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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.".
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
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;
Art 26: Freedom to Manage Religious Affairs
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.
Cultural and educational rights
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
Protection of life and personal liberty.
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
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.
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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