protection of the interests of the Scheduled Tribes.
The right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India arise out of basic concept of unity and integrity of India. India is one integrated country and its citizens have the freedom to move throughout the territory of India and to reside and settle anywhere, in India. Broadly speaking these two rights are part of the same right. Freedom of movement is not merely freedom of locomotion but also freedom to change one’s residence. Freedom of residence is subject to reasonable restrictions in the interests of general public or for the protection of any Scheduled Tribe.
Art. 19(1) (g) of the Constitution guarantees that all citizens have the right to practice any profession or to carry on any occupation or trade or business. The freedom is not uncontrolled, for clause (6) of the Article authorities legislation, which (i) imposes reasonable restrictions on this right in the interests of the general public; (ii) prescribe professional or technical qualifications necessary for carrying on any profession, trade or business to the exclusion of private citizens, wholly or partially. The right to carry on a business would include the right to close down or relinquish or sell the business.
Art. 20 guarantees to individuals - citizens and non-citizens protection against conviction for Offenses prohibiting (i) retrospective criminal legislation (ii) double jeopardy or punishment for the same offense more than once, and (iii) compulsion to give self-incriminating evidence.
Art.21 states that no person shall be deprived of his life or personal liberty except according to procedure established by law. Art. 21 as interpreted by the Supreme Court in its earlier decisions, was intended to be a limitation upon the powers of the Executive but not the Legislature and only safeguarded the individual against arbitrary or illegal action on the part of the Executive. But in the Maneka Gandhi V. Union of India 1978, the Court by giving a liberal interpretation to Art.21 overruled its earlier decisions and held that art.21 safeguards the individual against arbitrary or illegal action not only on the part of the executive imposing restrictions on personal liberty of individuals should not be arbitrary, unfair or unreasonable. Such a law is subject to the judicial review of the Courts.
Stating that “delay is a ground for commuting death penalty to life sentence”, the Supreme Court, in a landmark verdict in January 2014, commuted the death penalty of 15 convicts. The court ruled that mental illness and solitary confinement can also be reasons for commuting death sentence.
“…Undue, inordinate and unreasonable delay in execution of death sentence does certainly attribute to torture which indeed is in violation of Article 21 and thereby entails as the ground for commutation of sentence,” said the three-Judge Bench of Chief Justice of India P Sathasivam, Justice Ranjan Gogoi and Justice Shiva Kirti Singh.
The Bench also held that the right to seek mercy under Articles 72 and 161 of the Constitution is a constitutional right “not at the discretion or whims of the executive”, and there cannot be any distinction based on whether a person on death row was convicted on charges of terror or otherwise while entertaining their petition.
With this verdict, the SC overruled its own ruling in Khalistani terrorist Devinderpal Singh Bhullar’s case in which it had held that delay in deciding a mercy plea cannot be ground for commuting death sentence.
Under Art 21A which has been introduced by Eighty Sixth Amendment, 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.
Upholding the validity of the Right to Education (RTE) Act, the Supreme Court has said it will not apply to aided or unaided minority schools and they are not bound to give 25 per cent seats reserved for the children of economically weaker section.
A five-judge Constitution Bench headed by Chief Justice R M Lodha said that minority institutions were outside the ambit of the RTE Act and also upheld the constitutional validity of the social welfare legislation enacted with Constitutional amendments which places an obligation on unaided private schools to reserve 25 per cent seats for such wards.
It also upheld Articles 15(5) and 21A, by virtue of which unaided private schools are also obligated to reserve 25 per cent seats for students from weaker sections.
Right to education.-
"21A. 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."
"(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.".
If Fundamental Rights are of any significance for the people of this democratic country, it cannot be felt more than having a fundamental right to life and personal liberty that is guaranteed to us by the Constitution. Similarly, if the contribution of the Supreme Court is to be appreciated from the view point of its role in evolving a new jurisprudence of Constitutional rights for the people of this country, then again this important fundamental right hogs the lime light. Now the question is: what is this right all about, what are its contours and dimensions and how have the Courts rendered a new meaning to this right through its highly creative interpretative process that the simple word ‘life’ tends to conjure up an image of a life that is not mundane, but more meaningful and dignified?
In order to explore the possible answers to these questions let’s at the outset, try to discover what is this right actually say about?
Article 21 of the Constitution lays down that: “No person shall be deprived of his life or personal liberty except according to the procedure established by law.”
Let it be clarified at the very beginning that the use of the word person in this article indicates that this right is available equally to foreigners as good as it is available to Indian citizens and just as the state is under an obligation to protect the life of every citizen in this country, so is it under an obligation to protect the life of those who are not Indians as long as they are in the country.
Be it noted that the Supreme Court deserves all accolades for adding a new meaning and dimensions to this right which is still in the process of being expanded further to subsume even more rights under it than it has under its ambit presently.
Infact, having lain dormant for nearly three decades, a new life and vigour or so called a kind of reincarnation of Art.21 happened at the instance of the Supreme Court in the famous landmark case of Maneka Gandhi in which the Court rendered a very expansive meaning to the word life so as to deduce a variety of substantive and procedural rights for the people of this country. Given thus, right to life enshrined in Art 21 since then has been interpreted to mean something more than mere survival or animal existence by including all those aspects of life which go to make a man’s life meaningful, dignified, complete and worth living. How this life can be made more meaningful, dignified and worth living is when the state is obliged especially in a welfare state like India to take necessary steps for ensuring to the individuals certain basic necessities of life such as better and effective public health services, constructing protective homes for orphans or constructing shelter homes for the indigents so much so that states duty to effect improvements in the physical environment also falls within the larger compass of right to life.
To be more clear, we can easily discern some of the following rights as interpreted by the Courts that can be inferred from this single most right called as right to life so that life could become meaningful and dignified for every person.
Nonetheless, before elaborating on these various offshoots of right to life, one thing is clear that right to life certainly does not merely confine to the protection of ones limb or faculty, but embraces much more than this that essentially makes ones right to live with human dignity and all that goes along with it such as the provision of basic necessities of life that include adequate nutrition, clothing and shelter over the head including the facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing up or mingling with fellow human beings etc…
It is then no surprise that a number of economic and social security rights laid down under directive principles have today come to be read under Article 21 thereby adding more teeth to these directives in terms of their enforceability. One could not thus disagree that in order to live a dignified life, the state should be obligated nay its enforceable duty to ensure a better protection to the health and strength of workers, men and women including protecting the tender age of the children against abuse and exploitation while providing them adequate opportunities and facilities so as to ensure their development in a healthy manner and in conditions of freedom and dignity. Why because, these constitute the minimum conditions which must exist in a society in order that its members could live with human dignity and without any reasonable doubt, any democratic government should be expected to fulfill all these conditions of life to its people if right to life has its real meaning. Having said that we can now easily derive some of the following rights from the wider content of right to life under Article 21:
Right to livelihood: It is certainly a concomitant of right to life as no person can live without the means of living, that is, the means of livelihood. If this right is not be treated as a right to life then the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of its abrogation and the person will die.
Right to medical care: This right also flows from right to life and as such a duty is cast upon the state to provide not only for sufficient medical and health centre facilities, but also to ensure that no patient whether he be an innocent or be a criminal liable to punishment under the laws of the society be deprived of any emergency or otherwise medical care so that his life be preserved. The Courts have emphasized that the government hospitals and the medical officers employed therein are duty bound to extend timely medical assistance to the needy for preserving human life, for failure to provide him this assistance violates his right to life. In the event of any laxity on the part of the government or its servants in the hospital in this regard, the state shall be liable to pay compensation to the person whose right is being infringed in consequence thereof. In this sense, right to health also emanates from right to life.
Right to shelter: This right has also been recognized as an inbuilt right to life under Art 21.But right to shelter should not be narrowly construed as something mere protection of ones life and limb. Indeed it is a home where one has opportunities to grow physically, mentally, intellectually as well as spiritually. This right thus includes an adequate living space, a descent and safe structure and other civic amenities. In short, right to shelter does not mean a mere right to a roof over ones head, but a right to all the infrastructure necessary to enable one to live and develop as a human being.
Right to privacy: As held by the courts in a number of cases that right to privacy is very much implicit in the right to life and personal liberty. A citizen thus has a right to not only safeguard the privacy of his or her own, but also of his or her family, marriage, procreation, motherhood, child bearing among other matters. It is on this count that an unauthorized telephone tapping because, an unauthorized telephone tapping amounts to a serious invasion of an individuals right to privacy unless, it is permitted under the procedure established by law and that too of a person suspected of some subversive activity impinging upon public safety.
Environmental and Ecological rights: The greatest contribution if any, been made to the society by the Supreme Court by expanding the horizons of right to life, has been the deduction of some of the most valuable environmental and ecological rights for the mankind. This has led the salutary development of a kind of environmental jurisprudence in the country at the behest of the Apex Court. On this front, the court has been able to establish a close relationship between ecology and right to life under Art 21 by pointing out that since the right to life connotes the concept of “quality of life” which can only be possible if has the necessary conditions for the enjoyment of this life under the conditions of a pollution free environment covering pollution free drinking water, pollution free air and a noise free ambience. Therefore, any disturbance by any means or sources of these basic environment elements namely, air, water or soil would not only be hazardous for life, but also disturbs the quality of life and hence amounts to a violation of right to life. Keeping this into consideration, the Court has introduced the concept of what it refers to as doctrine of public trust. This doctrine essentially rests on the premise that certain natural resources like Air, water, soil etc being a gift of the nature are meant for general use and thus cannot be restricted to private ownership. As such, the state as a trustee thereof is duty bound to protect them by resorting to sustainable development plan.
This is the reason that in the recent past keeping in view the ever rising pollution in the national capital which was rightly compared to a gas chamber, the Court not only justified the imposition of green tax on the vehicles entering Delhi, but also directed that the vehicles especially, load carriers which have not their destination in Delhi, better follow different routes. The Court even did not shy away from imposing a ban on the sale of SUVs above 2000 CC in the national capital as the rich cannot pollute the environment while roaming around in their SUVs.
Undoubtedly thus, hygienic environment is an integral facet of healthy life, for a right to live with human dignity certainly becomes illusory in the absence of humane and healthy environment. In this context, the Court has had always held that the word environment has a broad spectrum so as to carry within its ambit both hygienic atmosphere and ecological balance.
Noise Pollution: Since noise has both auditory and non-auditory effects on the life of a person, an unwanted noise is certainly a derogation of ones right to life. Any one can experience that noise affects sleep, hearing, mental and physical health. Besides it can also disturb and damage hearing while evoking other psychological and pathological reactions among human beings therefore, stricter actions must be taken against the noise polluters. The Court was also categorical in saying that quietness and a freedom from noise are indispensable conditions for the full and free enjoyment of a dwelling house such that no one has an absolute right to create noises upon his own land to the annoyance of others who are not willing to subject themselves to this unwanted noise after all, a right not to listen also spells out of ones right to free speech and expression. Moreover, if it is agreed for the sake of an argument that one has a right to create noise on his land, then the same is also qualified by the condition that it must not be exercised to the nuisance of his neighbors or the public. This was the reason that the Courts even went on issuing directions to the administration that no fire crackers shall be burst at night between 10 p.m and 6 a.m while recognizing the possible dangers of noise pollution on the lives of human beings. While passing the directions in this regard, the Court even refused to entertain any such pleas that certain festivals like Diwali are accompanied customarily by bursting crackers at night or for that matter, the fireworks industry would be adversely affected in the wake of such restrictive directions of the Court. The Court rightly reasoned that such considerations cannot come in the way of enforcement of fundamental rights, for a right to live in peace and comfort in an atmosphere free from pollution of any kind such as that caused by noise, has wider claims than the rights of just a few people. Moreover, no body can claim a fundamental right to create noise by amplifying the sound of his speech thereby, exposing an unwilling listener to such obnoxious levels of noise and hence, violating his right or other persons right to a peaceful and pollution free life guaranteed under Art 21.
At last, but not the least, it can be concluded that what we call as right to life has wider dimensions and its amplitude is growing by the day as the march of this right under Art 21 still continues and its frontiers are continuously being expanded by the Courts to encompass even animal rights under its fold, a fact that has been fortified by the recent Supreme Court’s refusal from lifting four year old ban on traditional bull fighting festival in Tamil Nadu called Jallikattu.
Indeed, all credit goes to the judiciary for using its ingenuity for adding wings to this valuable right so that it could soar to dizzy heights…
Every time, capital punishment is awarded and executed to a condemned prisoner in this country, a raging debate picks up each time highlighting several points such as its efficacy, particularly from the view point of being a deterrent, the rights of a condemned prisoner in case of a delayed execution particularly with reference to Art.21 and the extent of presidential powers with particular reference to his power of clemency that the Constitution of India vests in him and the exercise thereof within what time bounds etc. While the constitutionality of capital punishment has long been upheld by the Courts and should not be discussed here. What needs to be discussed here is the rights available to a condemned person in case of delayed execution.
On this matter, the Supreme Court has categorically held that if there is a prolonged delay in the execution of a death sentence then it would be an unjust, unfair and unreasonable procedure to execute the death sentence. According to the Court, prolonged delay in the execution of a death sentence is not only dehumanizing, but also deprives a person (condemned prisoner) of his right to life in an unjust, unfair and unreasonable way so as to offend Article 21 of the Constitution because, even a condemned prisoner is entitled to enjoy his right to life as long as he is hanged. This proposition of the Court is very well attuned to the progressive and civilized Constitutional jurisprudence that is followed everywhere in the world that subscribes to modern Constitutional ethos and human right values.
But on the vital question, as to what constitutes the unreasonable or prolonged delay so as to afford an opportunity to the condemned prisoner to approach the Court for getting his death sentence commuted into the one of a life imprisonment, the court has traversed a long journey to decide conclusively on this contentious issue. As early as in Vatheeswaran vs. State of Tamil Nadu-AIR-1983, the Court had said that a delay exceeding two years in executing a death sentence should be sufficient to entitle a condemned prisoner to invoke Article 21 and demand quashing of his death sentence so much so that the Court even went on to say that the cause of delay would be immaterial and the same could even be attributable to the prisoner himself. This was predictably be a very narrow opinion on the part of the Court and the Court was bound to confront with a multitude of such cases coming before it for commutation wherein 2 years time period have had just elapsed for the simple reason that the condemned prisoner has had moved a number of in fructuous petitions just to cover up 2 years time. While Court did confront with such cases in the aftermath of the above judgment therefore, it discarded the laid down 2 years rule. But admitted in strong terms that the “jurisprudence of the civilized world has very well recognized and acknowledged the fact that a prolonged delay in executing a death sentence can certainly make the punishment when it actually comes to the accused as being inhuman and degrading and thus, a prolonged delay in the execution of a death sentence is unquestionably, an important consideration for determining whether the sentence should be allowed to be executed or not.” This right comes to an accused from Article 21, for the implication of Article 21 is that a prisoner who has experienced a living death for years on, is very much entitled to come to the Court, requesting it to examine the question whether, after all the agony and torment he has been subjected to, is it just and fair to allow the sentence of death to be executed?.
Nevertheless, besides affirming the right of a condemned prisoner in case of a delayed execution, the Supreme Court categorically held in subsequent cases that insofar as the period of delay is concerned, no hard and fast rule can be laid down in this regard as the Court has to consider several factors such as to find out why the delay was caused and who was responsible for such a delay and so on before deciding upon the question that whether a death sentence should be vacated or not. However, in the absence of laying down some discernible criteriaon this point, the controversy with regard to this time duration could not be resolved until the Court seized upon this matter again in next landmark case entitled Triveniben vs. State of Gujarat- AIR-1989.
In the instant case, the Court sought to resolve the conflict of judicial views that had crept into the question of delay in the execution of a death sentence by putting some of the following questions to itself such as:
i) What is the period of delay in the execution of a death sentence?
ii) What could be the starting point that should be taken for computing the delay?
iii) What are the rights of a condemned prisoner who has been sentenced to death, but not executed? And finally,
iv) What are the circumstances that should be considered along with the time before the sentence is being executed?
While answering the above questions, the Court has now explicitly said that the delay which could be taken into account while considering the question of commutation of death sentence into one of life imprisonment could only be from the date, the judgment of the apex court is pronounced which actually marks the conclusion of the judicial process. For this matter however, the time spent on petitions for review including the repeated mercy petitions moved at the instance of the convicted person shall not be considered for the purposes of calculating the period of delay. Thus, a final seal on the calculation of period of delay was applied by the Court to be material for consideration in the delay that occurs during the pendency of a mercy petition or until its final disposal by the executive. This way, the Court also sent a message to the executive that the mercy petitions received by the executive head under Article 72 should be disposed of as expeditiously as it could.
Based on the above principle propounded by the Court, the Supreme Court did not think twice in commuting the death sentence of a number of death row convicts in the recent past right from Rajiv Gandhi killers to Natharipaedophile convict and others…
Article 21 of the Constitution states that: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Ever since the landmark pronouncement of the Supreme Court in Maneka Gandhi case, article 21, has been on its way to emerge as the Indian version of the American concept of due process of law. Being so, this valuable right has since then become a source of many substantive rights as well as procedural safeguards to the people of this country.
Insofar as it being a source of many substantive rights is concerned, right to privacy can be cited as one example which the unanimous decision of the SC Constitution bench of 9 judges declared recently.
In order to understand the rationale behind the Supreme Court’s judgment deducing right to privacy as an inherent adjunct of right to life and personal liberty under Article 21, we need to know what interpretation that the expressions used in Article 21 actually been articulated by the Court.
Firstly, the word ‘life’ used in this Article has never been intended to be used in its simplistic or narrow term to mean only an animal existence instead, in the more compendious terms to include a life that is lived with human dignity and anything that runs counter to this dignity is certainly a violation of this right.
This is what the Apex Court has held its view about especially in the aftermath of Maneka judgment since when a new life and vigor has been infused into this right so as to make it a source of many substantitive and procedural rights for the people of this country such as adequate nutrition, shelter, livelihood and all other necessities of life that go to constitute a dignified and meaningful life. In this sense, it may be insane to argue that if someone tries to breach my privacy, my dignity of life is not hurt otherwise; it would amount to an invitation for intruding into the privacy of someone’s bedroom! If someone’s reputation is a facet of his right to life under Article 21, how can privacy be not covered within the ambit of right to life and hence, Article 21. Similarly, the telephonic conversation of an innocent citizen has been protected by the courts against wrongful or high handed interference by tapping of the conversation by the police, how right to privacy can be not implied from right to life?.
Secondly, the expression “personal liberty” used in this Article is also of widest amplitude in the sense that it does not imply merely an absence of physical restraints on the body of an individual, but covers much wider ground to encompass within its orbit an array of rights most importantly, a right to be left alone or a right not to be disturbed which essentially go to make up the personal liberty of a man. A right not to be disturbed or left alone can certainly mean that no one can intrude into the privacy of my home without my permission or consent. If for the sake of argument, it is admitted that I have voluntarily submitted myself to Aadhar enrollment and have thus surrended my right to privacy, the argument will hardly hold any ground given the fact that the fundamental rights cannot be waived of. If it is accepted the other way round, then my most valuable right of personal liberty would be completely robbed of its significance by accepting an offer from the executive of a lesser punishment in lieu of getting myself convicted under an ex-post facto law. This has also been the recent view of the apex judiciary on personal liberty so much so that its content and meaning has further been expanded to embrace within it even all those individual freedoms which are guaranteed by Article 19(1) so as to constitute personal liberty in real terms. It means that any law which seeks to encroach upon my personal liberty has also to satisfy the test of Article 19 in order to be adjudged reasonable and constitutional. For the sake of clarity, we can say that the government cannot tap my telephone or place it and its contents under surveillance without any reasonable cause as it would amount not only to a violation of my right to free speech, but also my right to privacy which now has been established on a firm footing as an inherent part of Article 21. Before the present verdict was pronounced by the Court on Privacy, the Court has had already upheld it as an inherent part of Article 21. For example, the S.C held in the PUCL vs UOI-1991 case thus:
“… We have; therefore, no hesitation in holding that right to privacy is a part of right to life and personal liberty enshrined under Article 21 of the Constitution. Once the facts in a given case constitute or reveal a right to privacy, Article 21 is automatically attracted. The said right cannot be curtailed except according to a procedure established by law….”
In a nutshell, it may be said that Article 21 and Article 19 should be read together so as to offer a new lease of life to right to life and personal liberty. The grounds on which various individual freedoms under Article 19 can be restricted may also be applied to Article 21 provided the law provides a set procedure which is just, fair and reasonable tantamount to American concept of due process. This remains to be seen whether, the procedure laid down under Aadhar Act under challenge before the Court carry all such attributes!
Art. 22 provides procedural safeguards against arbitrary arrest and detention. Art. 22 states that (a) No person who is arrested shall be detained in custody without being informed of the grounds for such arrest; (b) Every person who is arrested and detained in custody shall be produced before the nearest magistrate with a period of twenty-four hours of arrest; and (c) No such person shall be detained in custody beyond the said period without the authority of a magistrate.
The above safeguards are not, however, available to (a) an enemy alien, (b) a person arrested or detained under a law providing for preventive detention.
Preventive detention means detention of a person without trial. It is different from ordinary or punitive detention. The object of punitive detention is to punish for what he has done. Preventive detention differs from punitive detention both in respect of its purpose and its justification. The object of preventive detention is not to punish a man for having done something but to intercept his before he does it and to prevent him from doing it. In preventive detention no offense is proved nor any charge is formulated. Further, the justification of such a detention is suspicion or reasonable probability of the impending commission of one prejudicial Act.
The Constitution authorizes the Legislature to make laws providing for preventive detention. The Parliament as well as some of the State Legislatures have enacted laws providing for preventive detention for reasons connected with the security of the State, foreign affairs, maintenance of public order, maintenance of supplies and services essential to the community etc. Some of the preventive detention acts enacted by the Parliament are
Preventive Detention Act 1950 repealed in 1969,
The maintenance of internal security act (MISA), 1971 repealed in 1978
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) 1974,
National Security Act 1980,
Terrorist and Disruptive activities(Prevention) Act (TADA), 1985 later repealed in 1995
Prevention of terrorism ordinance (POTO), 2001, 2002
Right against Exploitation
23
Prohibition of traffic in human beings and forced labour.
24
Prohibition of employment of children.
Etc.
However, a preventive detention must satisfy the following conditions set out in Art. 22(4) as amended by the 44th Amendment Act 1978: -
(i) The Government is entitled to detain an individual under preventive detention only for two months. It is seeks to detain the arrested person for more than 2 months, it most obtain a report from an Advisory Board— that will examine the papers submitted by the Government any by the accused, — as to when the detention is justified.
(ii) The person so detained shall, as soon as possible may be informed of the ground of his detention excepting facts, which the detaining authority considers to be against the public interest to disclose.
The person detained must have the earliest opportunity of making a representation against the order of detention.
Art.23 prohibits traffic in human beings and “begar” and other similar forms of forced labour. Prohibition of traffic is human beings means prohibition of slavery, traffic in women, children or crippled for immoral or other purposes. “Begar” means involuntary work without payment.
However, the Constitution empowers the State to impose compulsory service for public purpose without any discrimination on grounds only of religion, race, caste or class or any of them. Art.24 prohibits, employment of children below the age of 14 years in any factory or miner an other hazardous employment. The prohibition employed by Art. 24 is absolute and does not admit of any exception for the employment of children in a factory or a mine etc.
The Bill seeks to amend the Child Labour (Prohibition and Regulation) Act, 1986, (hereforth referred to as the Child Labour Act, 1986) which prohibits the engagement of children under 14 years in certain types of occupations and regulates the condition of work of children in other occupations.
The Bill introduces the term ‘adolescent’ to mean a person who is between 14 and 18 years. And, prohibits the employment of adolescents in hazardous occupations or processes (mines, inflammable substances or explosives, or hazardous process) as defined in the Schedule.
The Bill redefines ‘child’ to mean a person below 14 years or any age as specified in the Right of Children to Free and Compulsory Education Act, 2009, which ever is more.
The Bill prohibits the employment of children in any occupation or processes. However, the Bill allows the child helping his family after school hours, although this exception does not make the exception when there is home-based contractual or outsourced work.
In comparison to the Schedule of hazardous occupation or processes, the Bill allows for both the addition or omission of any hazardous occupation or process, instead of the previous addition only.
The Bill also enhances the punishment for employing a child labourer by increasing the penalty to between 6 months to 2 year, and the fine of Rs 20,000 to Rs. 50,000. The Child Labour Act, 1986 stipulated punishment from 3 months to 1 year, and a fine of Rs. 10,000 to Rs. 20,000. The imprisonment and fine can be applied cumulatively.
Similarly, the Bill imposes punishment for employing an adolescent in hazardous occupation or processes of 6 months to 2 years, or fine of Rs. 20,000 to Rs. 50,0000 or both.
Furthermore, in case of person repeats the offense under the Bill, the punishment has been enhanced to 1 – 3 years, and makes the offenses punishable under this act as cognizable.
ART 25: Freedom of conscience and free profession, practice and propagation of religion. -
Art. 25(1) guarantees to every person the freedom of conscience and the right to profess, practice and propagate religion. This right is, however, subject to public order, morality and health and to the other provisions of Part III of the Constitution. Further the State is empowered by Law -
(a) To regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice.
(b) To provide for (i) social welfare and reform, and (ii) to throw open Hindu religious institutions of public character to all classes and sections of Hindus.
Thus, under Art. 25(1) a person has a twofold freedom— (a) freedom of conscience; and (b) freedom to profess, practice and propagate religion.
The freedom of ‘conscience’ is the absolute inner freedom of the citizen to mold his own relation with God in whatever manner the likes. When this freedom is expressed in outward form it is “to profess and practice religion.”
To ‘profess’ a religion means to declare freely and openly one’s faith and belief. He has the right to practice his belief by practical expression in any manner he likes.
To ‘practice’ religion is to perform the prescribed religious duties, rites and rituals, and exhibit his religious beliefs and ideas by such acts as prescribed by the religious order in which he believe.
To ‘propagate’ his religion means to spread and publicize his religious views for the edification of others. But the word “propagation” only indicates persuasion and expression without any element of coercion. The right to propagate one’s religion does not give a right to convert any person to one’s own religion. What Art. 25 guarantees is not right to convert another person to one’s own religion, but to transmit or spread one’s religion, by exposition of its tenets. Art. 25 guarantees “freedom of conscience” to every citizen, and not merely to the followers of one particular religion. It, therefore, another person to one’s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion that would impinge on the “freedom of conscience” guaranteed to all the citizens of the country alike.
Though the Constitution of India does not define the word ‘Minority’ and only refers to ‘Minorities’ and speaks of those ‘based on religion or language’, the rights of the minorities have been spelt out in the Constitution in detail.
The Minority Rights provided in the Constitution which fall in the category of ‘Separate Domain’ are as under:-
i) right of ‘any section of the citizens’ to ‘conserve’ its ‘distinct language, script or culture’; [Article 29(1)]
ii) restriction on denial of admission to any citizen, to any educational institution maintained or aided by the State, ‘on grounds only of religion, race, caste, language or any of them’; [Article 29(2)]
iii) right of all Religious and Linguistic Minorities to establish and administer educational institutions of their choice;[Article 30(1)]
iv) freedom of Minority-managed educational institutions from discrimination in the matter of receiving aid from the State;[Article30(2)]
v) special provision relating to the language spoken by a section of the population of any State;[Article 347]
vi) provision for facilities for instruction in mother-tongue at primary stage;[Article 350 A]
vi) provision for a Special Officer for Linguistic Minorities and his duties; and [Article 350 B]
vii) Sikh community’s right of ‘wearing and carrying of kirpans;
The issue of triple talaq seemed to have taken a center stage both in political and legal discourse. While on the one hand, the government’s stand before the Apex court against this practice is based on certain well entrenched constitutional principles, the Muslim clerics on the other hand, try to uphold this centuries old practice as a part of their religious freedom which according to their assertion, cannot be interfered with from any secular fabric which constitution has so painstakingly woven into the body politic of the nation.
To put things into right perspective, let’s first of all, put to ourselves certain genuine questions:
Is a practice like triple talaq constitutionally tenable in a country like India where rule of law is the foundational principle of our constitutional edifice?
Can we allow such a practice to continue well into the 21st century when a new jurisprudence of rights has seen its evolution even for non humans?
Can universal values like human rights be given a go by in the name of some ill founded and irrational customary practices in the name of religious freedom?
Can a practice like triple talaq be defended on the ground of religious freedom as is being claimed or is it merely a cloak for male hegemony?
Lets answer the last question first as rest of the questions could be answered automatically once we examine the contours of the right to religious freedom which our constitution guarantees.
The biggest paradox in the matter of religious freedom lies in the fact that the term religion is not subject to any precise definition and this is where the problem lies as some times purely secular activities like matrimony or inheritance are being claimed as a part of the religion and hence claiming immunity from being challenged or interfered with.
No doubt, a religion is certainly a matter of faith and a belief system which binds the spiritual nature of a human being to some so called super natural being and this spiritual bond is established by a person through several ways such as worship, belief, faith, devotion and not necessarily worshipping idols. At the same time, a religion instead of merely being a belief system or matters of faith does include all those rituals, observances, ceremonies, practices as well as various modes of worship that are associated with a particular religion. It is in this all encompassing sense that our constitution guarantees the right to religious freedom to everyone. In other words, our constitution not only permits one to hold on to particular beliefs and faiths but also to exhibit the same in any overt manner in the form of ceremonies, rituals or practices.
But then comes the dominant question as to what practices or ceremonies be considered an integral part of the religion because, if this distinction is not made, the danger remains that even purely secular practices not essential to a religion may be given a religious color and be sought protection from being regulated or challenged.
Therefore, in order to decide that a particular practice be treated as a part of the religion, what is necessary is that it should be as such regarded by that religion as its essential and integral part. This is a very delicate task which the judiciary has performed many times earlier and would decide even in the present case under challenge before it.
With a particular reference to triple talaq, it can be said beyond any iota of doubt that it does not constitute in any sense an essential or integral part of the Muslim religion. To this extent even the Muslim personal law board has conceded by toning down its stance before the court in this matter.
Sometimes, it is also seen that certain practices, even though regarded as religious by a particular religion may have come into being from purely superstitious beliefs and are thus considered as just unessential additions to a particular religion lacking even scriptural backing. Such practices are also not protected under the constitution as not being an integral or essential part of the religion. An instance in this regard if we take Hindu religion as an example were the practices like Child marriage and Sati which were based on just superstitious beliefs among Hindus and held to be not an integral part of Hindu religion. This is why such practices were legally banned nay criminalized in India. Hence, if triple talaq is being considered as a part of Islamic belief system as it is being claimed then such a belief does not carry the blessings of religious freedom just like the practices like Sati or Dowry have had been considered as a part of religious belief among the Hindus. At the same time, Marriage being a secular activity does not fall within the ambit of religious freedom despite having religious underpinnings.
In this sense also, triple talaq is nothing but a superstitious practice which neither carries the conscience of the whole Muslim community nor does it carry the sanction of the tenets of the Islamic religion so much so that the Holy Quran even denigrates such a practice as ‘biddat’ meaning sinful and un-Islamic. After all, to decide a particular religious practice as an essential part of the religion, the only possible recourse is to delve into the Holy Scriptures to know about the status of a particular practice. As in a celebrated case, the Supreme Court found that with reference to Holy book of Quran, compulsorily sacrificing a Cow on Bakr Id day could not be considered as an essential part of the religion. For a Muslim to exhibit his religious beliefs on this day, the Quranic text laid down an option for him to sacrifice a goat or for seven goats, a Cow or a Camel. Hence, there was no Fundamental Right of a Muslim to insist on slaughter of a Cow on the Bakr Id day.
On the same analogy, it has also been held that Purdah system is also not an essential part of the Islamic religion although; this practice has been followed in Muslim religion even to the present day. On the same plank thus, the practice of triple talaq can also be placed.
To be more illustrative as what constitutes an essential part of the religion, we can also cite the example of Sikh religion where carrying of Kirpans or keeping beard and hair unshorn has been held to be an essential part of the Sikh religion as their mention is very well found in the holy scriptures.
Having said that triple talaq is neither an essential or integral part of the religion nor it is held in conscience by the Muslim community as a whole and thus cannot attract the protection of religious freedom under our Constitution.
Let’s say for the sake of arguments although such an argument does not hold any ground that triple talaq is a part of the religious freedom under our constitution, even then it cannot be sustained and can be subject to the regulatory power of the state to the point of abrogation of this practice. This is because; the right guaranteed by our Constitution is not an absolute right but is subject to certain limitations as is revealed by the wordings of Article 25 which states:
“That every person in India shall have a freedom of conscience and a right freely to profess, practice and propagate religion of his own.”
This freedom under the constitution however comes with a rider that the same shall be subject to public order, health and morality as well as other provisions relating to Fundamental Rights.
It clearly means that if a certain community, say for example in the context of triple talaq claims that it is a part of their religious freedom falling within the ambit of practicing a particular religion even then the same can be regulated by the state on the grounds listed above most importantly, on the grounds of health and morality.
A practice like triple talaq is not only heavily loaded against the Muslim women, but it is also detrimental to their health keeping in view the mental stigma and emotional disturbance that it can have on the victims of this practice. There is a clear evidence that triple talaq has had serious repercussions on the mental health of the Muslim women who willy nilly went through this stigma.
At the same time, just like polygamy, triple talaq also goes against the principle of morality as being injurious to public morals and can thus be struck down on this ground as well.
Yet more importantly, the right to religious freedom is also subject to regulation on the part of the state on the ground of social welfare and reform. By abrogating or legally regulating this practice, the state shall be taking a progressive step forward in the direction of social welfare and social reform by protecting the interests of the poor and destitute Muslim women who would otherwise tend to remain always at the receiving end of the male dominated Muslim society especially when they would be driven out of their home towards the fag end of their life.
Last but not the least, a practice like triple talaq also goes against certain other entrenched provisions of the Constitution broadly, gender justice that is guaranteed by our constitution in unequivocal terms under the provisions relating to Fundamental Rights.
Firstly, Article 14 of the Constitution guarantees to every person in India, equality before Law and equal protection of Laws. The notion of equality before law strikes at the very root of arbitrariness and thus promotes the concept of Rule of Law. Isn’t it that a practice like triple talaq negates the very conception of rule of law? It certainly does and thus imposes a duty nay a constitutional obligation on the part of the judiciary to emasculate such a practice from the landscape of the Indian society.
Moreover, it must be underlined that the conception of rule of law even at the supranational level has been given socio-economic overtones so as to embrace the notion of social justice within its ambit. By striking down a practice like triple talaq on the touchstone of the Constitution, the judiciary would be doing a great service to this nation by upholding the concept of rule of law that nevertheless is a keystone of our Constitutional edifice.
Secondly, Article 15 of the Constitution again in very clear terms outlaws gender discrimination and coupled with that it also imposes an additional duty on the state to make special provisions for the welfare of the women-(Article 15(3). This provision again casts a duty on the Judiciary to uphold these provisions of the Constitution especially when it has been designated as the guardian of the Fundamental Rights of the people of this country.
Thirdly, Article 21 which guarantees to every person in India a right to life and personal liberty under which right to life connotes a right to live a life with human dignity. Isn’t that a practice like triple talaq goes against the very spirit of a dignified life?
Finally, Article 51-A under Fundamental duties imposes a duty on every citizen of the country to renounce practices which are derogatory to the dignity of the women - (Aricle-51-A (e)).
All said and done therefore, it is hoped that our judiciary by interpreting the several provisions of the Constitution in the backdrop of raging triple talaq row, would once again ensure that in our country, Constitution reigns as the supreme Law of the Land…
Art. 26 states that, subject to public order, morality and health, every religious denomination or any section of it shall have the following rights: -
(a) To establish and maintain institutions for religious and charitable purposes;
(b) To manage its own affairs in matters of religion;
(c) To own acquire movable and immovable property; and
(d) To administer such property in accordance with law.
The right guaranteed by Art. 25 is an individual right while the right guaranteed by Art. 26 is the right of an “organized body” like the religious denomination or any section thereof.
Right to Freedom of Religion
25
Freedom of conscience and free profession, practice and propagation of religion.
26
Freedom to manage religious affairs.
27
Freedom as to payment of taxes for promotion of any particular religion.
28
Freedom as to attendance at religious instruction or religious worship in educational institutions.
The right to administer property owned by a religious denomination is a limited right, and it is subject to the regulatory power of the State.
Art. 27 provide that “no person shall be compelled to pay any tax for the promotion or main tenants, of any particular religion or religious denomination. This article emphasizes the secular character of the State. The proceeds collected by way of tax cannot be spent by State for the promotion of any particular religion.
The reason underlying the provision is that India being a secular State and there being freedom of religion guaranteed by the Constitution, both to individual and groups it is against the policy of the Constitution to pay out of public funds any money for the promotion or maintenance of a particular religion or religious denomination.”
The Supreme Court in Jan 2011 dismissed a petition challenging the constitutional validity of the Haj Committee Act, which provides for grant of a government subsidy for pilgrimage every year.
A Bench of Justices MarkandeyKatju and Gyan Sudha Misra rejected the contention by that such a grant violated Articles 14 and 15 and in particular Article 27 (freedom as to payment of taxes for promotion of any particular religion).
On the petitioner's contention that Article 27 was violated, the court said: “If only a relatively small part of any tax collected is utilised for providing some conveniences or facilities or concessions to any religious denomination, that would not be violative of Article 27. It is only when a substantial part of the tax is utilised for any particular religion would Article 27 be violated.”
The Bench pointed out that the State government incurred some expenditure for the Kumbh Mela and the Centre, for facilitating Indian citizens to go on pilgrimage to Mansarover, etc. Similarly some State governments provided facilities to Hindus and Sikhs to visit temples and gurdwaras in Pakistan. “These are very small expenditures in proportion to the entire tax collected. Thus there is no discrimination. Parliament has the legislative competence to enact the Haj Committee Act.”
According to Art. 28 no religious instruction shall be imparted in any educational institution wholly maintained out of State fund. But this clause shall not apply to an educational institution, which is administered by the State but has been established under any endowment or trust, which requires that religious instruction shall be imparted in such institution. Further, no person attending any educational institution recognized by the State of receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institutions or to attend any religious worship that may be conducted in such institution or to any premises attached there to unless such person or if such person is a minor his guardian has given his consent thereto. Thus Art. 28 mention four types of educational institutions.
(a) Institutions wholly maintained by the State.
(b) Institutions recognized by the State.
(c) Institutions that administered by the State- but are established under any trust or endowment.
In the institutions of (a) type no religious instructions can be imparted. In (b) and (c) types of institutions religious instructions may be imparted only the consent of the individuals. In (d) type institutions, there is no restriction on religious instructions.
Term secularism emerges from “Secularis” (Latin word) meaning temporal, non-spiritual, worldly.
Securialization shows a progressive retreat of religion from Public sphere.
Secularism emerged in the west as a result of the reformation movement.
Protestant Religion has establish that religion is a personal affairs. It comes within private sphere. State has no role in this context because Authority of State is limited to Public Sphere.
Secular State is different from Theocratic State.
In theocracy, official alliance between religion & political exist, state is ultimately governed by priests.
In contemporary times S. Arabia, Iran are Theocratic State.
There can be other ways in which states link themselves with religion e.g. in U.K. protestant church is the national church.
States like Pakistan declared themselves as Islamic states. In comparison to above states, we can say that in India, State does not have any official religion state’s not governed by religious heads. State’s does not follow preferential policy towards a particular state religion. However, the status of Indian state as a Secular State comes under attack from both within.
1. In India the complete separation of Politics & Religion does not exist.
2. Use of Religion symbols are allowed in elections.
3. India does not have uniform Civil Code.
4. India suffers from, communal violence on regular basis.
5. Many Human right activities feel that the minorities are not adequately representative
6. The Indian idea of secularism does not match to the dictionary meaning of secularism.
Scholars like Ashish Nandybas coined a term called “Indianism” for Secularism in India. Constitution gives special rights to Minorities (Article 29). Some call Indian secularism as PSEUDO - Secularism.
Despite above challenges to Indian secularism we can establish that India is a Secular State. India fulfils the minimum criterion of Secular State.
Indian Secularism adopts the Western ideal of Secularism but also incorporate its own version of it. Secular is defined as an ideal of an Indian State. Indian Supreme Court in S.R. Bommai case establish that secularism is a Basic structure of Constitution of India.
For Nehru, Secularism is a basic necessity for India. He consider the policy of secularism essential for fulfillment of project of nation building in India.
Following Scholars have defined
(1) Dr. S. Radhakrishnan
In Indian context, the western model of Secularism is in appropriate. We cannot reject the relevance of Religion from life of Indians.
India is a secular state because
1. Equal status is give to all religion.
2. State does not have any official religion.
3. No religion is given special status.
4. No person suffers from any disability due to religion.
(2) K.M. Pannikar
There are 3 reasons to calling India Secular
1. The basis of political institutions are socio-eco interests & not religion.
2. The distributive policies are not based on criticism of Religion.
3. No discrimination among citizens on ground of faith.
(3) Democratic Republic
India adopted both models of Representative & Direct democracy & we are continuously expanding the concept of Democracy. We have given representation for SC / STs in representative structures. Attempt is being made to provide representation to Women, in national & state legislatures (Women’s Bill).
Art. 29(1) guarantees to every section or the citizens residing in any part of India having a distinct language, script or culture of its own, the right to conserve the same, i.e., language, script or culture. A minority community can preserve its language, script or culture by and through educational institutions. Therefore, the right to establish and maintain institutions of their choice is necessary concomitant to the right to preserve its distinctive language, script or culture. This right is guaranteed to them by Art. 39(1) which says that all minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice.
Cultural and Educational Rights
29
Protection of interests of minorities.
30
Right of minorities to establish and administer educational institutions.
This right is further protected by Art. 30(2), which prohibits the State in granting aid to educational institutions on the ground that it is under the management of a minority whether based on religion or language. This right is, however, subject to clause (2) of Art. 29. According to it no citizen shall be denied admission into any educational institutions maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
The government of India currently follows the following criteria to determine the eligibility of language to be considered for classification as "classical language":
Once a language is declared classical, it gets financial assistance for setting up a centre of excellence for the study of that language and also opens up an avenue for two major awards for scholars of eminence. Besides, the University Grants Commission can be requested to create – to begin with at least in Central Universities – a certain number of professional chairs for classical languages for scholars of eminence in the language.
The classical language and literature being distinct from modern, there may also be a discontinuity between the classical language and its later forms or its offshoots.
Current Classical Languages The government declared Tamil (in 2004), Sanskrit (in 2005). These two languages are undoubtedly parental sources for many languages belonging to the Indo-European family and the Dravidian family of linguistic groups. Later the government declared Kannada and Telugu (in 2008), Malayalam and Odiya (2014) as classical languages of India.
Odiya is billed as the first language from the Indo-Aryan linguistic group and the case for making it a classical language was also premised on the fact that it has no resemblance to Hindi, Sanskrit, Bengali and Telugu.
Till 1978, the right to property formed a part of the fundamental rights and was defined in Art. 19(1) (f) and Art. 31. However, the right to property as a fundamental right proved to be the most controversial and most debated right under Part III of the Constitution and subjected to modifications through Constitutional Amendment Acts. This right also led to filing of many litigations before the courts, on questions relating to compulsory acquisition of private property for public purposes by the State and the payment of compensation to such acquisitions. It was alleged by the state the right to property as a fundamental right stood in the way of bringing in social legislations and establishing socialist pattern of society. Justice Khanna, in the Kesvananda Bharati case (1973), among other things observed that right to property, in his opinion did not form part of the basic structure of the Constitution. The Janata Government, through the 44th amendment Act, 1978 removed the right to property from Part III and made it a Constitutional right under Art. 300A of the “Constitution. Art. 300A states that no person shall be deprived of his property save the authority of law. The right to property is now only a legal right and is no more a fundamental right.
(1) Notwithstanding anything contained in article 13, no law providing for-
(a) The acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or
(b) The taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or
(c) The amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or
(d) The extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or
(e) The extinguishment or modification of any rights accruing by virtue of any agreement, lease or license for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or license,
Shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19:
Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent:
Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.
(2) In this article
(a) The expression estate¨ shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include-
(i) Any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right;
(ii) Any land held under ryotwari settlement;
(iii) Any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;
(b) The expression rights¨, in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue.
Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or Tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.
Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19.and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy:
Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.
Saving of laws in respect of anti-national activities. [Rep. by the Constitution (Forty-third Amendment) Act, 1977, s.2 (w.e.f.13-4-1978).]
Art. 32 guarantees to individuals the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights conferred under the Part III of the Constitution. Unlike the other fundamental rights, this right is remedial in nature. It is this remedial right, which makes the other fundamental, rights real. If there is no remedy, there, there is no right at all. It is the guaranteed remedy, which provides teeth to all the fundamental rights. That is why Art.32 itself has been incorporated as a fundamental right in the constitution. Dr. B.R. Ambedkar in the Constituent Assembly described Art. 32 as the most important of all the articles and an Article without which the Constitution would be a nullity. According to him it is the very heart and soul of the Constitution. It is this Article which makes the Supreme court the protector and guarantor of fundamental rights, since in the even of infringement of any of the fundamental, right of an individual, the Constitution places a duty on the Supreme court to engage the petition of an aggrieved individual and provide remedial measures for him. Thus Art. 32 is the fundamental of the fundamental rights. Art. 32 i available only in cases of violation of fundamental rights and not in case of violation of other legal rights.
Under Art.32 (2) the Supreme Court is endowed with the power to issue directions or orders, of writs, including writs in the nature of habeas corpus, mandamus, prohibition, certioraris and quo warrant whichever is appropriate for the enforcement of any of the right conferred, by Part III of the Constitution.
(a) Habeas Corpus. A writ of habeas corpus can be issued against any person-private or official. It is in the nature of an order calling up the person who has unlawfully detained another person to produce the latter before the court. The words habeas corpus literally means to have the body. The object of this write is, therefore, to have the detained person before the court, so that it can be ascertain whether the detention, legal or not. If it is found to be unlawful, the court sets him free forthwith. It is not essential that the detained person must physically be produced before the court always but what is important is, for the court to obtain the knowledge or reason for his detention.
(b) Mandamus. Mandamus literally means ‘ command’. It is, thus an order of a superior court commanding a person holding a public office or a public authority— (including the Government) to do or not to be something, in the nature of public duty. A writ of mandamus can be, granted only in cases where there is a statutory duty imposed upon the office concerned or a public authority, and there is failure an the part of the officer or public authority to discharge the statutory obligation. If follows, therefore, that she aggrieved party should have a legal right under the statute to enforce its performance, for issuing a writ of mandamus. Private right cannot be enforced by the write of mandamus. The duty sought to be en forced must be a public duty, i.e. a duty cast by law. It, therefore, does not lie against a private individual or private organization, because they are not entrusted with a public duty.
(c) Prohibition. A write of prohibition is issued by a superior court to an inferior court or tribunal to prevent it from exceeding its jurisdiction and to compel it to keep within the limits of its jurisdiction. Its sole purpose is, therefore, to prevent inferior courts from usurping a jurisdiction with which they are not legally vested. A writ of prohibition can be issued, when, there is excess of jurisdiction or absence of jurisdiction on. It can be issued only against judicial and quasi-judicial bodies.
(d) Certioraris. A writ of certioraris has much in common with a writ of prohibition. The only difference between the two is, whereas a writ of prohibition. The only difference between the two is, whereas a writ of prohibition is issued the trial of a case in which it has assumed excess of jurisdiction a writ of certioraris is issued to quash the order passed by an inferior court of or tribunal in excess of jurisdiction. A writ of Prohibition is thus, available during the pendency of the proceedings before the order is passed but a writ of certioraris is issued only after an order has been passed an to nullify such an order.
(e) Quo Warranto. The words quo Warranto means... “What is your authority”. A Writ of quo Warranto is issued against the holder of a public office to show to the court under what authority he holds the office. The object of this writ is, therefore, to prevent a person holding a public office, which he is not legally qualified to hold. A writ of quo Warranto can be claimed by any person-whether he is”. Personally aggrieved or not.
The Constitution of India, which provides for the Fundamental Rights under Part III, also contains provisions for the suspension of Fundamental Rights. The Fundamental rights guaranteed to individuals can, thus be made inoperative. When the President proclaims under Art. 352 of the Constitution a national emergency on grounds of war or external aggression, the rights guaranteed to citizens under Art. 19 are automatically suspended. The Constitution further empowers the President under Art. 359 that when a national emergency is imposed to suspend any or all of the other fundamental rights by issuing a separate proclamation. In this regard, an important change has been introduced by the 44th Amendment Act 1978. This Amendment prohibits the suspension of art. 20 and 21 (Protection is respect of conviction of Offenses and protection of life and personal liberty even during a national emergency. The position, therefore, is when a national emergency is in operation, the right to move the court for the enforcement of any or all the Fundamental Rights’s guaranteed under Part III of the Constitution, exception rights conferred under Arts. 20 and 21 can be suspended by a proclamation issued by the President. This means that the State shall be freed from the limitations imposed by the Fundamental Rights, which are suspended. The Legislature shall be competent to enact any law and the Executive shall be at liberty to take any action, even if such an enactment or action infringes the Fundamental Right of individuals, which are suspended. So far as the suspended rights are concerned, the individuals shall have no protection against the State, as long as the emergency is in operation. The courts cannot issue writs or pass any order for the enforcement of the Fundamental Rights that have been suspended. However, as soon as the national emergency ceases to be in operation the Fundamental Rights, which are suspended, spring back to life automatically. The President may also by issuing a separate proclamation restore the Fundamental Rights (other than those guaranteed under Art 19), which were suspended under Art. 359, even when the national emergency is in force. But the individuals cannot have nay remedy for acts done against them in violation of the Fundamental Rights, which were suspended during the period of proclamation.
Power of Parliament to modify the rights in their application to Forces, etc.—Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application 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 in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or
(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c),
Fundamental Rights available to Non-citizens
1.
Article 14
Rights to equality
2.
Article 20
Protection in respect of conviction of offences.
3.
Article 21
4.
Article 23
5.
Article 24
Prohibition of employment of children in factories.
6.
Article 25
7.
Article 26
8.
Article 27
9.
Article 28
Freedom as to attendance at religious instruction or religious worship in certain educational institutions.
A parliamentary law enacted under Art 33 can also exclude the court martials (tribunals established under the military law) from the writ jurisdiction of Supreme Court and the hight courts, so far as Fundamental Rights are concerned.
Restriction on rights conferred by this Part while martial law is in force in any area.—Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.
Restriction on rights conferred by this Part while martial law is in force in any area Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area
An Act to enable certain special powers to be conferred upon members of the armed forces in disturbed areas in the States of Assam , Manipur, Meghalaya, Nagaland and Tripura and the Union Territories of Arunachal Pradesh and Mizoram.
The Armed Forces Special Powers Ordinance of 1942 was promulgated by the British on August 15, 1942 to suppress the Quit India Movement.
In this Act, unless the context otherwise requires,
(a) "armed forces" means the military forces and the air forces operating as land forces, and includes any other armed forces of the Union so operating;
(b) "disturbed area" means an area which is for the time being declared by notification under s.3 to be a disturbed area;
The Articles in the Constitution of India empower state governments to declare a state of emergency due to one or more of the following reasons:
In such cases, it is the prerogative of the state government to call for central help.
Difference between Martial Law and National Emergency
Martial Law
National Emergency
1
Imposed on breakdown of law and order due to any reason
Only three grounds, War, External aggession or armed rebellion
2
Suspends Govt. and ordinary law courts
Continues Govt. and ordinary law courts
3
No specific provision in Constitution
Explicit and specific detailed position in constitution
4
Affects only FRs
FRs, Centre-State relations, Revenue Distribution
5
Imposed on specific areas
Either in whole country or specific region
Power to declare areas to be disturbed areas.—If, in relation to any State or Union Territory to which this Act extends, the Governor of that State or the Administrator of that Union Territory of the Central Government in either case, is of the opinion that the whole or any part of such State or Union Territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government, as the case may be, may, by notification in the Official Gazette, declare the whole or such part of such State or Union Territory to be a disturbed area.
Special powers of the armed forces.—Any commissioned officer, warrant officer, non commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area :—
(a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force; even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;
(c) arrest without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest
On 31 March 2012, the UN asked India to revoke AFSPA saying it had the no place in Indian democracy. Christof Heyns, UN's Special Rapporteur on extrajudicial, summary or arbitrary executions said "During my visit to Kashmir, AFSPA was described to me as 'hated' and 'draconian'. It clearly violates International Law. A number of UN treaty bodies have pronounced it to be in violation of International Law as well."
Legislation to give effect to the provisions of this Part.—Notwithstanding anything in this Constitution,—
(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws—
(i) with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and
(ii) for prescribing punishment for those acts which are declared to be offences under this Part; and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii);
(b) any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters referred to in sub-clause (i) of clause (a) or providing for punishment for any act referred to in sub-clause (ii) of that clause shall, subject to the terms thereof and to any adaptations and modifications that may be made therein under article 372, continue in force until altered or repealed or amended by Parliament.
Key terms
Fundamental rights:There are some essential basic, natural and inalienable rights or freedoms which, subject to provisions of the Constitution, cannot be violated or interfered with, by any law, order, regulation or Act of government. Articles 12 to 35 of the Indian Constitution is incorporated in Part III of the Constitution enumerate the list of Fundamental Rights given to citizen of India. Fundamental Rights which are guaranteed by Indian Constitution are not absolute and are thus, subjected to certain qualifications and restrictions.
Human rights: These refer to those inborn rights and privileges which belong to a person, regardless of constitutional or legal provisions and are available to every person by virtue of his or her being a human being.
International Covenant on Civil and Political rights: An international agreement adopted by the UN General Assembly on Dec.16, 1966 providing for the protection and honour of basic human rights by the member countries.
Code of civil procedure: The procedural law enacted in 1908 providing for the procedure to be followed in the perusal of legal matters of civil nature.
Code of Criminal procedure: A similar procedural law as amended in 1973 for criminal matters.
Indian penal code: A substantive law that defines about the crimes and offences of almost every nature.
Suo-moto: literally refers to “on its own”.
Scandinavian Countries: The countries lying near the South Pole such as Sweden, Norway, Portugal and Denmark etc.
Natural rights: Those rights, which are considered to be essential for a man to lead a dignified human existence in the society. These rights convert a man into a human being.
Bill of rights: A historic bill under the US constitution of 1787, extending fundamental rights to its citizens probably, for the first time in the entire constitutional history of the world.
Magna Carta: One of the greatest common law documents that is considered as a foundation of constitutional liberty.
Rowlatt Act: The black law introduced by the British Parliament in 1918 during its imperialistic rule over India that provided for the incarceration of any Indian without trial.
Nehru Committee report: A committee headed by Pt.Motilal Nehru in 1928 that inter-alia demanded fundamental rights for the first time.
Universal Declaration of human rights: A historic UN convention on human rights adopted by the member countries on Dec.10, 1948.
Totalitarianism: A condition of absolutism and arbitrariness.
Legal rights: Rights which are very well protected by ordinary law of the land as contrasted from the fundamental rights, a remedy for which lies in an ordinary suit in a court of law.
Human rights: The rights which are very basic to the existence of a human being as a human being as distinguished from an animal existence which every civilized state is enjoined upon to extend to its people.
The State: The Union or State legislature or any instrumentality of the State including even a private agency as defined in Article 12 of the Indian Constitution.
Doctrine of Eclipse: Applies to pre-constitutional laws in force under Article 13 with respect to that part or provision of the law which is found to be inconsistent with the fundamental rights to remain eclipsed till the time it is amended or rectified.
Doctrine of severability: Providing for the severability of a valid law from that of the invalid one, but applies only to post Constitutional laws, the laws enacted after the promulgation of the Constitution. If the invalid law can not be severed from the valid portion then, the whole law shall be declared null and void.
Laws in force and Existing laws: Existing laws include which are actually in force or potentially in operation. The first includes the law actually in force and not those whose operation has been suspended or which have not been extended to certain territories.
Law: Anything that has a force of law either as a legislation enacted by the legislatures concerned or the one’s enacted under delegated legislation in the form of orders, rules or byelaws etc.
By-laws: Regulations made by the local authority or corporation or company or society for its members for their day to day operation. They are provided in their principal Acts.
Custom: An unwritten law dating back to civilization considered binding by the people.
Abridge: To curtail the scope and amplitude of a fundamental right.
Amendment: A formal revision or addition proposed or made to a statute, constitution, or other instrument.
Judicial review: The power or competence of the courts especially, Supreme Court and High Courts to review the Constitutional validity of a law enacted by a competent legislature.
Equality before law: Inherent in it is the concept of ‘Rule of Law’ that provides for the subjection of every individual before the ordinary law of the land. It simply implies that everybody is equal before the law of the land or in the eyes of Law.
Equal protection of laws: Simply means that “Like should be treated Alike.” In other words, law should be equally and evenly applied to those under equal circumstances.
Rule of Law: This means absolute supremacy of predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness or even of wide discretionary authority on the part of government.
Abolition of Untouchability: Article 17 of the Constitution of India abolishes untouchability and forbids its practice in any form. The enforcement of any disability arising out of “Untouchability” is to be an offence punishable in accordance with law. The Untouchability (Offence) Act, 1955 prescribes punishments for practicing untouchability in any forms.
Abolition of titles: Constitutional mandate on the Government to refrain from exercising any title onto an individual except military and academic titles.
Freedom of expression: Inherent in it is the freedom of press.
Right to information: A right to information accessible, which is held by or under the control of any public authority.
Reasonable restriction: A restriction is reasonable only when there is paper balance between the rights of the individual and that of the society.
Fourth Estate: The journalistic protection; the media.
Defamation: Publication of a false or derogatory statement regarding a person, which lowers his reputation in the yes of members of the society.
Double jeopardy: No person can be prosecuted for the same offence twice.
Self incrimination: Act of indicating one’s own involvement in a crime or exposing oneself to prosecution by making a statement against one’s own self.
Ex-post facto law/ retrospective Legislation: An act that applies to a period before the act is passed.
Procedure established by law: Doing strictly the way it is provided under the relevant law in force as contrasted from the discretionary and arbitrary application of law.
Preventive detention: Detaining a person as a preventive measure; well before he actually commits the crime or offence in the interest of the State or its security, safety and integrity.
Punitive detention: Involving or inflicting punishment for which a person is being detained after he has actually committed the crime or offence as distinguished from the preventive detention.
Trafficking in human beings: Trade in human beings. Inherent in it is the prohibition against beggary or child labour.
Freedom of conscience: To profess, practice or follow any faith or religion as per one’s own conscience, free will and free mind.
Religious denomination: Different religious communities.
Religious instructions: Teaching in one’s own religion in terms of its particular language and script.
Minority institutions: Article 46 of the Constitution lays down Directive Principles for the State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation whereas Article 29 provides for protection of interests of minorities and Article 30 provides for right of minorities to establish and administer education institution. In TMA Pai case, 2003 of the Supreme Court relates to establishment of minority educational institutions.
A Writ: A judicial process of written command or order by court, by which any one is summoned or directed; a legal instrument to enforce obedience to the order for restraining to do some act.
Habeas corpus: A court order which requires a person who has been illegally detained beyond 24 hour to be produced before the court.
Mandamus: A Court order in the form of a writ issued against a public official to perform a specific duty, say for example, granting a license of permit to a person who is legally entitled to it.
Certiorari: An order of a higher court which quashes the decision of a lower court because, it is based either on an irregular legal procedure or excess of jurisdiction.
Quo-warranto: Literally means: “What is your authority”?Is a writ used to inquire into the authority by which a public office is held or a franchise is claimed. Or in other words, it refers to an order by court or any authority in the form of a writ, by which any person who occupies an independent substantive public office or franchise or liberty, is asked to show by what right he claims it.
Martial law: Simply refers to a military rule.
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