FUNDAMENTAL RIGHTS

FUNDAMENTAL RIGHTS

 

BACKGROUND
  • During ancient times, focus was more on justice as opposed to the rights.
  • The notion of the entitlements of the rights can be traced back to “Magna Carta” of 1215.
  • Human rights are abstract formulations which can be traced to religious and moral philosophies.
  • Codification and enumeration of these rights allows them to develop and gave rise to human rights laws.
  • The Motilal Nehru committee had demanded a bill of rights as far back as in 1928.
  • During the Indian National Movement, this idea of rights was further sharpened and expanded to constitutional rights.
  • Our Constitution reflected this long tradition and listed the fundamental rights. Since 1950, the judiciary has functioned as an important protector of rights.

 

GENERATIONS OF RIGHTS
  • In the writings of Jotirao Phuley (1827-1890), a radical social reformer from Maharashtra, we find one of the earliest expressions of the view that rights include both freedom and equality.
  • With civilisation of the society and development of citizen-state nature, rights got more refined and broader versions.
  • However, judicial interpretation and rulings played stellar role in broadening the scope and ambit of rights in the then contemporary contexts. This made rights more inclusive in spirit.
  • Given historical and evolutionary nature of the rights, they can be divided into following different generations

 

 FIRST GENERATION

  • Civil and Political – Right to liberty
  • Rights to life
  • Freedom of speech
  • Right to speech

 

SECOND GENERATION

  • Socio – Economic rights – Right to Equality
  • Right to work
  • Right to education
  • Right to food
  • Right to shelter

 

THIRD GENERATION

  • Right of collective – fraternity
  • Right of sexual minorities
  • Right of ethnic and religious minorities
  • Consumer rights
  • Right to differently abled
  • Right to clean and healthy environment

 

FOURTH GENERATION

  • Rights of future generations – impacts the whole humanity
  • Exploration of cosmic space
  • Sustainable use of Global commons
  • Net neutrality
  • Right to internet as a basic human right.

 

CONSTITUTIONAL PROVISIONS AND SIGNIFICANCE OF FR
  • Constitution makers derived inspiration from the Constitution of USA (Bill of Rights).
  • Fundamental Rights are enshrined in Part III from Art. 12 to 35.
  • Part III of the Constitution is rightly described as the “Magna Carta” of India.
  • FR in our Constitution are more elaborate than those found in the Constitution of any other country in the world, including the USA.
  • The FRs are guaranteed by the Constitution to all persons without any discrimination.
  • FRs uphold the equality of all individuals, the dignity of the individual, the larger public interest and unity of the nation.
  • The FRs are meant for promoting the ideal of political democracy.
  • FRs prevent the establishment of an authoritarian and despotic rule in the country.
  • Protect the liberties and freedoms of the people against the invasion by the State.
  • They operate as limitations on the tyranny of the executive and arbitrary laws of the legislature à FR aim at establishing ‘a government of laws and not of men’.
  • The FR are guaranteed and protected by the Constitution, which is the fundamental law of the land.
  • FR are most essential for the all-round development (material, intellectual, moral and spiritual) of the individuals.
  • At present, there are only six Fundamental Rights.
  • Constitution in its original text, provided for seven Fundamental Rights. 44th Amendment Act, 1978 deleted Right to property from the list of FR and made it a legal right under Art. 300-A in Part XII of the Constitution.

 

NATURE OF FUNDAMENTAL RIGHTS

Judicial interpretations have expanded the scope of rights in many respects. The government and administration of our country function within this overall framework.

Rights enforce limitations on the functioning of the government and ensure democratic governance of the country.

  • Most of the rights operate vertically (against the state), while others are operated horizontally.
  • Most of the rights are negative in spirit, where some are positive in nature conferring certain privileges on the persons. E.g. Art. 21A.
  • FR are justiciable, defended and guaranteed by the Supreme Court. Aggrieved person can directly go to the SC (Art. 32) and HC (Art. 226).
  • They are available to all citizens. Some are available to non-citizens as well.
  • They are not absolute and sacrosanct but qualified. Parliament can curtail or repeal them but only by a constitutional amendment act subject to the basic structure.
  • Reasonable restrictions could be brought in. This allows FR to strike a balance between the rights of the individual and those of the society as a whole, between individual liberty and social control
  • All of them are available against the arbitrary action of the state.
  • They can be suspended during National Emergency (Art. 352) except the rights guaranteed by 20 and 21.
  • The six rights guaranteed by Art. 19 can be suspended only when emergency is declared on the grounds of war or external aggression (external emergency) and not on the ground of armed rebellion (internal emergency) (by 44th CAA 1978)
  • Scope of operation of FR is limited by 31A, Art. 31B and Art. 31C (saving of laws giving effect to certain directive principles).
  • Application of FR to the members of armed forces, para-military forces, police forces, intelligence agencies and analogous services can be restricted or abrogated by the Parliament (Art. 33).
  • Application of FR can be restricted while martial law is in force in any area (Art. 34).
  • Most FRs are directly enforceable (self-executory) while a few of them can be enforced on the basis of a law made for giving effect to them. Such a law can be made only by the Parliament to maintain uniformity throughout the country (Art. 35) and not by state legislatures.

 

PRIMACY – FR or DPSP?
  • Champakam Dorairajan Case (1952) – Court asserted that all Fundamental Rights are superior over DPSP. FR can be amended to give effect to DPSP.
  • Kerala Education Bill (1957) – Supreme Court had propounded the Doctrine of Harmonious Constructionto avoid a situation of conflict while enforcing DPSPs and the FR.
  • Golak Nath Case (1967) – Court asserted that FR cannot be abridged or diluted. FR are sacrosanct and absolute in nature.
  • Kesavananda Bharathi Case (1973) – Court asserted that Parliament can amend any part of constitution, subject to Basic Structure of the Constitution. This led to evolution of Doctrine of Basic Structure of the Constitution.
  • Minerva Mills Case (1980) – Court asserted that a law made Parliament by under Article 31C would be protected only if it is made to implement directives in Art 39(b) and 39 (c) and not any other DPSPs.

 

MEANING OF STATE UNDER ART. 12
  • The term ‘State’ has been used in different provisions concerning the fundamental rights.
  • 12 had defined the term for the purposes of Part III. The State includes the following-
    • Government (executive) and Parliament of India (legislative) of union.
    • Government (executive) and legislature of states (legislative) organs of state government.
    • All local authorities – municipalities, panchayats, district boards, improvement trusts, etc.
    • All other statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.
  • State has been defined in a wider sense so as to include all its agencies.
  • It is the actions of aforesaid agencies that can be challenged in the courts as violating the Fundamental Rights.
  • The Supreme Court asserted that, even a private body or an agency working as an instrument of the State falls within the meaning of the ‘State’ under Art. 12.

 

WHY DEFINING STATE IS IMPORTANT?
  • Ordinary laws are sufficient enough to protect infringement of rights by individuals.
  • But since state is granted with unlimited powers and authority, Individuals need constitutional protection from the acts of the state itself.
  • For providing this protection, first it needs to be clearly defined what comes under the definition of state.
  • Though state has been defined under Art. 12 in clear words, most of the controversies arise due to its 4th category i.e. other authorities.
  • Inclusion of an organisation in the definition of state would make it amenable to the writ jurisdiction of the Supreme Court under Art. 32.

 

IS BCCI A STATE OR NOT?
  • Zee Telefilms v. Union of India case judgment held that BCCI cannot be called a State under Art. 12 of The Constitution as it is not created by a statute, not dominated by government either financially, functionally or administratively.

 

WHETHER JUDICIARY A STATE OR NOT?
  • In Rupa Ashok Hurra v. Ashok Hurra (2002), the Apex Court reaffirmed and ruled that no judicial proceeding could be said to violate any of the Fundamental rights and superior courts of justice did not fall within the ambit of ‘state’ or ‘other authorities’ under Art. 12.
  • In the landmark case of Naresh Shridhar Mirajkar V State of Maharashtra, it was said that only administrative functions of the court can be termed as a state but not the judicial functions.

 

‘STATE’ ARTICLE 12 AND ‘PUBLIC AUTHORITIES’ UNDER RTI ACT
  • Under RTI act, “Public authority” is defined in Section 2(h).
  • 12 of the constitution define the term ‘State’. The definition of public authority is much wider compared to the definition of state given in the RTI act.
  • The definition of Public authorities that comes under the ambit of RTI includes
    any authority or body or institution of self- government established or constituted –
    1. by or under the Constitution;
    2. by any other law made by Parliament;
    3. by any other law made by state legislature;
    4. by notification issued or order made by the appropriate Government, and includes any –
      1. body owned, controlled or substantially financed;
      2. non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government;

 

DEFINITION OF PUBLIC AUTHORITY UNDER RTI ACT, 2005
  • Government may not have any statutory control over the NGOs, as such, still it can be established that a particular NGO has been substantially financed directly or indirectly by the funds provided by the appropriate government, in such an event, that organisation will fall within the scope of Section 2(h)(d)(ii) of the RTI Act (definition of public authority) – Supreme Court judgement 2013
  • Consequently, even private organisations which are, though not owned or controlled but substantially financed by the appropriate government will also fall within the definition of public authority.

 

UNITED NATIONS (UN) NOT A STATE – DELHI HC JUDGEMENT

CONTEXT

  • The Delhi High Court in Sanjaya Bahel v. Union of India has ruled that the United Nations is not a “State” within the meaning of Art. 12 of the Constitution of India and is not amenable to the jurisdiction of the Court under Art. 226 of the Constitution of India.
  • In Hindustan Engineering & General Mazdoor Union Vs. Union of India, 2001 court had held that “By no stretch of imagination an organisation of United Nations which is an international body be treated as “instrumentality” and or an “agency” of the Government.”

 

EXPLANATION

  • Petitioner, who was an employee with United Nations Organization was charged with misconduct and suspended from duty without pay for 3 months.
  • According to Art. 12 of the Constitution of India, the term ‘State’ denotes –
    • the union and state governments,
    • the Parliament and state legislatures
    • all local or other authorities within the territory of India or under the control of the Indian government.
  • The government has also stated that the consent of the Government of India is not required to initiate a legal suit against UNO as it is not a foreign state and is only an Internal Organization.
  • The Section 86 of Civil Procedure Code, 1908 provides that a foreign State may be sued in any Court with the consent of the Central government.
  • The Ministry of External Affairs replied that the consent of the Government of India is not required to initiate a legal suit against UNO as it is not a foreign state and is only an Internal Organization.
UNO and its officials enjoy immunity under the United Nations (Privileges and Immunities) Act, 1947.

As per the act, UNO has immunity from every form of legal process except inso far as in any particular case it has expressly waived its immunity.

 

 

LAWS INCONSISTENT WITH FUNDAMENTAL RIGHTS – Art -13
  • 13 – All laws that are inconsistent with or in derogation of any of the fundamental rights shall be void.
  • This article expressively provides for the doctrine of judicial review.
  • This power has been conferred on the SC (Art – 32) and the HC (Art – 226) that can declare a law unconstitutional and invalid on the ground of contravention of any of the Fundamental Rights.
  • The term ‘law’ in Art – 13 has been given a wide connotation so as to include the following:
    • Permanent laws enacted by the Parliament or the state legislatures;
    • Temporary laws like ordinances issued by the president or the state governors;
    • Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-law, rule, regulation or notification;
    • Non-legislative sources of law, that is, custom or usage having the force of law.
  • Not only legislation but any of the above can be challenged in the courts as violating a Fundamental Right and hence, can be declared as void.

 

AMENDABILITY OF FUNDAMENTAL RIGHTS
  • Issue of amendability boils down to interpretation of the term “law” under the ambit of meaning 13.
  • From Shankari prasad case to Sajjan Singh case 1965, the court held that the term “law”, does not include constitutional amendment. This implies that the fundamental rights are amendable.
  • In Golakhnath case of 1967 (6:5 majority), the Supreme Court reversed its earlier position and held that FR are not amendable.
  • Following above rulings, parliament in response enacted 24th CAA 1971, added Art. 13(4) and Art. 368(3).
  • 24th CAA 1971 challenged in Kesavananda Bharti case of 1973. Court endorsed that all parts of the constitution are amendable except the part and elements that constitutes basic structure of the constitution.
  • However, court does not delineate what actually constitutes the basic structure of constitution.
  • Generally, that all parts are component of basic structure without which the constitution would lose its identity and its very essenc

 

SUMMARY OF FUNDAMENTAL RIGHTS
ARTICLEDESCRIPTION
 

 

Right to equality (Art. 14 to 18)

 

 

a)       Equality before law and equal protection of laws (Article 14).

b)      Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Article 15).

c)       Equality of opportunity in matters of public employment (Article 16).

d)      Abolition of untouchability and prohibition of its practice (Article 17).

e)       Abolition of titles except military and academic (Article 18)

 

Right to freedom (Articles 19–22)

 

a)       Protection of six rights regarding freedom of: (i) speech and expression, (ii) assembly, (iii) association, (iv) movement, (v) residence, and (vi) profession (Article 19).

b)      Protection in respect of conviction for offences (Article 20).

c)       Protection of life and personal liberty (Article 21).
Right to elementary education (Article 21A).

d)      Protection against arrest and detention in certain cases (Article 22).

Right against exploitation (Articles 23–24)a)       Prohibition of traffic in human beings and forced labour (Article 23).

b)      Prohibition of employment of children in factories, etc. (Article 24).

 

Right to freedom of religion (Article 25–28)

a)       Freedom of conscience and free profession, practice and propagation of religion (Article 25).

b)      Freedom to manage religious affairs (Article 26).

c)       Freedom from payment of taxes for promotion of any religion (Article 27).

d)      Freedom from attending religious instruction or worship in certain educational institutions (Article 28).

Cultural and educational rights (Articles 29–30)a)       Protection of language, script and culture of minorities (Article 29).

b)      Right of minorities to establish and administer educational institutions (Article 30).

Right to constitutional remedies (Article 32)a)       Right to move the Supreme Court for the enforcement of fundamental rights including the writs of (i) habeas corpus, (ii) mandamus, (iii) prohibition, (iv) certiorari, and (v) quo warranto (Article 32).

 

 

 

FUNDAMNETAL RIGHTS – FOR INDIANS viz a viz FOREIGNERS
 FR available only to citizens of india and not to foreignersFR available to both citizens of india and foreigners (Except enemy aliens)
1.Art. 15 – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.Art. 14 – Equality before law and equal protection of laws
2.Art. 16 – Equality of opportunity in matters of public employment. Art. 20 – Protection in respect of conviction for offences.
3.Art. 19 – Protection of six rights regarding freedom of : (i) speech and expression, (ii) assembly, (iii) association, (iv) movement, (v) residence, and (vi) profession.Art. 21 – Protection of life and personal liberty.

Art. 21A – Right to elementary education.

4.Art. 29 – Protection of language, script and culture of minorities.Art. 22 – Protection against arrest and detention in certain cases
5.Art. 30 – Right of minorities to establish and administer educational institutions.Art. 23 – Prohibition of traffic in human beings and forced labour

 

6.Art. 24 – Prohibition of employment of children in factories etc.
7.Art. 25 – Freedom of conscience and free profession, practice and propagation of religion.
8.Art. 26 – Freedom to manage religious affairs.
9.Art. 27 – Freedom from payment of taxes for promotion of any religion
10.Art. 28 – Freedom from attending religious instruction or worship in certain educational institutions

 

 

 

FUNDAMNETAL RIGHTS IN CONSTITUTION
RIGHT TO EQUALITY (Art. 14 – 18)
  1. Equality before Law and Equal Protection of Laws (Art – 14)
 

 

Meaning

·         Art. 14 – “State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.

·         This provision confers rights on all persons whether citizens or foreigners.

·         Phrase ‘person’ – includes legal persons, viz, statutory corporations, companies, registered societies or any other type of legal person.

·         Both of them aim at establishing equality of legal status, opportunity and justice.

·         Art. 14 forbids class legislation, it permits reasonable classification of persons, objects and transactions by the law.

·         ‘Rule of Law’ as in Art. 14 is a part of ‘basic structure’ of the constitution.

 

 

 

 

Explanation

Equality before law

·         British origin concept (negative concept)

·         the absence of any special privileges in favour of any person.

·         the equal subjection of all persons to the ordinary law of the land administered by ordinary law courts.

·         no person (whether rich or poor, high or low, official or non-official) is above the law.

Equal protection of the law

·         Inspired from American constitution (Positive concept)

·         The equality of treatment under equal circumstances, both in the privileges conferred and liabilities imposed by the laws.

·         The similar application of the same laws to all persons who are similarly situated.

·         The like should be treated alike without any discrimination.

 

 

 

 

Rule of Law

 

·         Concept of “Rule of Law” is propounded by A.V. Dicey.

·         It is Absence of arbitrary power – No man can be punished except for a breach of law (applicable to the Indian System).

·         The equal subjection of all persons to the ordinary law of the land administered by ordinary law courts (applicable to the Indian System).

·         The primacy of the rights of the individual – The constitution is the result of the rights of the individual as defined and enforced by the courts of law rather than the constitution being the source of the individual rights. In the Indian System, the constitution is the source of the individual rights.

 

 

 

Exceptions

·         The President of India and the Governor of States enjoy following immunities (Art. 361)  –

(i)                 The President or the Governor is not answerable to any court the exercise and performance of the powers and duties of office.

(ii)               No criminal proceedings shall be instituted or continued against the President or the Governor in any court during his term of office.

 

(iii)             No process for the arrest or imprisonment of the President or Governor shall be issued from any court during his term of office

(iv)              No civil proceedings against the President or the Governor be instituted during his term of office in any court in respect of act done by him in his personal capacity, whether before or he entered upon his office, until the expiration of two months after notice has been delivered to him.

·         No person shall be liable to any civil or criminal proceedings in any court in respect of the publication in a newspaper of a substantially true report of any proceedings of either House of Parliament or either House of the Legislature of a State (Art. 361-A).

·         No MP/ member of the Legislature shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament/ Legislature or any committee thereof (Art. 105 and Art. 194 respectively).

·         Art. 31-C is an exception to Art. 14. The SC held that “where Article 31-C comes in, Article 14 goes out”.

·         The foreign sovereigns, ambassadors and diplomats enjoy immunity from criminal and civil proceedings (Vienna convention 1961)

·         The UNO and its agencies enjoy the diplomatic immunity.

 

Meaning of Art. 31-C is an exception to Art. 14 – It provides that the laws made by the state for implementing the Directive Principles contained in clause (b) or clause (c) of Article 39 cannot be challenged on the ground that they are violative of Article 14. The Supreme Court held that “where Article 31-C comes in, Article 14 goes out”.

Art. 39 (b) says –The State shall direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to serve the common good.

Art. 39 (c) says –The state shall direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.

 

 

ARTICLE 31 C IN BRIEF
  • Article 31C, was inserted by the 25th Amendment Act of 1971, contained the following two provisions:
    1. No law that seeks to implement the socialistic directive principles specified in 39(b) or (c) shall be void on the ground of contravention of the fundamental rights conferred by Art. 14 (equality before law and equal protection of laws) or Art. 19 (protection of six rights in respect of speech, assembly, movement, etc.)
    2. No law containing a declaration that it is for giving effect to such policy shall be questioned in any court on the ground that it does not give effect to such a policy.
  • In the Kesavananda Bharati case (1973), the SC declared the above second provision of Art. 31C as unconstitutional and invalid on the ground that judicial review is a basic feature of the Constitution. The first provision of Art. 31C was held to be constitutional and valid.
The ‘doctrine of reasonable classification’ states that any state action can stand the test of Article 14 even when it differentiates people but such differentiation has to stand the test of reasonability.

 

 

INDIAN YOUNG LAWYERS ASSOCIATION VS STATE OF KERALA – SABARIMALA

LEGAL ISSUES INVOLVED

  • Should women be allowed entry to the Sabarimala temple in Kerala?
  • Whether the exclusionary practice which is based on a biological factor exclusive to the female gender amounts to ‘discrimination’ and thereby violates the very core of Art. 14, 15 and 17 and not protected by ‘morality’ as used in Art. 25 and 26 of the Constitution?
  • Whether the practice of excluding such women constitutes an ‘essential religious practice’ under Art. 25.
  • Whether a religious institution can assert a claim in that regard under the umbrella of the right to manage its own affairs in the matters of religion?

 

JUDGEMENT

  • The devotees of Lord Ayyappa are Hindus and do not constitute a separate religious denomination.
  • The notions of public order, morality and health cannot be used as colorable device to restrict the freedom to freely practice religion and discriminate against women of the age group of 10 to 50 years by denying their right to enter and offer their prayers at the Sabarimala temple for the simple reason that public morality must yield to constitutional morality.
  • The equality doctrine enshrined under Art. 14 do not override the Fundamental Right guaranteed by 25 to every individual to freely profess practice and propagate their faith, in accordance with the tenets of their religion.

 

IMPACT OF THE JUDGEMENT

  • The judgment upheld the women’s right to profess practice and propagate religion.
  • The judgment reaffirms the Constitution’s transformative character and derives strength from the centrality it accords to fundamental rights.

 

CITIZENSHIP AMENDMENT ACT (CAA)

Government in its defence of providing citizenship to the 6 migrated non-Muslim minorities from neighbouring countries has put forward its rationale that —

  • Under Art. 14, a legislature is entitled to make reasonable classification for purposes of legislation and treat all in one class on equal footing.
  • Act encompasses the “positive concept of equality” that entails “equality of treatment in equal circumstances”.

 

 

PROVISIONS IN THE INDIAN CONSTITUTION ENSURING EQUAL PROTECTION OF LAWS
  • The preamble of the Constitution secures to its citizen, social, economic and political justice.
  • 14 of the Constitution make it clear that the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India.
  • 38 and 39, of the Constitution of India lay down clear mandate in this regard. According to Art. 38 (1), the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic or political, shall inform all the institutions of the national life.
  • 39-A directs the State to ensure that the operation of the legal system promotes justice on a basis of equal opportunity and shall, in particular, provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

 

 

  1. Prohibition of Discrimination on Certain Grounds (Art – 15)
 

 

 

Meaning

·         Art. 15 (1) – The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth (discrimination on other grounds is not prohibited). This prohibits discrimination only by the State.

·         Art. 15 (2) – No citizen shall be subjected to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex, or place of birth with regard to access to shops, public restaurants, hotels, use of wells, tanks, bathing ghats, road and places of public resort maintained wholly or partly by State funds or dedicated to the use of general public.

·         This provision prohibits discrimination both by the State and private individuals.

 

·         From article 15(3) onwards, the constitution starts protective discrimination.

·         Art. 15(3) empower the state to make special provisions for women and children.

·         Art. 15(4) empower the state to make special provisions for advancement of socially and educationally backwards or SC/STs.

·         Art. 15(5) goes one step further and empowers the state to make reservation in admission into education institutions including private schools or colleges whether or not aided by government

·         Thus, article 15(3) and 15(4) are foundational bricks of reservation in the country.

·         Only minority educational institutions (such as Madarsas) have been left out of this provision.

 

 

 

 

 

Exceptions

1.       The state is permitted to make any special provision for women and children.

2.       The state is permitted to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the SC and ST.

3.       The state is empowered to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the SC or ST regarding their admission to educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions. (Added by 93rd Amendment Act of 2005 – providing 27 % quota to OBCs)

4.       The state is empowered to make any special provision for the advancement of any economically weaker sections of citizens. Further, the state is allowed to make a provision for the reservation of up to 10% (in addition to the existing) of seats for such sections in admission to educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions. (Added by 103 amendment act 2019 – 10% quota for EWS)

 

 

LEGISLATIVE AND EXECUTIVE EXAMPLES OF ARTICLE 15
  • 10 percent reservation for economically weaker section of the society.
  • 27 percent reservation to Other Backward Classes subject to non-creamy layer.
  • Reservation for women in educational institutions.
  • 15 percent reservation to Scheduled Class (SC) in education.
  • 5 percent reservation for Scheduled Tribes (ST) in education.

 

RESERVSTION FOR ECONOMICALLY WEAKER SECTION (EWS)

CONTEXT – The central government recently told the SC that state governments were free to decide whether to implement the 10% reservation for the economically backward in jobs and admissions.

About reservation for EWS –

  • The 103rd CAA 2019 inserted Art.15 (6) and 16 (6) in the Constitution to allow reservation for the EWS among the general category.
  • 15 has been amended to enable the government to take special measures for the advancement of EWS.
  • Up to 10% of seats may be reserved for such sections for admission in educational institutions. Such reservation will not apply to minority educational institutions.
  • The newly added Art. 16(6) permit the government to reserve up to 10% of all government posts for the EWS of citizens.
  • 10% reservation for the EWS will be in addition to the existing reservation cap of 50% reservation for SC, ST and OBCs.
  • Centre has no role in deciding the reservation policy of a state government.
  • State governments are free to decide whether to implement the 10% quota for EWS in state government jobs and admissions to state government educational institutions.

 

      3. Equality of Opportunity in Public Employment (Art – 16)

 

 

Meaning

·         Art. 16 – Provides for equality of opportunity for all citizens in matters of employment or appointment to any office under the State.

·         No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds of only religion, race, caste, sex, descent, place of birth or residence. 

 

 

 

 

Exceptions

a.       Parliament can prescribe residence as a condition for certain employment or appointment in a state or union territory or local authority or other authority. Presently, there is no such provision for any state except Andhra Pradesh and Telangana.

b.       The State can provide for reservation of appointments or posts in favour of any backward class that is not adequately represented in the state services.

c.       A law can provide that the incumbent of an office related to religious or denominational institution or a member of its governing body should belong to the particular religion or denomination.

d.       The state is permitted to make a provision for the reservation of up to 10% of appointments or posts in favour of any EWS of citizens. For this purpose, the EWS would be notified by the state from time to time on the basis of family income and other indicators of economic disadvantage.

 

 

 

 

Mandal commission and SC judgement (1992)

·         In 1979, the Morarji Desai Government appointed the Second Backward Classes Commission under the chairmanship of B.P. Mandal.

·         Art. 340 – Commission to investigate the conditions of the socially and educationally backward classes and suggest measures for their advancement.

·         The Mandal commission estimated OBC population nearly 52% component of the population and recommended 27% reservation for OBC in government job so that the total reservation for all amounts to 50%.

·         In 1990 that the V.P. Singh Government declared reservation of 27% government jobs for the OBCs.

·         In Mandal case (1992), the scope and extent of Art. 16(4) examined thoroughly by the Supreme Court and it upheld the constitutional validity of 27% reservation for the OBCs with certain conditions –

a.       The creamy layer among the OBCs should be excluded from the list of beneficiaries of reservation.

b.       No reservation in promotions. Reservation should be confined to initial appointments only.

c.       The total reserved quota should not exceexd 50% except in some extraordinary situations. This rule should be applied every year.

d.       The ‘carry forward rule’ in case of backlog vacancies is valid. But it should not violate 50% rule.

e.       A permanent statutory body should be established to examine complaints of over-inclusion and under-inclusion in the list of OBCs

 

 

 

 

 

 

 

 

Response of govt. to the ruling of Supreme Court

a.       Ram Nandan Committee was appointed to identify the creamy layer among the OBCs. It submitted its report in 1993, which was accepted.

b.       National Commission for Backward Classes was established in 1993 by an act of Parliament to examine the complaints of under-inclusion, over-inclusion or non-inclusion of any class of citizens in the list of backward classes for the purpose of job reservation. 102nd Amendment Act of 2018 conferred a constitutional status on the commission with insertion of new Article 338-B.

c.       By 77th Amendment Act 1995, a new provision added in Art. 16 that empowers the State to provide for reservation in promotions of any services under the State in favour of the SCs and STs that are not adequately represented in the state services.

d.       The 85th Amendment Act of 2001 provides for ‘consequential seniority’ in the case of promotion by virtue of rule of reservation for the government servants belonging to the SCs and STs with retrospective effect from June 1995.

e.       81st Amendment Act of 2000, added another new provision in Art. 16 that empowers the State to consider the unfilled reserved vacancies of a year as a separate class of vacancies to be filled up in any succeeding year or years. In brief, it ends the 50% ceiling on reservation in backlog vacancies.

f.        76th Amendment Act of 1994 has placed the Tamil Nadu Reservations Act of 1994 in the Ninth Schedule to protect it from judicial review as it provided for 69 per cent of reservation, far exceeding the 50 per cent ceiling.

 

 

The first Backward Classes Commission was appointed in 1953 under the chairmanship of Kaka Kalelkar. It submitted its report in 1955.

 

Consequential Seniority means elevation to a senior position consequential to circumstances, and not through normal rules.

 

Concept of Creamy Layer

  • The concept has its genesis in the Indira Sawhney Case (1992).
  • SC asked the Government to define the criteria by fixation of income, property or status.
  • Presently, creamy layer criteria is applicable to OBCs in reservation.
  • At present, Group A and Group B officers of both Central and State Government, Employees of Armed Forces and PSUs along with people earning more than 8 lakh per annum come under the purview of Creamy layer.

 

 

 

JOB RESERVATIONS, PROMOTIONS QUOTAS NOT A FUNDAMENTAL RIGHT

CONTEXT – The Supreme Court ruled that there is no fundamental right to reservations in appointments and promotions under Art.16(4) and 16(4A) of the Constitution.

The Supreme Court observed – 

  • 16 (4) and 16 (4-A) are in the nature of enabling provisions, vesting a discretion on the State Government to consider providing reservations, if the circumstances so warrant.
  • 16(4) à Empowers state to make any provision for reservation of appointments in favour of any backward class which in opinion of the State, is not adequately represented in the services under State.
  • 16(4A) à Empowers state to make provisions for reservation in matters of promotion to SC/ST employees.
  • It is settled law that the state cannot be directed to give reservations for appointment in public posts.
  • The order further adds that the state is not bound to make a reservation for SCs and STs in matters of promotions

M. Nagaraj Vs Union of India Case (2006)

The Supreme Court upheld the constitutional validity of reservations for SCs and STs to include promotions with three conditions:

  • quantifiable data on the backwardness of SC and ST
  • the facts about their inadequate representation
  • The overall administrative efficiency is not affected.

 

AFFIRMATIVE ACTIONS
  • Set of anti-discriminatory measures intended to provide access to preferred position in society for group that would otherwise be excluded or under represented.
  • Underlying idea is to change social composition of elite position.
  • In 1902, Shahu IV (Ruler in Maharashtra), undertook first organise step to provide reservation to backward class in India.
  • In 1931, Hutton (Census commissioner) drawn up first list of Scheduled Caste in 1936, on basis of two criteria
    • Temple entry restrictions
    • Pollution by touch or proximity
  • Balaji vs state of Mysore Case – Laid down 50% criteria for reservation.

 

ARGUMENTS IN FAVOUR OF AFFIRMATIVE ACTIONS
  • Historic injustice (also applied in America for racial minorities)
  • Caste system is not merely division of labours but the division of labourers.
  • Labour market dualism– all things being equal, labour market outcome is different for SC/STs.
  • Untouchability is still prevalent, it has various manifestations such as honour killings, denied houses on rent, ban on entry into kitchen inter alia.
  • Class and caste distinction tend to coincide and this generate deadly mix of social seclusion coupled with poverty.
  • Normal process of development does not automatically close the gap between marginalised and dominant social groups.
  • Most of polluting and manual scavenging work is done by Dalits and lower castes.

 

ARGUMENTS AGAINST AFFIRMATIVE ACTIONS
  • It replaces one form of discrimination with other.
  • It perpetuates caste discrimination and generates sense of hostility.
  • Quota policy compromises merit and efficiency of an administration.
  • It benefits the creamy layer and economically well off
  • Mismatch hypothesis – quota places backward classes in situation where they cannot perform.
  • Quota compromises productivity of an administration.
  • Caste is medieval notion. Therefore quota should be based on class.

 

 

NEED FOR QUOTA PLUS POLICY IN INDIA
  • Quotas primarily have benefitted urban backward class. Thus effective policies required to address the concerns of rural backward.
  • Limits of quota based affirmative actions are yet to be reached and positive aspect cannot be ignored.
  • Exploring possibility of affirmative actions in private sector through indirect tools such as Diversity Index (As in USA) and trying up government contracts and concessions to best performers in Diversity Index.
  • Government visualises granting quota and affirmative actions as end in itself. Thus quota policies should be complimented by remedial teaching. Once this starts accruing results, quota policy could gradually phase out.

 

4.Abolition of Untouchability (Art – 17)
 

 

 

Meaning

·         Art. 17Abolishes “untouchability” and forbids its practice in any form.

·         The phrase “untouchability” has not been defined either in the Constitution or in the Act.

·         Mysore High Court – The subject matter of Art. 17 is not untouchability in its literal or grammatical sense but the ‘practice as it had developed historically in the country’.

·         It refers to the social disabilities imposed on certain classes of persons by reason of their birth in certain castes.

·         It does not cover social boycott of a few individuals or their exclusion from religious services, etc.

 

 

Explanation

·         Untouchability (Offences) Act, 1955 has been comprehensively amended in 1976, and renamed as the Protection of Civil Rights Act, 1955 to enlarge the scope and make penal provisions more stringent.

·         The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law.

·         Supreme Court – The right under Art. 17 is available against private individuals and it is the constitutional obligation of the State to take necessary action to ensure that this right is not violated.

 

 

 

 

EXAMPLES OF IMPLEMENTATION OF ARTICLE 17
  • Protection of Civil Rights Act, 1955 and
  • Relevant provisions of Indian Penal Code 1860 and CrPC.
  • Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 & Rules, 1995.
  • Prohibition of Employment as Manual Scavengers and their Rehabilitation Act in 2013 which seeks to enforce the Fundamental Right of manual scavengers against untouchability read together with Art. 14, 19 and 21.

 

MODERN MANIFESTATIONS OF ATROCITIES AGAINST DALITS
  • Majority of the latrines are clean by manual scavengers.
  • Khap panchayat still persist in some states, for instance Haryana and Punjab.
  • Rental housing still prohibited and refused to members of certain communities in some localities.
  • Crimes and violence against members of scheduled caste and tribes is aggravating in urban pockets.
  • If we study rural morphology of India, the housing of members of the Scheduled caste are still on fringes of rural areas without basic amenities such as potable water and electricity.

 

MODERN MANIFESTATIONS OF ATROCITIES AGAINST DALITS
  • Cow vigilantism – The term “Cow vigilantism” is used to describe the lawlessness happening under the name of Cow protection. Dalits and Muslims are at the receiving end of this vigilantism. Since Dalits are concentrated in the occupation of leather making from hides of the cow, they are invariably targeted by vigilantes. Cow vigilantism has increased since past two years.
  • Honour killing – In a society like India, where caste structures are still dominant in the form of endogamy, honour killings are prevalent on a wide scale. Dalits are almost always at the receiving end of the violence. In Lata Singh vs. the State of UP, Supreme Court has opined that inter-caste marriages are in the national interest as they destroy the caste system. Bhagwan Dass v. Delhideemed honour killings in the “rarest of rare” category of crimes that deserve the death penalty.
  • Discrimination in universities – The suicide of Rohit Vemula in Hyderabad 2016.
  • Social boycott
    • Khap panchayat – caste panchayat often acts as an arena for perpetuating atrocities against Dalits by ostracizing them from the society.
    • Ambedkarhad recognized the atrocities meting out to Dalits in the form of social boycott. He had often fought against the practice – Mahad Satyagraha for the opening of community tanks for Dalits. He proposed an anti-boycott law
    • Maharashtra enacted a law against a social boycott: Maharashtra Prohibition of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016.
  • Caste clashes – Post-1990 reforms, there was resurgence among Dalits due to Reservation policy led to the emergence of the middle class among Dalits who spearheaded Dalit movements. Urbanization and other opportunities followed by 1990 reforms lead to improvement in Dalits life. This resurgence was met with violent clashes among upper castes/OBCs and Dalits. But Dalits were at the receiving end of almost all these atrocities like
    • Khairlanji massacre in Maharashtra 2008
    • Bhima-Koregaon violence in Maharashtra 2017
    • Una violence

 

GOVERNMENT ACTIONS AGAINST ATROCITIES

Indian Constitution

  • Article 17seeks to abolish ‘untouchability’.
  • Article 46–  promote the educational and economic interests of SCs, STs, and other weaker sections of the society and to protect them from social injustice and exploitation
  • Article 338– National Commission for Scheduled Castes
  • Article 338-A – National Commission for Scheduled Tribes

 

State Actions

  • Schedules listing the castes and tribes recognized as deserving of special treatment because of the massive discrimination practised against them. This was drawn up in colonial times as 1935 act introduced Scheduled caste and Scheduled tribe categories. After Independence, the same policies have been continued and many new ones added.
  • Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and Rules, 1995
  • Thorat committee 2007 – first ever committee constituted to study caste discrimination in higher education sector. HRD ministry fails to implement Thorat committee recommendations.
  • Protection of the civil rights act 1955

 

SC/ST PREVENTION OF ATROCITIES ACT (POA ACT 1989)
  • Article 17 seeks to abolish ‘untouchability’ –
    • Untouchability (Offences) Act 1955 was enacted.
    • The lacuna in the above act lead to the passing ofProtection of Civil Rights Act 1976
  • Normal provisions of the existing laws: Protection of Civil Rights Act, Indian Penal Code were inadequate to check many dimensions of atrocities meted to SC/ST. This lead to Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and Rules, 1995.

The provisions of SC/ST Act can be divided into three categories:-

  1. Provisions of criminal law –
    • Creation of new types of offences not in the Indian Penal Code (IPC) or in the Protection of Civil Rights Act 1955 (PCRA).
    • Atrocities can be committed only by non-SCs and non-STs on members of the SC or ST communities. Crimes among SCs and STs or between STs and SCs do not come under the purview of this Act.
    • Defines various types of atrocities against SCs/STs and prescribes stringent punishments for the same.
    • Enhanced minimum punishment for public servants.
    • Punishment for neglect of duties by a public servant(Section 4)
    • Cancellation of arms licenses in the areas identified where an atrocity may take place or has taken place and grant arms licenses to SCs and STs
    • Denial of anticipatory bail (Section 18) provided in Section 438 of the CrPC
    • Denial of probation to convict (Section 19).
  1. Provisions for relief and compensation for victims.
  2. Provisions that establish special authorities for the implementation and monitoring of the Act.
    • Creation of Special Courts and special public prosecutor 
    • Mandatory, periodic monitoring system at District, State and National level
    • Identification of atrocity prone areas 

 

 

SUBHASH KASHINATH MAHAJAN VS THE STATE OF MAHARASHTRA – REVIEW OF SC/ST PREVENTION OF ATROCITIES ACT
  • Supreme Court opined that SC/ST Prevention of Atrocities Act (PoA act) is being misused and checks are needed to prevent such misuse.
  • The act has become a tool to persecute innocents and public servants for political and personal gains.
  • Provided guidelines for preventing the misuse of the act.
  • Preliminary inquiry at the level of DSP is required to verify the authenticity of the case before registering FIR.
  • A person can be released on anticipatory bailunless a prima facie case of crimes or atrocities is made out.
  • No FIR should be registered against government servants without the approval of the appointing authority.
  • PoA act had to be interpreted in a manner which will ensure that “casteism is not perpetuated”through the implementation of the law.

 

INSTITUTIONAL MECHANISMS FOR IMPLEMENTATION & MONITORING OF THE PROTECTION OF CIVIL RIGHTS ACT, 1955.
  • Legal Aid: Section 15A(2)(i) of the Protection of Civil Rights Act, 1955, provides for adequate facilities, including legal aid to the persons subjected to any disability arising out of ‘untouchability’ to enable them to avail themselves of such important rights.
  • Special Courts: Section 15A(2)(iii) of the Protection of Civil Rights Act, 1955, provides for setting up of special courts for trial of offences under the Act.
  • Committees at appropriate levels : Section 15A(2)(ii) of the Protection of Civil Rights Act, 1955, provides for setting up of Committees at such appropriate levels as the State Governments may think fit.
  • Special Police Stations
  • Incentive for inter-caste marriages

 

  1. Abolition of Titles (Art – 18)
 

Meaning

·         It prohibits the state from conferring any title (except a military or academic distinction) on anybody, whether a citizen or a foreigner.

·         It prohibits a citizen of India from accepting any title from any foreign state.

 

 

 

 

 

Explanation

·         The hereditary titles of nobility like Maharaja, Raj Bahadur, Rai Bahadur, Rai Saheb, Dewan Bahadur, etc, which were conferred by colonial States are banned by Art. 18 as these are against the principle of equal status of all.

·         In 1996 , the Supreme Court upheld the constitutional validity of the National Awards–Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Sri.

·         SC ruled that these awards do not amount to ‘titles’ within the meaning of Art. 18 that prohibits only hereditary titles of nobility.

·         They are not violative of Art. 18 as the theory of equality does not mandate that merit should not be recognised.

·         SC also ruled that they should not be used as suffixes or prefixes to the names of awardees. Otherwise, they should forfeit the awards.

·         These National Awards were instituted in 1954.

·         The Janata Party government headed by Morarji Desai discontinued them in 1977. But they were again revived in 1980 by the Indira Gandhi government.

 

Conditions

·         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.

·         No citizen or foreigner holding any office of profit or trust under the State is to accept any present, emolument or office from or under any foreign State without the consent of the president.

 

 

RIGHT TO FREEDOM (Art. 19 – 22)
  1. Protection of Six Rights under Art. 19
    1. Right to freedom of speech and expression.
    2. Right to assemble peaceably and without arms.
    3. Right to form associations or unions or co-operative societies.
    4. Right to move freely throughout the territory of India.
    5. Right to reside and settle in any part of the territory of India.
    6. Right to practice any profession or to carry on any occupation, trade or business.
  • In original text of the constitution, Art. 19 contained seven rights.
  • 44th Amendment Act (1978) – The right to acquire, hold and dispose of property (Art. 31) was deleted and inserted in Art. 300A as constitutional right.
  • Six rights under Art. 19 are protected against only state action and not private individuals. These rights are available only to the citizens not to foreigners or legal persons like companies or corporations, etc.
  • The State is empowered to impose “reasonable” restrictions on the enjoyment of these six rights only on the grounds mentioned in the Art. 19 itself and not on any other grounds

 

1.1 Freedom of Speech and Expression – Art. 19 (a)

 

Meaning

·         Every citizen has the right to express his views, opinions, belief and convictions freely by word of mouth, writing, printing, picturing or in any other manner.

·         The SC held that the freedom of speech and expression includes the following:

a.       Right to propagate one’s views as well as views of others.

b.       Freedom of the press.

c.       Freedom of commercial advertisements.

d.       Right against tapping of telephonic conversation.

e.       Right to telecast, government has no monopoly on electronic media.

f.        Right against bundh called by a political party or organisation.

g.       Right to know about government activities.

h.       Freedom of silence.

i.        Right against imposition of pre-censorship on a newspaper.

j.        Right to demonstration or picketing but not right to strike.

 

 

State can impose reasonable restrictions on the grounds of:

·         Sovereignty and integrity of India

·         Security of the state

·         Friendly relations with foreign states

·         Public order

·         Decency or morality

·         Contempt of court

·         Defamation

·         Incitement to an offence

 

 

SEDITION – Section 124A of IPC

Context – Recently, a lower court in Bihar directed the filing of an FIR under section 124A (Sedition) of IPC against 49 eminent persons who signed an open letter to the Prime Minister of India expressing concerns over mob lynching.

HISTORICAL BACKGROUND

  • Sedition laws were enacted in 17th century Englandwhen lawmakers believed that only good opinions of the government should survive, as bad opinions were detrimental to the government and monarchy.
  • This sentiment (and law) was borrowed and inserted into the Section 124A of IPC in 1870, by the British.
  • British used Sedition law to convict and sentence freedom fighters. It was first used to prosecute Bal Gangadhar Tilak in 1897.
  • Mahatma Gandhi, too, was later tried for sedition for his articles in Young India.
  • The Constituent Assemblydebated to include sedition as a ground for restricting free speech. However, this was successfully opposed for fear that it would be used to crush political dissent.
  • The Supreme Court highlighted these debates in 1950 in its decisions in Brij Bhushan v the State of Delhi and Romesh Thappar v. the State of Madras.
  • In these cases, the court held that a law which restricted speech on the ground that it would disturb public order was unconstitutional.
  • It also held that disturbing the public order will mean nothing less than endangering the foundations of the State or threatening its overthrow.
  • These decisions prompted the First Constitution Amendment, where Article 19(2) was rewritten to replace “undermining the security of the State” with “in the interest of public order”.

 

RELEVANCE OF SEDITION LAW

  • Freedom of speech often poses difficult questions, like the extent to which the State can regulate individual conduct.
  • Since an individual‘s autonomy is the foundation of this freedom; any restriction on it is subject to great scrutiny.
  • The constitution of India prescribes reasonable restrictions that can always be imposed on this right in order to ensure its responsible exercise and to ensure that it is equally available to all citizens.
  • These restrictions are mentioned under Article 19(2)of the Constitution of India –
    • interests of the sovereignty and integrity of India
    • the security of the State
    • friendly relations with foreign States
    • public order, decency or morality or in relation to contempt of court,
    • Defamation or incitement to an offence.
  • Sedition law helps the government to curb secessionist movement and other atrocity

 

WHY SECTION 124A SHOULD BE REPEALED?

  • Sedition leads to a sort of unauthorised self-censorship, for it produces a chilling effect on free speech and encroachment over Art. 19(1)(a).
  • It suppresses what every citizen ought to do in a democracy — raise questions, debate, disagree and challenge the government’s decisions.
  • “Dissent is safety valve of democracy”. If dissent is not allowed, then pressure cooker may burst – Supreme court (Justice D.Y. Chandrachud)
  • Sedition systematically destroys the soul of Gandhi’s philosophy that is, right to dissent.
  • Jawaharlal Nehru, in Parliament, clarified that the related penal provision of Section 124A was “highly objectionable and obnoxious and the sooner we get rid of it the better”.
  • Even the UK, where the law originated, has already repealed it.

 

WAY FORWARD

  • The higher judiciary should use its supervisory powers to sensitize the magistracy and police to the constitutional provisions protecting free speech.
  • The definition of sedition should be narrowed down, to include only the issues pertaining to the territorial integrity of India as well as the sovereignty of the country.
  • Civil society and NGOs must take the lead to raise awareness about the arbitrary use of Sedition law.

 

SHREYA SINGHAL JUDGEMENT – SECTION 66A OF INFORMATION TECH  ACT 2000
  • The IT Act was amended in 2009 to insert a new section, Section 66A, which was said to address cases of cybercrime with the advent of Information and Communication Technology (ICT) and the Internet.

 

SUPREME COURT JUDGEMENT
  • In 2015, the Supreme Court struck down Section 66A of the IT Act as unconstitutional on the grounds of violating Art. 19(1)(a) of the Constitution of India which grants freedom of speech and expression.
  • The Supreme Court delivered a judgement striking down Section 66A of the IT Act, 2000, in Shreya Singhal vs. Union of India, terming it “vague” and “unconstitutional,” because it put restrictions not sanctioned by the Constitution.
  • The court was of the view that only reasonable restrictions can be imposed as contained under Art. 19(2).
  • The Supreme Court said, it encroaches upon “the public’s right to know”.
  • In the judgment, the court said the liberty of thought and expression was a cardinal value of paramount significance under the Constitution.

 

PROVISIONS IN SECTION 66A
  • The IT Act, 2000 provides for legal recognition for transactions through electronic communication, also known as e-commerce.
  • The Act also penalizes various forms of cybercrime.
  • Information Technology Act 2000 addressed the following issues:
    1. Legal recognition of electronic documents.
    2. Legal recognition of digital signatures à Question came on this point in CSE2019
    3. Offenses and contraventions.
    4. Justice dispensation systems for cybercrimes.
    5. Section 10A of Information Technology Act, 2000 (amended in 2008) it also validates E-contracts.

 

WHY 66A IS CONTRAVERSIAL A SECTION ?

  • Section 66(A) of the Act criminalizes the sending of offensive messages through a computer or other communication devices.
  • Under section 66A, any person who by means of a computer or communication device sends any information that is:
    1. grossly offensive
    2. false and meant for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will;
    3. meant to deceive or mislead the recipient about the origin of such messages, etc., shall be punishable with imprisonment up to three years and with fine.

  

1.2 Freedom of Assembly – Art. 19 (b)

 

 

Meaning

·         Every citizen has the right to assemble peaceably and without arms.

·         It includes the right to hold public meetings, demonstrations and take out processions.

·         This freedom can be exercised only on public land.

·         This provision does not protect violent, disorderly, riotous assemblies, or one that causes breach of public peace or one that involves arms.

·         This right does not include the right to strike.

Reasonable restrictions·         Sovereignty and integrity of India

·         Public order (including the maintenance of traffic in the area concerned)

 

Section 144 of CrPC

·         Under Section 144 of CrPC, a magistrate can restrain an assembly, meeting or procession if there is a risk of obstruction, annoyance or danger to human life, health or safety or a disturbance of the public tranquillity or a riot or any affray.

·         Under Section 141 of the IPC, as assembly of five or more persons becomes unlawful if the object is

a.       to resist the execution of any law or legal process

b.       to forcibly occupy the property of some person

c.       to commit any mischief or criminal trespass

d.       to force some person to do an illegal act

e.       to threaten the government or its officials on exercising lawful powers

 

 

Section 153A of IPC – Promoting enmity between various groups.

Section 153B of IPC – Making assertions that are enmical to National interest.

 

Book and publications

Section 95 of CrPC – government can declare certain publications to be forfeited if they relate to defamation, promoting enmity, publication of obscene material inter alia.

 

1.3 Freedom of Association – Art. 19 (c)

 

 

Meaning

·         All citizens have the right to form associations or unions or co- operative societies (Added by 97th CAA 2011)

·         It includes the right to form political parties, companies, partnership firms, societies, clubs, organisations, trade unions or any body of persons.

·         It includes the right to start an association or union and to continue with the association or union as such.

·         It covers the negative right of not to form or join an association or union.

 

Reasonable restrictions

Subject to following restrictions, the citizens have complete liberty to form associations or unions for pursuing lawful objectives and purposes.

Sovereignty and integrity of India

Public order

Morality

 

SC observations

·         The trade unions have no guaranteed right to effective bargaining or right to strike or right to declare a lock- out.

·         The right to strike can be controlled by an appropriate industrial law.

·         The right to obtain recognition of the association is not a fundamental right.

 

Section 295A – deliberate act intended to outrage the religious feelings of any class by insulting its religion or religious beliefs.

Section 292A – Publication of obscene material.

 

1.4 Freedom of Movement – Art. 19 (d)

 

 

 

Meaning

·         This freedom entitles every citizen to move freely throughout the territory of the country.

·         Citizen can move freely from one state to another or from one place to another within a state.

·         This right underline the idea that India is one unit so far as the citizens are concerned and intended to promote national feeling and not parochialism.

·         The freedom of movement has two dimensions –

a.       Internal (right to move inside the country) à Art. 19 protects only this dimension.

b.       External (right to move out of the country and right to come back to the country) à This dimension is dealt by Art. 21 (Right to life & personal liberty.)

 

 

Reasonable restrictions

 

·         The interests of general public

·         The protection of interests of any scheduled tribe.

·         The outsiders entry in tribal areas is restricted to protect the distinctive culture, language, customs and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation.

 

SC observations

·         The freedom of movement of prostitutes can be restricted on the ground of public health and in the interest of public morals.

·         The Bombay HC validated the restrictions on the movement of persons affected by AIDS.

 

  • Inner line permit (ILP)
  • An Inner Line Permit is a document that allows an Indian citizen to visit or stay in a state that is protected under the ILP system.
  • ILP originated in Bengal Eastern Frontier Regulations, 1873 – It prohibited “British subjects” or Indians from entering into these protected areas.
  • After Independence, in 1950, the word “British subjects” was replaced by “Citizens of India”.
  • The ILP is obligatory for all those who reside outside the protected states.
  • It can be issued for travel purposes solely.
  • An ILP is issued by the state government concerned
  • Presently, the ILP is operational in à Arunachal Pradesh, Mizoram and Nagaland – AMiN

 

1.5 Freedom of Residence – Art. 19 (e)

 

 

 

Meaning

·         Every citizen has the right to reside and settle in any part of the territory of the country.

·         This right has two parts:

a.       the right to reside in any part of the country.

b.       the right to settle in any part of the country.

·         This right is intended to remove internal barriers within the country or between any of its parts.

·         This promotes nationalism and avoids narrow mindedness.

·         The right to residence and the right to movement are overlapping to some extent. Both are complementary to each other.

 

Reasonable restrictions

 

·         The interest of general public

·         The protection of interests of any scheduled tribes.

·         The right of outsiders to reside and settle in tribal areas is restricted to protect the distinctive culture, language, customs and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation.

·         In many parts of the country, the tribal have been permitted to regulate their property rights in accordance with their customary rules and laws.

SC observations·         Certain areas can be banned for certain kinds of persons like prostitutes and habitual offenders.

 

1.6 Freedom of Profession – Art. 19 (f)

 

Meaning

·         All citizens are given the right to practise any profession or to carry on any occupation, trade or business.

·         This right is very wide as it covers all the means of earning one’s livelihood.

Reasonable restrictions·         In the interest of the general public
 

 

 

State is empowered to:

 

a.       Prescribe professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business.

b.       Carry on by itself any trade, business, industry or service whether to the exclusion (complete or partial) of citizens or otherwise

·         No objection can be made when the State carries on a trade, business, industry or service either as a monopoly (complete or partial) to the exclusion of citizens (all or some only) or in competition with any citizen.

·         The State is not required to justify its monopoly.

·         This right does not include the right to carry on a profession or business or trade or occupation that is immoral (trafficking in women or children) or dangerous (harmful drugs or explosives, etc,).

·         The State can absolutely prohibit these or regulate them through licencing.

 

TEST FOR DETERMINING REASONABLENESS OF RESTRICTION WITHIN THE MEANING OF ART.19
  • The test of reasonableness as laid down by Sastri C.J. in Madras v. V.G. Row has generally been accepted as correct.

For adjudging reasonableness of a restriction, the courts consider such factors as:

  • the nature of right alleged to have been infringed,
  • the underlying purpose of the restrictions imposed,
  • the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition,
  • The prevailing conditions at the time.

 

 

CRIMINAL DEFAMATION CASE
  • In a most recent case, Supreme Court ordered the release of journalist Prashant Kanojia, who was arrested by UP police under criminal defamation law.
  • SC also held that this arrest was violation of rights and freedom provided under Art. 21 and 19.

 

Criminal defamation law

  • Section 499 and 500 of IPC deals with the offence of criminal defamation.
  • Section 499 defines what activities constitute to criminal defamation.
  • Section 500 provides for the punishment for this offence.
    Supreme Court’s judgment.
  • 19(2) provide, freedom of speech is not an absolute right, and certain reasonable restrictions can be enforced upon it. Defamation is one of the restrictions provided.
  • Term ‘reasonable’ here requires striking a balance between rights and restrictions.

 

CONSTITUTIONALITY OF CRIMINAL DEFAMATION
  • This question was answered by the Supreme Court in the case of Subramaniam Swamy versus the Union of India.
  • In this case Supreme Court has ruled “the provisions are valid and do not violate the Constitution and right to freedom of speech and expression is not an absolute right”.
  • A person’s right to freedom of speech has to be balanced with the other person’s right to reputation.”

 

RAFAEL CASE
  • In a recent case against the newspaper Supreme Court held that Publication of Rafael documents by The Hindu is part of the newspaper’s fundamental right to freedom of speech.
  • The court referred to its past judgment in Romesh Thappar and Brij Bhushan, both of which had held that there could not be any kind of restriction on the freedom of speech and expression other than those mentioned in Article 19(2).

 

RIGHT TO INFORMATION
  • This right as provided by RTI act, 2005 is the codification of important fundamental right under Art. 19 in the case State of U.P. v Raj Narain SC held that the Right to Information is implicit in the right to freedom of speech and expression explicitly guaranteed in Article 19 of the Indian Constitution.

 

INDIAN MEDIA AND FUNDAMENTAL RIGHTS

In Romesh Thappar vs State of Madras, the Supreme Court of India held that the freedom of speech and expression includes freedom to propagate ideas which is ensured by freedom of circulation of a publication, as publication is of little value without circulation.

ROLE OF MEDIA

  • Its civic forum – parliament of citizens
  • Its watchdog which strengthened the democratic setup of india.
  • Higher level of media freedom are critical to democratic outcomes.
  • Media is an agenda setter
  • A slight adversarial relationship between state and media is not just inevitable, but highly desirable.

 

ISSUES IN MEDIA

  • India has higher news publications.
  • Violence against journalist.
  • Issue of fake news – E.g. Muzzafarnagar riots, GPS tracking nanochip in 2000 Rupee notes.
  • Issue of state gagging.
  • Concentration of media houses by large corporate houses.
  • Biased news reporting and policy of non-questioning to ruling government.
  • Degrading ethical and moral standards – issue of paid news
  • Failure in ensuring accountability by government.
  • Media often portray non-issues as real issues, while the real issues are side-lined.
  • Tendency to brand particular social groups – e.g. Muslim communities in case of bomb blasts.
  • Issues of media trial as it explicitly violates Right to privacy. It also obstructs and prejudices matter pending before court of law.

 

MEDIA CORRUPTION AND ISSUE OF PAID NEWS

  • Increasing reliance on advertisements revenues leads to ruthless quest for TRPs.
  • Commodification and objectification of the news.
  • Focus on
  • Gotcha journalism.
  • The Chinese wall between marketing and editorial department is manifesting cracks.
  • Fixations with breaking news, exclusives.
  • Yellow journalism – content designed to appeal lowest common denominator of the society.
  • Concept of private treaty – corporate houses paying media houses in equity as opposed to cash.
  • Crossholdings – media houses having in stake in corporate houses and vice-versa.
  • Poor self-regulation by media.
  • Poor and substandard quality of journalism.

 

ISSUES IN MEDIA TRIAL

  • Media acts as kangaroo court and khap panchayats.
  • Media solely acts as judge, jury and executor.
  • Violation of fundamental Right to privacy.
  • Affects right to reputation.
  • Amounting to Contempt of court and obstructs the free and fair trial by court of law.
  • Media trial prejudices matter pending before court of law

 

PRESS COUNCIL OF INDIA (PCI)

  • Statutory authority by Press Council Of India Act 1978.
  • Chairperson – Sitting or retired judge of Supreme Court.
  • Majority of the members are drawn from press.
  • PCI reconstituted after every 3 years.
  • It covers and limited to only print media.
  • Ideally it should be “Media Council of India” – which would cover Audio-visual media as well.
  • PCI entertains the complaints from citizens on violating media ethics and from newspaper w.r.t. freedom of press.
  • PCI can issue advisories, reprimand or can blacklist papers on its website.

 

PRINT MEDIA

  • FDI norm should be increase to develop print media holistically.
  • Conservative attitude attributed to policy frame 65 years back in 1955, on recommendation of 1st press commission which invoked logic of national interest.
  • Today FDI is allowed in most of the critical sectors.
  • Print media, in particular has enduring monopolies which limits consumer choice and suppress competition.
  • Newspapers prices in india are one of the lowest in the world.
  • Expertise from international brands would help to improve standard and content.
  • India have thousands of publications yet the annual turnover of whole print industry does not crosses 1 billion USD mark.

Issue with media regulations

  • Presently, media is self-regulated which proves by and large ineffective
  • Self-regulation may not effective all the time.
  • State regulation may curb independence and freedom of media.
  • Best course of regulation for media is external regulation minus state.

 

SUPREME COURT ON “REASONABLE RESTRICTIONS

  • There cannot be formula/test that can be applicable in all circumstances.
  • Reasonableness also depends upon prevailing conditions of the time.
  • Restrictions must not arbitrary and go beyond
  • Reasonableness must be tested upon both substantive and procedural grounds.

 

THREATS TO FREEDOM OF EXPRESSION
  • Colonial and archaic laws
  • Corrupt enforcement machinery
  • Insensitive political class
  • Weaknesses of judiciary
  • Complicity and weakness of publisher and media houses.

 

  1. Protection in Respect of Conviction for Offences (Art – 20)
 

Meaning

·         Art. 20 grants protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal person like a company or a corporation.
 

 

 

 

Provisions

a.       No ex-post-facto law à No person shall be –

(i)                 Convicted of any offence except for violation of a law in force at the time of the commission of the act, nor

(ii)               Subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the act.

b.       No double jeopardy à No person shall be prosecuted and punished for the same offence more than once.

c.       No self-incrimination à No person accused of any offence shall be compelled to be a witness against himself.

 

 

 

 

 

Explanation

·         An ex-post-facto law is one that imposes penalties retrospectively (retroactively), upon acts already done or which increases the penalties for such acts.

·         The enactment of such a law is prohibited by the first provision of Art. 20. This limitation is imposed only on criminal laws and not on civil laws or tax laws. A civil liability or a tax can be imposed retrospectively.

·         This provision prohibits only conviction or sentence under an ex-post-facto criminal law and not the trial thereof.

·         The protection (immunity) under this provision cannot be claimed in case of preventive detention or demanding security from a person.

·         The protection against double jeopardy is available only in proceedings before a court of law or a judicial tribunal and not available in proceedings before departmental or administrative authorities as they are not of judicial nature.

·         The protection against self-incrimination extends to both oral evidence and documentary evidence. However, it does not extend to –

1.     Compulsory production of material objects.

2.     Compulsion to give thumb impression, specimen signature, blood specimens.

3.     Compulsory exhibition of the body.

·         It extends only to criminal proceedings and not to civil proceedings or proceedings which are not of criminal nature.

 

  1. Protection of Life and Personal Liberty (Art – 21 )
 

Meaning

·         Art. 21 declares that no person shall be deprived of his life or personal liberty except according to ‘procedure established by law’.

·         This right is available to both citizens and non-citizens.

 

 

 

 

 

 

Supreme court’s observation

1.       Gopalan case (1950)

·         SC has taken a narrow interpretation of the Art. 21.

·         It held that the protection under Art. 21 is available only against arbitrary executive action and not from arbitrary legislative action.

·         This is because of the expression ‘procedure established by law’ in Art.21

 

2.       Maneka Gandhi case (1978)

·         SC overruled its judgement in the Gopalan case by taking a wider interpretation of the Art. 21.

·         Ruled that the right to life and personal liberty of a person can be deprived by a law provided the procedure prescribed by that law is reasonable, fair and just.

·         It has introduced the American expression ‘due process of law’

·         Protection under Art. 21 should be available not only against arbitrary executive action but also against arbitrary legislative action.

·         The ‘right to life’ as embodied in Art. 21 includes within its ambit the right to live with human dignity and all those aspects of life which go to make a man’s life meaningful, complete and worth living.

·         It also ruled that the expression ‘Personal Liberty’ in Art. 21 is of the widest amplitude and it covers a variety of rights that go to constitute the personal liberties of a man.

 

Some Rights under Art. 21

·         Right to decent environment including pollution free water and air and protection against hazardous industries.

·         Right to privacy.

·         Right to free legal aid.

·         Right to speedy trial.

·         Right against delayed execution.

·         Right to emergency medical aid.

·         Right to fair trial.

·         Right of women to be treated with decency and dignity.

·         Right to sleep

·         Right to freedom from noise pollution

·         Right to sustainable development

·         Right against public hanging.

 

AMPLITUDE OF RIGHT TO LIFE
  • 21 has received the widest possible interpretations. Largely negative sounding provision has been given a positive spin by the apex court thus casting on state a certain positive obligation.
  • 21 thus has become a big canopy under which several rights have found growth, shelter and nourishment.

 

MANEKA GANDHI VS UNION OF INDIA JUDGEMENT 1978
LEGEL ISSUES INVOLVED
  1. What is the scope of Article 21 (right to life and personal liberty)?
  2. Should not any procedure established by law under Art. 21 be ‘fair, just and reasonable’ and not ‘fanciful, oppressive or arbitrary’?
  3. Whether the right to go abroad is part of personal liberty?

Maneka Gandhi case established the interrelationship between Art. 14 and Art. 19.

 

 

ARGUMENTS BY PETITIONER
  • The right to go abroad is part of ‘personal liberty’ within the meaning of that expression as used in Art. 21 and no one can be deprived of this right except according to the procedure prescribed by law. There is no procedure prescribed by the Passport Act for impounding or revoking a passport.
  • The Act does not provide for giving an opportunity to the holder of the passport to be heard against the making of the order – contravention of the rules of natural justice

 

JUDGEMENT
  • The Supreme Court held that, though Art. 21 mentions the ‘procedure established by law’, it has to be fair, just and reasonable, not oppressive or arbitrary. The mere prescription of some kind of procedure cannot even meet the mandate of Art. 21.
  • The court gave Art. 21 an expansive interpretation. The Court held that ‘the expression “personal liberty” in Art. 21 is of the widest amplitude and covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental, rights and given additional protection under Art.19(1).’
  • The court overruled the A. K. Gopalan judgment, which held that ‘certain Articles in the Constitution exclusively deal with specific matters and where the requirements of an Article dealing with the particular matter in question are satisfied and there is no infringement of the fundamental right guaranteed by that Article, no recourse can be had to a fundamental right conferred by another Article.
  • The Court held that there is a unique relationship between the provisions of Article 14, Article 19 and Article 21. Therefore, a law depriving a person of ‘personal liberty’ has not only to stand the test of Article 21, but it must also stand the test of Article 19 and Article 14 of the Constitution.

 

IMPACT OF THE JUDGEMENT
  • Maneka Gandhi case gave the term ‘personal liberty’ the widest possible interpretation.
  • Supreme Court expanded the scope of Article 21, which now includes, among other rights, Right to Clean Air, Right to Food, Right to Clean Environment and more.
  • The judgment made India a true welfare state, as enshrined in the preamble to the Constitution.

 

EUTHANASIA

Euthanasia is mercy killing of person who is suffering crippling impairment.

 Arguments in favourArguments against
1.It would end individual sufferingMay slow down the research on crippling illnesses.
2.It is already in practice informally.It may abuse in case of involuntary euthanasia.
3.Cost of keeping patient on life support is prohibitive.Leaves no room for miracle and last option of trial and error.
4.Opportunity cost of hospital bed dedicated to the purpose.Violation of hypocritic oath of doctors.
Aruna Shanbaug judgement – 2011

The apex court allowed positive euthanasia for individual on the grounds of Permanent vegetative State of patient.

Each request shall be decided by a two judges bench of the HC after receiving the opinion of panel of the three doctors.

 

UNDERTRIALS
  • Undertrial prisoners are those who are not yet convicted of the charge(s) for which they have been detained, and are presumed innocent in law.
  • Primary constitutional and moral concern with undertrial detention is that it violates the principle that there should be no punishment before a finding of guilt by due process.
  • There are more than 2.7 lakh undertrials (More than 67 per cent) in prison, constituting more than two-thirds of prison population in India while 1,942 children also live in the prisons along with their mothers – NCRB report 2016
  • Global average is 32%.

 

FACTORS RESPONSIBLE FOR HIGH MAGNITUDE OF UNDERTRIALS
  • Overburdened police force – 131 police per lakh of population. (UN norm – 222/ lakh peoples.)
  • Politically motivated arrest.
  • Poor standards of prosecution and shortage of prosecutors.
  • Weak socio-economic profiles of undertrials.
  • Ineffective and lethargic legal aid system.
  • Slow moving court procedures.
  • Non-implementation of Section 436A of CrPC – allows prisoner to be release on his personal surety if he has already spent half of maximum sentence for his alleged offence.
  • There is an issue with existing financial system of bail in the country. If the accused is a poor person and cannot pay the cash bail or produce a surety, he/she has to stay in prison till the trial ends.

 

MEASURES TO ADDRESS THE ISSUE OF UNDERTRIALS
  • Increasing judge–population ratio substantially – 14 judges : 1 million
  • Decriminalisation of minor offences.
  • Using the provision of arrest with greater discretion by the police.
  • Implementing the provision of the police granting bail in bailable offences.
  • Timely provision of police escorts to take undertrials to courts on their court dates.
  • Disaggregate the sub-categories within the prison population and address the issues based on the disaggregation of data.
  • Release of undertrials under Section 436 and 436A of CrPC.
  • The prison departments should create a cadre of trained social workers to work with prisoners, families of prisoners and released prisoners towards promoting their legal rights and rehabilitation.
  • Fast track courts focussed more on disposal of cases rather than on “due process”. This may be the reason for high conviction rates in fast track courts.

 

RIGHT TO PRIVACY JUDGEMENT – PUTTASWAMY CASE 2017

CONTEXT – In August 2017, a nine-judge bench of the Supreme Court in Justice K. S. Puttaswamy (Retd) Vs Union of India unanimously held that Indians have a constitutionally protected FR to privacy that is an intrinsic part of life and liberty under Art. 21.

  • Puttaswamy case dealt with the question of whether privacy is a constitutionally protected value under the Indian Constitution.

 

SC JUDGEMENT
  • The Supreme Court observed that the privacy of the individual is an essential aspect of dignity. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters.
  • SC held that privacy is a natural rightthat inheres in all natural persons, and that the right may be restricted only by state action that passes each of the three tests:
    1. Such state action must have a legislative mandate.
    2. It must be pursuing a legitimate state purpose; and
    3. It must be proportionate e., such state action — both in its nature and extent, must be necessary in a democratic society and the action ought to be the least intrusive of the available alternatives to accomplish the ends.

 

IMPORTANCE OF THE JUDGEMENT
  • By holding ‘Right to Privacy’ as a fundamental right, the court overruled its earlier judgments in M.P. Sharma case and Kharak Singh case.
  • The SC relied on this ruling to declare Section 377 of the IPC unconstitutional in Navtej Singh Johar case; decriminalise adultery in Joseph Shine case; and in Indian Young Lawyers Association case which dealt with the entry of women into the Sabarimala temple in Kerala.

 

NATIONAL SECURITY VS PRIVACY
  • Government continued to commission and execute mass surveillance programmes with little regard for necessity or proportionality, with justifications always voiced in terms of broad national security talking points – E.g. “project insight” of IT dept. , In July 2018, Ministry of Information Broadcasting had floated a tender for ‘Social Media Monitoring Hub’ to snoop digital communication.

 

DATA USE VS PRIVACY
  • The government has shunned a rights-oriented approach in the collection, storage and processing of personal data and has stuck to its ‘public good’ and ‘data is the new oil’ discourse.

 

DRAFT DATA PROTECTION BILL 2018
  • Government appointed a committee of experts for Data protection under the chairmanship of Justice B. N. Shrikrishna committee that submitted its report in July 2018 along with a Draft Data Protection Bill.
  • Report has a wide range of recommendations to strengthen privacy law in India. Its proposals included restrictions on processing and collection of data, Data Protection Authority, right to be forgotten, data localisation, explicit consent requirements for sensitive personal data, etc.

 

SECTION 497 AND ARTICLE 21
  • The law under section 497 dictates that any man who has an affair with a married woman will be punished. But it requires the consent of the husband of women involved in the affair.
  • If this affair took place with the consent of husband of the women involved, there will be no punishment. It deprived married women of their own consent and autonomy.
  • Autonomy is intrinsic in dignified human existence.
  • Section 497 denuded the woman from making choices. That is the violative of Art. 21.
  • It became one of the major reasons for quashing section 497.

 

RIGHT TO DIE AND ARTICLE 21
  • Initially, The Court held that the right to life under Art. 21 of the Constitution does not include the right to die.
  • Aruna Ramchandra Shanbaug v. Union of India – the Supreme Court held that passive euthanasia can be allowed under exceptional circumstances under the strict monitoring of the Court.
  • Common Cause Vs. Union of India – Five-judge SC Constitution Bench, judgment delivered by Chief Justice Dipak Mishra, gave legal sanction to passive euthanasia, permitting ‘living will’ by patients on withdrawing medical support if they slip into irreversible state of coma. The SC held that the right to die with dignity is a fundamental right.
  • Fundamental right to life and dignity includes right to refuse treatment and die with dignity because the fundamental right to a “meaningful existence” includes a person’s choice to die without suffering (including terminally ill).

 

VISHAKHA JUDGEMENT ON ARTICLE 21
  • Vishaka & others. v/s state of Rajasthan is a landmark judgment case in the history of sexual harassment.
  • Sexual Harassment means an uninvited/unwelcome sexual favour or sexual gestures from one gender towards the other gender.
  • The court ordered that the fundamental rights under 14, 19 and 21 of Constitution of India provides that, every profession, trade or occupation should provide safe working environment to the employees.
  • It hampered the right to life and the right to live a dignified life.

 

NAVTEJ SINGH JOHAR AND OTHERS VS UNION OF INDIA JUDGEMENT
  • Section 377 of the IPC is an act that criminalises homosexuality. It was introduced in 1861 during the British rule of India.
  • Navtej Singh Johar case partially struck down Section 377 of the Indian Penal Code (IPC).
  • It upheld the right of the LGBT community to have intimate relations with people of their choice, their inherent right to privacy and dignity and the freedom to live without fear.
  • It corrected the judicial error committed by a two-member Bench in Suresh Kumar Koushal case (2013).
  • The court referred to the Puttaswamy judgment extensively in striking down Section 377.
  • Naz Foundation judgment (2009) à the High Court of Delhi held that ‘Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Art. 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors…
  • Suresh Kumar Koushal judgment (2013) à Delhi HC judgment was overturned by a two-Judge Bench of the Supreme Court. The Bench held that ‘Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable’.
  • Navtej Singh Johar and others à filed a new writ petition (in 2016) for declaring ‘right to sexuality’, ‘right to sexual autonomy’ and ‘right to choice of a sexual partner’ to be part of the right to life guaranteed under 21 of the Constitution of India and to declare Section 377 of the IPC to be unconstitutional.
  • In NALSA case, transgenders have been recognised as a third gender apart from male and female and have been given certain rights. Yet, in view of the existence of Section 377 in the IPC, consensual activities amongst transgenders would continue to constitute an offence.

 

JUDGEMENT –
  • The Supreme Court observed that ‘Our Constitution is a living and organic document capable of expansion with the changing needs and demands of the society….’
  • After the privacy judgment in Puttaswamy case, the right to privacy has been raised to the pedestal of a fundamental right. The existence of Section 377 of the IPC abridges the fundamental rights of the LGBT community.
  • Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy willfully to another individual and their intimacy in privacy is a matter of their choice.
  • Section 377 IPC amounts to an unreasonable restriction because public decency and morality cannot be amplified beyond a rational limit and cannot be accepted as reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the LGBT community. Thus, it violates Art. 19(1)(a) of the Constitution.
  • Persons who are homosexual have a fundamental right to live with dignity, which in the larger framework of the Preamble of India will assure the cardinal constitutional value of fraternity. Hence, the court overruled the decision in Suresh Kaushal case.

 

 

  1. Right to Education (Art – 21A)
 

     Meaning

·         Art. 21 A declares that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may determine.

·         Thus, this provision makes only elementary education a Fundamental Right and not higher or professional education.

·         Provision was added by the 86th Constitutional Amendment Act of 2002.

 

 

Explanation

·         86th CAA 2002 is a major milestone in the country’s aim to achieve ‘Education for All’.

·         The government described this step as ‘the dawn of the second revolution in the chapter of citizens’ rights’.

·         Prior this amendment, the DPSP (Art. 45 in Part IV) contained a provision for free and compulsory education for children.

·         Being a directive principle, it was not enforceable by the courts. Now, there is scope for judicial intervention in this regard.

·         Amendment changed the subject matter of Art. 45 in directive principles.

·         It now reads– ‘The state shall endeavour to provide early childhood care and education for all children until they complete the age of six years.’

·         It also added a new fundamental duty under Art 51A that reads–‘It shall be the duty of every citizen of India to provide opportunities for education to his child or ward between the age of six and fourteen years’.

 

RTI act 2009

In pursuance of Art. 21A, the Parliament enacted the Right of Children to Free and Compulsory Education (RTE) Act, 2009. This Act seeks to provide :

·         Every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards.

·         This legislation is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all.

 

 

 

SC observations

·         In 1993, Supreme Court recognised a Fundamental Right to primary education in the right to life under Art. 21.

·         It held that every child or citizen of this country has a right to free education until he completes the age of 14 years.

·         Thereafter, his right to education is subject to the limits of economic capacity and development of the state.

·         Court overruled its earlier judgement (1992) which declared that there was a fundamental right to education up to any level including professional education like medicine and engineering.

 

  1. Protection Against Arrest and Detention (Art – 22)
 

 

 

 

Meaning

·         Art. 22 – grants protection to persons who are arrested or detained.

·         Detention is of two types à Punitive and Preventive.

·         Punitive detention à to punish a person for an offence committed by him after trial and conviction in a court.

·         Preventive detention à detention of a person without trial and conviction by a court. Its precautionary measure and intention is not to punish a person for a past offence but to prevent him from committing an offence in the near future.

·         Art. 22 has two parts –

1.    first part deals with the cases of ordinary law and the

2.    second part deals with the cases of preventive detention law. 

 

Cases of ordinary law

Art. 22(1)

§  Art. 22(1)This first part of Art. 22 confers the following rights on a person who is arrested or detained under an ordinary law:

(i)                 Right to be informed of the grounds of arrest.

(ii)               Right to consult and be defended by a legal practitioner.

(iii)             Right to be produced before a magistrate within 24 hour including the journey time.

(iv)              Right to be released after 24 hours unless the magistrate authorises further detention.

·         These safeguards are not available to an enemy alien or a person arrested or detained under a preventive detention law.

·         The SC ruled that the arrest and detention in the Art. 22 (1) do not cover arrest under the orders of a court, civil arrest, arrest on failure to pay the income tax, and deportation of an alien.

·         They apply only to an act of a criminal or quasi-criminal nature or some activity prejudicial to public interest.

 

 

 

 

Cases of

Preventive detention

Art. 22(2)

§  Art. 22(2)This second part of grants protection to persons who are arrested or detained under a preventive detention law.

·         This protection is available to both citizens as well as aliens.

·         The detention of a person cannot exceed three months unless advisory board reports sufficient cause for extended detention. The board is to consist of judges of a high court.

·         The 44th CAA of 1978 has reduced the period of detention without obtaining the opinion of an advisory board from three to two months, but this provision has not yet been brought into force.

·         The grounds of detention should be communicated to the detenu and the facts considered to be against the public inter need not be disclosed.

·         The detenu should be afforded an opportunity to make representation against the detention order.

·         Art. 22 also authorises the Parliament to prescribe :

(i)                 the circumstances and the classes of cases in which a person can be detained for more than three months under a preventive detention law without obtaining the opinion of an advisory board.

(ii)               the maximum period for which a person can be detained in any classes of cases under a preventive detention law.

(iii)             the procedure to be followed by an advisory board in an inquiry.

Legislative powers w.r.t detention

The Constitution has divided the legislative power with regard to preventive detention between the Parliament and the state legislatures.

·         The Parliament has exclusive authority to make a law of preventive detention for reasons connected with defence, foreign affairs and the security of India.

·         Parliament and state legislatures both can concurrently make a law of preventive detention for reasons connected with the security of a state, the maintenance of a one public order and the maintenance of supplies and services essential to the community.

·         POTA, MISA, UAPA, TADA are some laws made by the parliament.

 

 

Preventive detention laws in the world

·         Unlike india, no other democratic country in the world has made preventive detention as an integral part of the Constitution.

·         It is unknown in USA.

·         It was resorted to in Britain only during first and second world war time.

·         In India, preventive detention existed even during the British rule. E.g. the Bengal State Prisoners Regulation (1818) and the Defence of India Act (1939) provided for preventive detention.

Opinion of Jurist on preventive detention·         Jurist maintained that preventive detention is inimical to the very basic structure of constitution and democratic values.

·         It creates semi – emergency like situation without actual declaration of an emergency, something that is not maintainable under Indian constitution.

 

  • At present, no strength is prescribed for the board. And the executive government may on its own appoint people on the board who may not even be serving/retired high court judges, though they have to be “qualified” for the job.

 

 

SAFEGUARDS AGAINST THE MISUSE OF POWER OF DETENTION
  • The Every case of the preventive detention must be authorized by the law and not at the will of the executive.
  • The Preventive detention cannot extend beyond a period of the 3 months.
  • The every case of the preventive detention must be placed before an Advisory Board composed of the Judges of the High Court (or persons qualified for Judges of the High Court)
  • The case must be presented before the Advisory Board within 3 months.
  • A continued detention after 3 months must have consent of the Advisory Board.
  • The person will be given the opportunity to afford the earliest opportunity to make a representation against the preventive detention.
  • No person can be detained indefinitely.

 

 

RIGHT AGAINST EXPLOITATION (Art. 23 – 24)
  1. 1. Prohibition of Traffic in Human Beings and Forced Labour (Art – 23)
    

 

     Meaning

·         Art. 23 prohibits traffic in human beings, beggar (forced labour) and other similar forms of forced labour.

·         Any contravention of this provision shall be an punishable offence in accordance with law.

·         This right is available to both citizens and non-citizens.

·         It protects the individual from both, against the State and private persons.  

 

 

 

Explanation

·         The expression ‘traffic in human beings’ include :

1.     Selling and buying of men, women and children like goods;

2.     Immoral traffic in women and children, including prostitution;

3.     Devadasis

4.     Slavery.

·         To punish commission of above acts, the Parliament has enacted Immoral Traffic (Prevention) Act , 1956.

·         Phrase  ‘beggar’ à compulsory work without remuneration.

·         Art. 23 prohibits other ‘similar forms of forced labour’ like ‘bonded labour’.

·         Phrase ‘forced labour’ à compelling a person to work against his will. This word ‘force’ includes physical or legal force and working for less than the minimum wage.

·         Bonded Labour System (Abolition) Act, 1976; the Minimum Wages Act, 1948; the Contract Labour Act, 1970 and the Equal Remuneration Act, 1976 were made

 

Exception

·         Art. 23 permits the State to impose compulsory service for public purposes E.g. military service or social service, for which it is not bound to pay.

·         In imposing such service, the State is not permitted to make any discrimination on grounds only of religion, race, caste or class.

 

 

  • The ’Age’ is not mentioned in Article 23.
  • The constitution makers were duly aware of “Class” aspect of Exploitation but this Class aspect is missing in Art. 15 & 16.
  • Global Slavery Index 2018: – Released by Walk Free Foundation.
  • 8132 reported cases of human trafficking – NCRB data.

 

DECRIMINALISING BEGGARY
  • In India, begging was first criminalised in the 1920s, as part of a colonial logic that sought to subjugate certain communities by imputing criminality to them.
  • Beggary laws in India are a relic of the old colonial legacy. For example, according to the Criminal Tribes Act (1871), indigenous peoples were deemed criminals by birth and herded into concentration camps, where families were separated and forced labour was the norm.
  • These criminal tribes are now called denotified tribes (after independence), which forms a major section of people engaged in beggary.

 

BEGGARY LAWS IN INDIA
  • There is no central Act on beggary; however, many States and Union Territories have used certain sections of the Bombay Prevention of Beggary Act, 1959,as the basis for their own laws.
  • Through these legislations, the governments try to maintain public order, addresses forced begging or “begging rackets”, prevent annoyance to tourists.

 

ISSUES IN BEGGARY
  • Definition of Beggary -The Act defines beggary as an activity of having no visible means of subsistence, and wandering about or remaining in any public place in such condition or manner, as makes it likely that the person doing so exists by soliciting or receiving alms.
  • Unjust Process – People found “begging” can be arrested without a warrant, and after a summary procedure, thrown into “Beggars Homes” for anything between a year and three years. Also, many of these beggars homes are poorly regulated without superintendents, probation officers or doctors.
  • Violation of Fundamental Rights – Begging and homelessness are indicators of chronic poverty. Therefore, criminalising poverty violates basic human dignity. This coupled with the draconian processes under the Act, violated the right to life and personal liberty under Art. 21. Criminalising begging is violative of 19(1)(a) – freedom of speech guarantee and Art. 19(1)(d) – freedom of movement.
  • Failure of Welfare state – Beggary is a manifestation of the fact that the person has fallen through the socially created net. The government has the mandate to provide social security for everyone, to ensure that all citizens have basic facilities, and the presence of beggars is evidence that the state has not managed to provide these to all its citizens.

 

WAY FORWARD
  • The Centre made an attempt at repealing the Act through the Persons in Destitution (Protection, Care and Rehabilitation) Model Bill, 2016,with provisions including doing away with the Beggary Act and proposing rehabilitation centres for the destitute in each district.
  • Bihar government’s Mukhyamantri Bhikshavriti Nivaran Yojana is a scheme worth emulation.
    • The schemes, instead of detaining persons under the Act, open homes were set up and community outreach for destitute persons was put in place.
    • Now, rehabilitation centres have been set up, with facilities for treatment, family reintegration and vocational training.
  • The very real problem of organised begging rackets will have to be addressed by other means, perhaps based on the law of trafficking.

 

 

  1. Prohibition of Employment of Children in Factories, etc. (Art – 24)
 

Meaning

·         Art. 24 prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous activities like construction work or railway.

·         It does not prohibit their employment in any harmless or innocent work.

 

 

Explanation

·         The Child Labour (Prohibition and Regulation) Act, 1986, is an important piece of legislation in this direction.

·         Child Labour Rehabilitation Welfare Fund à In 1996, Supreme Court directed the establishment of fund for the improvement of education, health and nutrition of children.

·         The Commissions for Protection of Child Rights Act, 2005 was enacted to provide for the establishment of a National Commission and State Commissions for Protection of Child Rights and Children’s Courts for providing speedy trial of offences against children or of violation of child rights.

·         The Child Labour (Prohibition and Regulation) Amendment Act, 2016, has renamed the Principal Act as the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986.

 

PENCIL PORTAL
  • PENCIL – Platform for Effective Enforcement for No Child Labour, launched in
  • Objective:It is a separate online portal to ensure effective enforcement of the provisions of the Child Labour Act and smooth implementation of the National Child Labour Project (NCLP) Scheme.
  • Components:The PENCIL Portal (gov.in) has various components, namely Child Tracking System, Complaint Corner, State Government, National Child Labour Project and Convergence.
  • Features: The Portal connects Central Government to State Government(s), District(s), all Project Societies and the General public.
  • Further, online complaints regarding child labour can also be filed by anybody on the Pencil Portal. The complaint gets assigned to the concerned Nodal Officer automatically by the system for further necessary action.

 

CHILD LABOUR (PROHIBITION AND REGULATION) AMENDMENT ACT, 2016
  • Legislation prohibits “the engagement of the children in all the occupations and of adolescents in the hazardous occupations and the processes”.
  • The adolescents refer to those under the 18 years; the children to those under 14.
  • The list of hazardous occupations for adolescents brought down from 83 (in the original Act) to include only mining, explosives, and occupations mentioned in the Factory Act as hazardous occupations.
  • Moreover, section 3 in clause 5 allows the child labour in “the family or family enterprises” or allows the child to be “an artist in audio-visual entertainment industry”.
  • Working Hours- NOT Mentioned. It only the mention that – children may work after school hours or during vacations.
  • In 2017, India took a step forward towards commitment for a child labour free India by ratifying the two Core Conventions of International Labour Organization (ILO)
    • Convention 138– The Minimum Age Convention regarding admission of age to employment.
    • Convention 182regarding the worst forms of Child Labour.

 

 

RIGHT TO FREEDOM OF RELIGION (Art. 25 – 28)

Right to freedom of religion is considered as a hallmark of democracy. 

  1. Freedom of Conscience and Free Profession, Practice and Propagation of Religion (Art – 25)

 

 

 

 

 

 

 

 

Meaning

 

·         Art. 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion.

·         These rights are available to both – citizens as well as non- citizens.

·         The implications of these are:

a.       Freedom of conscience à Inner freedom of an individual to mould his relation with God or Creatures in whatever way he desires.

b.       Right to profess à Declaration of one’s religious beliefs and faith openly and freely.

c.       Right to practice à Performance of religious worship, rituals, ceremonies and exhibition of beliefs and ideas.

d.       Right to propagate à Transmission and dissemination of one’s religious beliefs to others or exposition of the tenets of one’s religion.

·         Right to propagate does not include a right to convert another person to one’s own religion as it would impinge on the ‘freedom of conscience’ guaranteed to all the persons alike.

·         Art. 25 covers religious beliefs (doctrines) and also religious practices (rituals) as well.

 

 

 

Exceptions

·         public order

·         morality

·         health

·         other provisions relating to fundamental rights.

·         Right to propagate does not include right to convert.

State govt. permitted to:·         Regulate or restrict any economic, financial, political or other secular activity associated with religious practice; and

·         Provide for social welfare and reform or throw open Hindu (include Sikhs, Jains and Buddhist) religious institutions of a public character to all classes and sections of Hindus.

·         Wearing and carrying of kirpans is to be included in the profession of the Sikh religion.

 

PROBLEMS IN ACHIEVING SECULARISM IN INDIA
  • Extreme religiosity at the core – Every religion carriers more or less same religious philosophy and principles. Religion largely differs at the peripherals. An exaggerated focus of peripherals breeds extreme religiosity.
  • Absence of legal and institutional framework to check communal violence and promote harmonious relation and national unity. Although NIC is there, but it proved in effective to achieve its objectives.
  • Hate propaganda is crime but it is vaguely defined and not delineated clearly.
  • Developmental divide between various social groups – In 2006, Sachar committee was appointed to investigate the status of Muslim. Committee recommended setting up of “Equal Opportunity Commission” which has not setup so far.
  • Excessive focus on singular identities like nationality and religion. The same can have implications for “Global Justice Movement”.
  • Failure of NHRC to achieve goals and objectives which statutorily mandated to it.
  • Caste and religion based vote bank politics in india – political parties misuses caste and religious beliefs for political mileage.
  • Principle institution for promoting secularism – family, social reformer, educational system – has by and large failed in inculcating democratic and secular values.
  • The idea of secularism has been conceived narrowly in india.
    • Perspective is “state centric” as like in west instead of “people centric“.
    • Objective is to prevent communal disharmony and to promote religious tolerance instead it should be the generation of scientific temper and promotion of scientific temper.

 

SOLUTIONS TO ACHIEVE INCLUSIVE SECULARISM IN INDIA
  • Rejuvenation of NIC and granting statutory or constitutional status. Ensuring regular meetings of NIC.
  • Put in place strong and deterrent Communal Violence act.
  • Amendment to RPA 1951 to improve its relevance and cover social media campaigns to curb religion based politics.
  • Long term solution involves value based education through family, schools and social reformers.

 

 

JUDICIARY AND ESSENTIAL RELIGIOUS PRACTICES
  • Judiciary carry limited knowledge to settle such disputes (E.g. Sabarimala case)
  • Practice test privileges certain practices over others by giving them legal protection.
  • Courts try to apply the certainty of law to religious questions where there is always divergence of opinion.
  • Judiciary seeks to give black and white answer, whereas nature of culture is subjective.

 

DOCTRINE OF ESSENTIAL RELIGIOUS PRACTICE
  • The doctrine of “essentiality” was invented by a seven-judge Bench of the Supreme Court in the ‘Shirur Mutt’ case in 1954.
  • The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion.
  • Essential religious practice test is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion.
  • Referring to the Ayodhya case, the Constitution Bench had ruled that, A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open.
  • Essential practice of a religion is beyond interference by the State and subject only to the restrictions on the basis of the grounds contained in Art. 25.
  • On the other hand, a non-essential religious practice is not a fundamental right and can be restricted by the State on any reasonable ground.

 

RELIGIOUS CONVERSIONS
  • Robasa Khanum vs. Khodabad Irani’s case brought into question the conduct of spouse who converted to another religion.
  • In this case court held that this kind of case has to be judged on the basis of the rules of justice equity and good conscience.
  • Court further observed that 2nd marriage of the spouse after conversion would go against the natural justice.
  • A husband has right to embrace Islam, but has no right to marry again before getting his marriage dissolved under the Hindu marriage act.
  • Thus 2nd marriage has amount to bigamy under section 494 of IPC and declared void.
According to the Court, the test for an “essential practice” was that the practice in question must “constitute the very essence of that religion, and should be such, that if permitted, it will change its fundamental character”

 

NATIONAL INTEGRATION COUNCIL (NIC)
  • Set up in June 1962 by the then PM Jawaharlal Nehru to address the problems of communalism and regionalism in India.
  • Chairperson – Prime minister
  • Members à Include union ministers, leaders of the opposition in the Lok Sabha and the Rajya Sabha, CMs of all states and UTs, leaders of national and regional political parties, chairpersons of national commissions, eminent journalists, and other public figures in India.
  • NIC is an extra-constitutional body which does not has either statutory or constitutional backing.
  • Objectives of NIC à To promote guiding principles of “idea of India” such as unity in diversity, inclusiveness, equal rights for all, philosophy of coexistence & tolerance.

 

PUNCHHI COMMISSION RECOMMENDATIONS ON NIC:

  • NIC should be given clear mandate.
  • It should formulate yearly plan of action and should be authorise to oversee its implementations.
  • Endowing constitutional or statutory status is paramount to function effectively.

 

US COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM (USCIRF)

CONTEXT – Raised concern over Citizenship (Amendment) Bill (CAB), 2019.

  • It is an autonomous statutory body (International Religious Freedom Act 1998)
  • USCIRF uses international standardsto monitor religious freedom violations globally, and makes policy recommendations to the President, the Secretary of State, and Congress.
  • USCIRF releases International Religious Freedom report annually.
  • It categorizes countries into two groups –
    • Tier I – countries of particular concerns – Pakistan, Iran, Iraq, Syria etc.
    • Tier II – where government engages in or at least tolerates communalism – India, Russia, Malaysia among others.

 

CRITICAL ANALYSIS OF ARTICLE – 25
  • Although it guarantees the freedom to follow any religion and propagate it, yet this freedom comes with a responsibility to ensure that the public order, morality and health are not compromised in the process.
  • 25 of the Constitution which confer the right to practice, preach and propagate religion are “subject to the provisions of Part III” i.e. Art. 14 (freedom of religion), 15 (rights against discrimination) and 21 (right to life and liberty).
  • This constitutional provision does not give individuals the right to conduct animal sacrifice and perform religious rituals on a busy street or public place that causes inconvenience to others.
  • Similarly, the use of loudspeakers at religious places is not guaranteed in the Art. 25.
  • Though the right to perform rituals is protected under this Article, yet the state retains the power to formulate laws to regulate “economic, financial, political” and other activities which are not directly related to a religion.
  • That’s the reason why the government controls the management of some of the Religious institutions Management Committees.

 

 

  1. Freedom to Manage Religious Affairs (Art – 26)
 

 

Meaning

As per Art. 26 – every religious denomination or any of its section shall have the following rights:

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

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

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

d.       Right to administer such property in accordance with law.

 

 

 

Conditions for religious denominations

The Supreme Court held that a religious denomination must satisfy three conditions:

a.       It should be a collection of individuals who have a system of beliefs (doctrines) which they regard as conducive to their spiritual well-being;

b.       It should have a common organisation;

c.       It should be designated by a distinctive name.

·         Under the above criteria, the SC held that the ‘Ramakrishna Mission’ and ‘Ananda Marga’ are religious denominations within the Hindu religion.

·         It also held that Aurobindo Society is not a religious denomination

 

MEANING OF RELIGIOUS DENOMINATION
  • The definition of religious denomination was clarified based on the Sri Shirur Mutt case.
  • A body to be categorised as a religious denomination, it must have a
    • Common Faith
    • Common Organisation
    • Distinctive Name;
  • Sector sub-sect of a religion are also part of Article 26 due to the existence of the word “section” in the article.
  • In both Sabarimala case and Haji Ali dargah case, the religious denominations in question were denied the rights under Art. 26(b), because their activities cannot be categorise under the definition of religious denominations for the purpose of 26(b).

 

DISTINCTION BETWEEN ART -25 AND ART -26
  • Initially it appeared that Art. 26 is not subject to the restrictions of Art. 25.
  • But in the case of Sri Venkataramana Devaruand Others. v. The State of Mysore & Others, court declared that 25(2) have wider scope of application. Moreover, Art. 26 is subject to the restrictions of Art. 25.

 

 

Art -25Art -26
Freedom of Conscience and Free Profession, Practice and Propagation of Religion.Freedom to Manage Religious Affairs.
Art. 25 guarantees rights of individuals.Art. 26 guarantees rights of religious denominations or their sections.
Art. 26 protects individualistic freedom of religionArt. 26 protects collective freedom of religion
Rights under Art. 25 are subject to public order, morality and health but not subject to other provisions relating to the Fundamental Rights.Like Art. 25, the rights under Art. 26 are also subject to public order, morality and health but not subject to other provisions relating to the Fundamental Rights.

 

DR M. ISMAIL FARUQUI Vs. UNION OF INDIA JUDGEMENT
  • Supreme Court was dealing with the question of acquisition of the religious property by the State.
  • In this case Supreme Court stated that under Art. 26 mosque, temple and churches are immovable properties and it is not an essential component of religions; thus, state can acquire immovable properties.
  • Until and unless the place has certain intrinsic value, right to worship at any and every place is not protected under constitution.
  • Court also held that the acquisition of immovable property of any religion must only be made in larger public interest under extra ordinary situations.

 

 

In Azeez Basha v. Union of India, SC Aligarh Muslim University, Muslims were denied the right to administer the university and was denied protection under Art. 26(a), pertains to university was constituted by an act, not by any Muslim denomination.

 

SABARIMALA TEMPLE ISSUE

CONTEXT – Recently, the Supreme Court has deferred its decision on review of “2018 Sabarimala verdict” until a Seven Judges’ Bench examines broader issues such as essentiality of religious practices and constitutional morality.

  • In the “Indian Young Lawyers Association & Others vs The State of Kerala & Others” case, 2018, a five-judge bench had delivered a landmark 4:1 ruling setting aside the decades- old restrictions on the entry of women of reproductive age inside Sabarimala Temple.
  • The judgment remarked that ban on the entry of women in Sabarimala is a kind of untouchability, and thus violative of Art. 17.
  • It was also concluded that the Ayyappas do not constitute as a religious domination. Thus it has no right under Art. 26 (b) to bar women entry in the temple.
  • Review pleas were filed against above order.
  • Now, the larger Bench would also consider the entry of women into mosques and the practice of female genital mutilation, prevalent among the Dawoodi Bohras Sect.

 

Karnataka High Court (HC) Judgement on Art. 25
  • It said that denial of permission to put up temporary structures on roads and footpaths for religious festivals or functions will not infringe upon the freedom granted Art. 25 (Freedom to free profession, practice and propagation of religion).

ENTRY OF WOMENS INTO SHRINES

  • Constitution guarantees the right to:
    • Individual against state
    • Individual against individual
    • Groups of individuals against state

State can restrict above rights in public interest. Interplay of above leads to constitutional conundrum and controversies.

  • Restrictions are in violation of Art. 15(2).
  • In most of shrines, they justify such practices on ground of customs. Yet, custom is not essential practice so can be interfered with.
  • 26 (b) allows all religion to manage their own affairs, whereas Art. 25(2) allows the state to intervene in religious practices for social welfare and reform.
  • The larger issue is reformation of customs which are typically biased towards men and framed in times when society was patriarchal.

 

CONSTITUTIONAL MORALITY DOCTRINE
  • The term ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution.
  • In the 2018 Sabarimala verdict, the majority opinion defined ‘morality’ in Article 25 to mean constitutional morality.
  • As per the Supreme Court, the magnitude of constitutional morality is not confined to the literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude.

 

HAJI ALI DARGAH CASE 2016
  • In the Haji Ali Dargah case in 2016, Bombay High Court was dealing with the question whether women should be allowed in the inner sanctorum of dargah or not?
  • Bombay High Court upheld the right of women to access the inner sanctum of the Haji Ali Dargah.
  • In this case the Court first invoked the “essential religious practices test” – i.e was the exclusion of women from the inner sanctum of a shrine an “essential” or “integral” part of Islam?
  • Court held that restricting entry of women in dargah is not an essential religious practice.
  • Court also held that Haji Ali Dargah Trust is not a religious denomination, thus has no right under Art. 26(b) to manage affairs in the matter of religion.

 

NIKHIL SONI V. UOI, THE RAJASTHAN HIGH COURT
  • In this case, while dealing with the validity of practice of Santhara stated that Santhara is not an essential religious practice and therefore not protected under Article 25.
  • Thus, the protection of Art.25 and Art.26 was confined to only such religious practices which were essential and integral to the religion.
  • According to the Court, the test for an “essential practice” was that the practice in question must “constitute the very essence of that religion, and should be such, that if permitted, it will change its fundamental character”.

 

TRIPLE TALAQ JUDGEMENT
  • Constitution Bench with majority dictum in Sharia Bano case held the practice of instant triple talaq (Talaq-e- Biddat) as invalid.
  • The Supreme Court, with a majority of three judges, has held “personal laws can no longer be privileged over Fundamental rights”.
  • Justice Kurian Joseph’s in this judgment was of the opinion that the practice of talaq-e-biddat is against the basic tenets of holy Quran, the very basis of Muslim Personal Law (Shariat).
  • Thus, it cannot be covered under the Essential Religious Practice of Islam and cannot be protected under Art. 25 and 26.

 

 

  1. Freedom from Taxation for Promotion of a Religion (Art. 27)
 

Meaning

·         Art. 27 – No person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination.

·         The State should not spend the public money collected by way of tax for the promotion or maintenance of any particular religion.

 

 

Explanation

·         Art. 27 prohibits the State from favouring, patronising and supporting one religion over the other.

·         This implies that the taxes can be used for the promotion or maintenance of all religions – Embodies positive notion of secularism unlike western.

·         Art. 27  prohibits only levy of a tax and not a fee. The purpose of a fee is to control secular administration of religious institutions and not to promote or maintain religion.

·         Hence, a fee can be levied on pilgrims and religious endowments to provide them some special service or safety measures and for meeting the regulation expenditure respectively.

 

ISSUE OF HAJ SUBSIDY
  • Challenging the constitutional validity of the Haj Committee Act In 2011, a landmark judgement was made in Prafull Goradia vs UOI.
  • The govt. announced that it will be scrapping Haj subsidy and instead use the funds for the empowerment of the minorities.
  • Haj subsidy – The government used to give discounted airfare (Air India) for the Haj Pilgrims. Assistance was also provided for the pilgrims to reach specially designed Haj departure airport terminals, meals, medical care and lodging were also provided.
  • Haj support to the Muslims to undertake the pilgrimage started in 1932 after the British enacted the Port Haj Committees Act.
  • The Haj Committee Act 2002 established “Haj Committee of India and State Haj Committees for making arrangements for the pilgrimage of +therewith.”
  • The petitioner said that Act violated Articles 14, 15, and 27 of the Constitution.
  • The grievance was that the petitioner in spite of being a Hindu has to pay direct and indirect taxes, part of whose proceeds go for the purpose of the Haj pilgrimage, which is only done by Muslims.
  • The bench opined that “Art. 27 would be violated if a substantial part of the entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or sales tax, or a substantial part of any other tax collected in India, were to be utilized for promotion or maintenance of any particular religion or religious denomination.
  • In other words, 25% of the entire income tax which is collected in our India was utilized for promoting or maintaining any particular religion or the religious denomination that, in our opinion, would be violative of Art. 27 of the constitution.
  • In 2017, a Central Haj Committee meeting decided to do away with the subsidy by 2018 and later, Govt. finally made the decision to scrap the subsidy stating that the funds will be used for empowering the Muslims and that Haj subsidy was an act of “minority appeasement”, which is now done away with

 

  1. Freedom from Attending Religious Instruction (Art 28)
Meaning·         Art – 28 – No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
 

 

Exception

·         This provision shall not apply to an educational institution administered by the State but established under any endowment or trust, requiring imparting of religious instruction in such institution.

·         No person shall be required to attend any religious instruction or worship attending any educational institution recognised by the State or receiving aid out of State funds without his consent. In case of a minor, the consent of his guardian is needed.

 

 

Distinction between educational institutions

(Acc. Art – 28)

Art. 28 distinguishes between four types of educational institutions:

a.     Religious instruction is completely prohibited in institutions wholly maintained by the State.

b.    Religious instruction is permitted in institutions administered by the State but established under any endowment or trust.

c.     Religious instruction is permitted on a voluntary basis in institutions recognised by the State.

d.    Religious instruction is permitted on a voluntary basis in institutions receiving aid from the State.

 

CULTURAL AND EDUCATIONAL RIGHTS (Art. 29 – 30)
Minorities at state-level

  • Recently, Supreme Court ruled that religious classification should be on all-India basis and not state-wise.
  • Constitution of India does not define “minorities”.
  • Centre, under the powers conferred by Section 2 of the National Commission for Minorities Act, 1992 can notify a community a minority community.
  1. Protection of Interests of Minorities (Art – 29)
 

 

Meaning

·         Art. 29 – Provides that any section of the citizens residing in any part of India having a distinct language, script or culture of its own, shall have the right to conserve the same.

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

 

 

Explanation

·         Art. 29(1)  – Provision protects the right of a group

·         Art. 29(2) – Provision guarantees the right of a citizen as an individual irrespective of the community to which he belongs.

·         Article 29 grants protection to both religious minorities as well as linguistic minorities.

 

 

SC observations

·         SC held that the right to conserve the language includes the right to agitate for the protection of the language.

·         SC observed that the scope of this article is not necessarily restricted to minorities only. This is because of the use of words ‘section of citizens’ in the Art. 29 that include minorities as well as majority.

·         SC also held that political speeches or promises made for the conservation of the language of a section of the citizens does not amount to corrupt practice under the Representation of the People Act, 1951.

 

JALLIKATTU ROW- CAN JALLIKATTU BE A PROTECTED ‘CULTURAL RIGHT’?
  • In February, 2018, A Supreme Court Constitutional Bench was set-up to look into Jallikattu sport of Tamil Nadu and Bullock Cart race in Maharashtra and decide whether these states can conserve their respective sports as a cultural right guaranteed by Art. 29(1).
  • While reserving the case for final judgment in the previous hearing, Chief Justice orally observed that “It has never been looked into whether a State can claim constitutional protection under the Art. 29 (1) for what it thinks is a cultural right”
  • The bench will also look into the laws- The Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act of 2017 and Prevention of Cruelty to Animals (Conduct of Jallikattu) Rules of 2017 and examine whether they promote objective of “prevention” of cruelty to animals under the Prevention of Cruelty to Animals Act of 1960 and if they conform to the basic tenets of the 1960 Act.
  • The PETA’s (People for the Ethical Treatment of Animals) contention– The 2017 Jallikattu Act and also the Rules violate the five internationally recognised freedoms — the freedom from the hunger, malnutrition and also the thirst; freedom from both the fear and the distress; freedom from physical and thermal discomfort; freedom from pain, injury and disease; and also freedom to express normal patterns of behaviour.
  • Tamil Nadu government’s stand – 80% of the population of the State supported Jallikattu and the sport had strongholds in the rural parts. Furthermore, the Justice Nariman referred to a part of the Art. 29 (1) which says “any section of the citizens residing in the territory of India”.
  • Scope of Art. 29 (1) does not necessarily confine itself to the cultural rights of minorities but may well include the majority.

 

DIFFERENTIATING BETWEEN SECULAR AND RELIGIOUS EDUCATION
  • To achieve a balance between the twin objectives of ensuring excellence in education and preserving the rights of minorities, the court divided education into two categories

 

  1. Religious education is “directly aimed at or dealing with preservation and protection of the heritage, culture, script and special characteristics of a religious or linguistic minority.” The court advocated that “maximum latitude” be given to the management to appoint teachers.
  2. Secular education: for example subjects like Arithmetic, Algebra, Physics, Chemistry or Geography, the intent must be to impart education availing the best possible teachers.
In the Kesavananda Bharati case (1973), minority rights were held to be the part of basic structure of the Constitution.

 

  1. Right of Minorities to Establish and Administer Educational Institutions (Art 30)
 

 

Meaning

·         Art. 30 grants the following rights to minorities (religious or linguistic):

a.       All minorities shall have the right to establish and administer educational institutions of their choice.

b.       The compensation amount fixed by the State for the compulsory acquisition of any property of a minority educational institution shall not restrict or abrogate the right guaranteed to them (added by the 44th Amendment Act of 1978)

c.       In granting aid, the State shall not discriminate against any educational institution managed by a minority.

·         The term ‘minority’ has not been defined anywhere in the Constitution.

 

 

 

 

Explanation

·         Protection under Art. 30 is confined only to minorities (religious or linguistic) and does not extend to any section of citizens (as under Art. 29).

·         The right under Art. 30 also includes the right of a minority to impart education to its children in its own language.

·         Minority educational institutions are of three types:

a.       Institutions that seek recognition as well as aid from the State;

b.       Institutions that seek only recognition from the State and not aid;

c.       Institutions that neither seek recognition nor aid from the State.

The institutions of (a) and (b) categories are subject to the regulatory power of the state with regard to syllabus prescription, academic standards, discipline, sanitation, employment of teaching staff and so on.

The institutions of (c) category are free to administer their affairs but subject to operation of general laws like contract law, labour law, industrial law, tax law, economic regulations etc.

 

SC observations on minority educational institution

In a Secretary of Malankara Syrian Catholic College (2007) judgement, the SC has summarized the general principles relating to establishment and administration of minority educational institutions in the following way : –

 

 

1.     The right of minorities to establish and administer educational institutions of their choice comprises the following rights :

a.       To choose its governing body in whom the founders of institution have faith and confidence to conduct and manage affairs of the institution;

b.       To appoint teaching staff and also non-teaching staff.

c.       To admit eligible students of their choice and to set up reasonable fee structure.

d.       To use its properties and assets for the benefit of the institution.

2.     The right conferred on minorities under Art. 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-a-vis the majority.

3.     There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation etc., applicable to all, will equally apply to minority institutions also.

4.     The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. Such regulations do not in any manner interfere with the right under Art. 30(1).

5.     Subject to the eligibility conditions or qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection.

6.     Extension of aid by the State, does not alter the nature and character of the minority educational institutions. The conditions can be imposed by the State to ensure proper utilization of the aid, without diluting or abridging the right under Art. 30(1).

 

 

 

NATIONAL COMMISSION FOR MINORITIES (NCM)
  • It is statutory body, set up under National Commission for Minorities Act, 1992.
  • It is a quasi-judicial body vested powers of a civil court.

 

COMPOSITION OF NCM
  • It consists of a Chairperson, a Vice Chairperson and five Members (1+1+5) to be nominated by the Central Government – all should be from Minority communities.
  • The Chairperson and every Member shall hold office for a term of three years from the date he assumes office.
  • The central government presents its report to the parliament.

 

FUNCTIONS OF NCM
  • Evaluate the progress of the development of minorities under the Union and States;
  • Monitor the working of the safeguards provided in the Constitution and in laws enacted by Parliament and the State Legislatures;
  • Make recommendations for the effective implementation of safeguards for the protection of the interests of minorities by the Central Government or the State Governments;
  • Look into specific complaints regarding deprivation of rights and safeguards of the minorities and take up such matters with the appropriate authorities;
  • Cause studies to be undertaken into problems arising out of any discrimination against minorities and recommend measures for their removal;
  • Conduct studies, research and analysis on the issues relating to socio-economic and educational development of minorities;
  • Suggest appropriate measures in respect of any minority to be undertaken by the Central Government or the State Governments;
  • Make periodical or special reports to the Central Government on any matter pertaining to minorities and in particular difficulties confronted by them.

 

 

DEFINING MINORITIES IN INDIA

CONTEXT The Supreme Court recently asked the National Commission for Minorities to take a decision on a plea seeking guidelines for defining the term ‘minority’ and for their identification State-wise.

  • The Constitution of India uses the word ‘minority’ in various articles viz. 29, 30, 350 A and 350 B.
  • Other constitutional provisions having a bearing on minority rights are 46, 51A, 25-28.
  • It recognises minorities based on religion and language.
  • Constitution neither defines the term ‘minority’ nor delineates the criteria for determining a minority.
  • As per NCM Act 1992, ‘minority’ means a community notified as such by the Central govt.
  • Six religious communities, viz; Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Parsis) and Jains have been notified as minority communities by the Union Government.
  • The six notified minorities constitute about 19% population of the country.
  • States governments are also empowered to designate state minorities and set up State Minority Commissions. For instance, Jains were designated as minority by 11 states before they were nationally recognized in 2014.

 

 

 

RIGHT TO CONSTITUTIONAL REMEDIES (Art – 32)
 

 

 

Meaning

·         Art. 32 – Confers the right to remedies for the enforcement of the FR of an aggrieved citizen.

·         The right to get the FR protected is in itself a fundamental right, it makes FR real.

·         Art. 32 is a basic feature of the Constitution, implies that it cannot be abridged or taken away even by way of an amendment to the Constitution.

·         The SC has been constituted as the defender and guarantor of the FR of the citizens.

·         SC has been vested with the original (aggrieved citizen can directly go to the Supreme Court) and wide (issuing of orders or directions but also writs of all kinds)  powers for that purpose.

 

Provisions in Art. 32

a.       The right to move the SC by appropriate proceedings for the enforcement of the FR is guaranteed.

b.       The SC shall have power to issue directions or orders or writs for the enforcement of any of the FR.

c.       Parliament can empower any other court (other than SC and HC) to issue directions, orders and writs of all kinds, without prejudice to the above powers conferred on the SC.

d.       The right to move the SC shall not be suspended except as otherwise provided for by the Constitution. However, President can suspend the right to move any court for the enforcement of the FR during a national emergency (Art 359 – Suspension of enforcement of only those rights that consist in presidential order)

 

 

 

 

 

Purpose of Art. 32

 

 

 

 

 

 

·         Art – 32 intended to provide a guaranteed, effective, expeditious, inexpensive and summary remedy for the protection of the FR.

·         Only the FR guaranteed by the Constitution can be enforced under Art. 32 and not any other right like non-fundamental constitutional rights, statutory rights, customary rights and inter alia.

·         The violation of a FR is the sine qua non (absolutely necessary) for the exercise of the right conferred by Article 32.

·         Art. 32 cannot be invoked simply to determine the constitutionality of an executive order or a legislation unless it directly infringes any of the fundamental rights.

·         Jurisdiction of the SC is original and concurrent (with the jurisdiction of the HC under Art. 226) but not exclusive for enforcement of FR.

·         Art. 226 – Vests original powers in the HC to issue directions, orders and writs of all kinds for the enforcement of the FR.

·         In case of violation of FR of a citizen, the aggrieved party has the option of moving either the HC or the SC without the way of appeal.

·         The SC has ruled that where relief through high court is available under Art. 226, the aggrieved party should first move the high court.

 

Dr. Ambedkar called Art. 32 as – “An Article without which this constitution would be a nullity. It is the very soul of the Constitution and the very heart of it”.

 

ARMED FORCES AND FUNDAMNETAL RIGHTS (Art – 33)
     

Meaning

·         Art. 33 empowers the Parliament to restrict or abrogate the FR of the members of armed forces, para-military forces, police forces, intelligence agencies and analogous forces.

·         Art. 33 is intended to ensure the proper discharge of their duties and the maintenance of discipline among them.

·         The power to make laws under Art. 33 is conferred only on Parliament and not on state legislatures.

·         Any such law made by Parliament cannot be challenged in any court on the ground of contravention of any of the fundamental rights.

 

 

 

 

Explanation

·         The expression ‘members of the armed forces’ also covers employees of the armed forces such as barbers, carpenters, mechanics, cooks, chowkidars, bootmakers, tailors who are non-combatants.

·         A parliamentary law enacted under Art. 33 can also exclude the court martial (tribunals established under the military law) from the writ jurisdiction of the SC and HC, as far as the enforcement of FR is concerned.

·         The Parliament has enacted the Army Act (1950), the Navy Act (1950), the Air Force Act (1950), the Police Forces (Restriction of Rights) Act, 1966, the Border Security Force Act inter alia.

·         These legislations impose restrictions on their freedom of speech, right to form associations, right to be members of trade unions or political associations, right to communicate with the press, right to attend public meetings or demonstrations, etc.

 

 MARTIAL LAW VIZ-A-VIZ NATIONAL EMERGENCY
MARTIAL LAWNATIONAL EMERGENCY (ART- 352)
It affects only Fundamental Rights.It affects not only Fundamental Rights but also Centre-state relations, distribution of revenues and legislative powers between centre and states and may extend the tenure of the Parliament.
It suspends the government and ordinary law courts.It continues the government and ordinary law courts.
It is imposed to restore the breakdown of law and order due to any reason.It can be imposed only on three grounds–war, external aggression or armed rebellion.
It is imposed in some specific area of the country.It is imposed either in the whole country or in any part of it.
It has no specific provision in the Constitution. It is implicit.It has specific and detailed provision in the Constitution. It is explicit.

 

MARTIAL LAW AND FUNDAMNETAL RIGHTS (Art – 34)
 

 

Meaning

·         Art. 34 – Provides for the restrictions on fundamental rights while martial law is in force in any area within the territory of India.

·         It empowers the Parliament to indemnify any government servant or any other person for any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force.

·         Martial law imply the suspension of ordinary law and the government by military tribunals.

 

 

Explanation

·         Martial law refers to a situation where civil administration is run by the military authorities according to their own rules and regulations framed outside the ordinary law.

·         It is different from the military law that is applicable to the armed forces.

·         The Parliament can also validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

·         The Act of Indemnity made by the Parliament cannot be challenged in any court on the ground of contravention of any of the FR.

 

 

 

Constitution and martial law

·         The concept of martial law has been borrowed from the English common law.

·         Expression “martial law” (military rule) has not been defined anywhere in the Constitution.

·         There is also no specific or express provision in the Constitution that authorises the executive to declare martial law.

·         It is implicit in Art. 34 under which martial law can be declared in any area within the territory of India.

·         The martial law is imposed under the extraordinary circumstances like war, invasion, insurrection, rebellion, riot or any violent resistance to law.

·         Its justification is “to repel force by force” for maintaining or restoring order in the society.

·         During the operation of martial law, the military authorities are vested with abnormal powers to take all necessary steps, impose restrictions and regulations on the rights of the civilians, can punish the civilians and even condemn them to death.

·         Armed Forces (Special Powers) Act, 1958 (AFSPA).

SC on Martial law·         The Supreme Court held that the declaration of martial law does not ipso facto result in the suspension of the writ of habeas corpus.

 

EFFECTING CERTAIN FUNDAMNETAL RIGHTS (Art – 35)
  • 35 – The power to make laws, to give effect to certain specified FR shall vest only in the Parliament and not in the state legislatures.
  • This provision ensures uniformity throughout India with regard to the nature of those FR and punishment for their infringement.

Art. 35 contains the following provisions: –

  1. The Parliament shall have (and the legislature of a state shall not have) power to make laws with respect to:-
    1. Prescribing residence as a condition for certain employments or appointments in a state or UT or local authority or other authority (Art. 16).
    2. Empowering courts other than the SC and HC to issue directions, orders and writs of all kinds for the enforcement of FR (Art. 32).
    3. Restricting or abrogating the application of FR to members of armed forces, police forces, etc. (Art. 33).
    4. Indemnifying any government servant or any other person for any act done during the operation of martial law in any area (Art. 34).
  2. Parliament shall have (and the legislature of a state shall not have) powers to make laws for prescribing punishment for those acts that are declared to be offences under the FR. These include the following: –
  3. Untouchability (Art. 17).
  4. Traffic in human beings and forced labour (Art. 23).
  5. Any law in force at the commencement of the Constitution with respect to any of the matters specified above is to continue in force until altered or repealed or amended by the Parliament.
  6. 35 extends the competence of the Parliament to make a law on the matters specified above although some of those matters may fall within the sphere of the state legislatures (State List).

 

RIGHT TO PROPERTY (Art – 300A) AND FUNDAMNETAL RIGHT
  • Since the commencement of the Constitution (1950), the FR to Property has been the most controversial of the constitution. It has caused confrontations between the Supreme Court and the Parliament on various instances – 1st, 4th, 7th, 25th, 39th, 40th and 42nd Amendments.
  • Most of the litigation centred around the obligation of the state to pay compensation for acquisition or requisition of private property.
  • In original text of the constitution, right to property was one of the seven FR under 19(1) (f) and Art. 31 in Part III of the Constitution.
  • 31 – Right against deprivation of property, whether citizen or non-citizen,
  • It provided that no person shall be deprived of his property except by authority of law.
  • It empowered the State to acquire or requisition the property of a person on two conditions:
    1. It should be for public purpose, and
    2. It should provide for payment of compensation to the owner.
  • The 44th CAA of 1978 abolished the right to property as a FR by repealing 19(1) (f) and Art. 31 from Part III.
  • 44th CAA 1978 inserted a new 300A in Part XII under the text ‘Right to Property’.
  • 300A – No person shall be deprived of his property except by authority of law. The right to property still remains a legal right or a constitutional right, but no longer a fundamental right. It is not a part of the basic structure of the Constitution.
  • The right to property as a legal right (and not FR) has the following implications: –
  1. It can be regulated i.e. curtailed, abridged or modified without constitutional amendment by an ordinary law of the Parliament.
  2. It protects private property against executive action but not against legislative action.
  3. In case of violation, the aggrieved person cannot directly move the Supreme Court under Art. 32. However, he can move the High Court under Art. 226.
  4. No guaranteed right to compensation in case of acquisition or requisition of the private property by the state.
  • Two cases where guaranteed right to compensation can be ensured and compensation has to be paid are:
  1. 30 When the State acquires the property of a minority educational institution – Added by the 44th Amendment Act (1978)
  2. 31 A – When the State acquires the land held by a person under his personal cultivation and the land is within the statutory ceiling limits – Added by the 17th Amendment Act (1964).
Art. 31A, 31B and 31C have been retained as exceptions to the fundamental rights.

 

NINTH SCHEDULE OF THE CONSTITUTION

Context – Recently there was demand to put reservation provisions for schedule caste, schedule tribe and other backward classes under 9th schedule of constitution.

 Explanation about 9th Schedule

  • 9th Schedule of the Constitution contains a list of central and state laws which cannot be challenged in courts.
  • Any act which is added under the 9th schedule gets immunity from any encroachment from judiciary even if it infringes the fundamental rights of an individual.
  • It was added with the First amendment in 1951 (PM – Jawaharlal Nehru ).
  • It was created by the new Art. 31B, which along with 31A was brought in by the government to protect laws related to agrarian reform and for abolishing the Zamindari system.
  • In IR Coelho versus State of Tamil Nadu case, Supreme Court held that laws placed in the 9th Schedule were open to judicial scrutiny.
  • SC laid down dual test to examine the validity of a law placed in the Ninth Schedule i.e. Whether it violates any fundamental right and if yes whether the violation also damages the basic structure.
  • If the answer to both the questions is in the affirmative, then only a law placed in the Ninth Schedule can be declared unconstitutional.
Under “doctrine of adverse possession”, a person who is not the original owner becomes the owner because of the fact that he has been in possession of the property for a minimum of 12-years, within which the real owner did not seek legal recourse against him.

 

FUNDAMENTAL RIGHTS AND FUNDAMENTAL DUTIES
 FUNDAMENTAL RIGHTSFUNDAMENTAL DUTIES
1.There are six fundamental rights spanning from Art. 12 – 35 in Part III.There are eleven fundamental duties consist of only one Art. 51A in Part IVA.
2.Originally incorporated in the constitution.Not part of original constitution. Incorporated by 42nd amendment act 1976.
3.FR have legal sanctions. FR are justiciable and enforceable by court of law.FD lacks legal sanctions. FD are non-justiciable. However, Parliament can enforce it with proper legislation.
4.Borrowed from USA constitution.Borrowed from USSR (Now Russia) constitution.
5.FR are rights and freedom guaranteed by constitution.Fundamental Duty is basic duty or responsibility bestowed on you as citizen of india.
6.FR are based on the privileges granted to citizen.FD is based on principle of accountability and responsibility towards nation as citizen.
7.FR exist by virtue of the fact that you are a human being.FD exist as responsibility on you as a human being.
8.FR applies to both citizens and foreigners.FD applies to citizens only.
9.FR have impact on governmentFD have impact on citizens.

 

 

FUNDAMENTAL RIGHTS AND DPSP
 FUNDAMNETAL RIGHTSDPSP
1.FR are borrowed from USA Constitution, spanning from Art.12 – 35 in Part III of the constitution.DPSP are borrowed from Irish Constitution, spanning from Art. 36 – 51 in Part IV of the constitution.
2..These are negative as they prohibit state from doing certain things.These are positive as they require state to do certain things.
3.They are justiciable, legally enforceable by courts in case of their violation.They are non-justiciable, legally non-enforceable by courts in case of their violation.
4.FRs aimed at establishing political democracy.DPSPs aimed at establishing social-economic democracy.
5.FRs have legal sanctions.DPSPs have moral and political sanctions.
6.FR promotes welfare of individual. They are personal and individualistic.DPSPs promotes welfare of community. They are societarian and socialistic.
7.FR don’t require legislation for their implementation. They are automatically enforced.DPSPs require legislation for their implementation. They are not automatically enforced.
8.The Courts are bound to declare a law violative of any of FR as unconstitutional and null and void.The Courts are cannot declare a law violative of any of DPSP as unconstitutional and null and void. However, they can uphold validity of a law on grounds that it was enacted to give effect to effect to directives.

 

 

FUNDAMENTAL RIGHTS AND HUMAN RIGHTS
PARAMETERSFUNDAMENTAL RIGHTSHUMAN RIGHTS
MeaningFR are Primary rights of citizens which are justiciable and written in constitution.HR are basic rights that all human can enjoy, no matter where they live, what they do, and how they behave etc.
IncludesBasic rights onlyBasic and absolute rights
OriginOriginated from the views of democratic society.Originated from ideas of civilized society.
ScopeCountry specificUniversal in nature
EnforcementEnforceable by court of law.Enforceable by United Nation Organisation
Guarantee Constitutionally guaranteedInternationally guaranteed
Basic principleRight of freedomRight of life with dignity

 

 

EXCEPTIONS TO FUNDAMENTAL RIGHTS
 

1. Saving of Laws Providing for Acquisition of Estates etc. (Art. 31A)

·         Art. 31A saves five categories of laws from being challenged and invalidated on the ground of contravention of the FR conferred by –

a.       Art.14 (equality before law and equal protection of laws)

b.       Art.19 (protection of six rights).

·         They are related to agricultural land reforms, industry and commerce and include the following:-

a.       Acquisition of estates and related rights by the State;

b.       Taking over the management of properties by the State;

c.       Amalgamation of corporations;

d.       Extinguishment or modification of rights of directors or shareholders of corporations; and

e.       Extinguishment or modification of mining leases.

·         Art. 31A does not immunise a state law from judicial review unless it has been reserved for the president’s consideration and has received his assent.

·         Art. 31A also provides for the payment of compensation at market value when the state acquires the land held by a person under his personal cultivation and the land is within the statutory ceiling limit.

 

 

 

2.Validation of Certain Acts and Regulations

(Art. 31B)

 

·         Art. 31B saves the acts and regulations included in the Ninth Schedule from being challenged and invalidated on the ground of contravention of any of the FR.

·         The scope of Art. 31B is wider than Art. 31A.

·         Art. 31B immunises any law included in the Ninth Schedule from all the FR whether or not the law falls under any of the five categories specified in Art. 31A.

 

Supreme Court judgement in I.R. Coelho case(2007)

·         Supreme Court ruled that as judicial review is a “basic feature” of the constitution, there could not be any blanket immunity from judicial review of laws included in the Ninth Schedule.

It said that the laws placed under the Ninth Schedule after April 24, 1973 (Kesavananda Bharati Case), are open to challenge in court if they violated FR guaranteed under Art. 14, 15, 19 and 21 or the ‘basic structure’ of the constitution.

3. Saving of Laws Giving Effect to Certain Directive Principles

 

·         Art. 31C – Inserted by the 25th Amendment Act of 1971, contained the following two provisions:

a.       No law that seeks to implement the socialistic directive principles specified in Art. 39(b) or (c) shall be void on the ground of contravention of the FR conferred by Art. 14 or Art. 19.

b.       No law containing a declaration that it is for giving effect to such policy shall be questioned in any court on the ground that it does not give effect to such a policy à SC (In Kesavananda Bharati case, 1973) declared this provision as unconstitutional and invalid as  judicial review is a basic feature of the Constitution.

 

 

SIGNIFICANCE OF FUNDAMENTAL RIGHTS
  • They constitute the bedrock of democratic system in the country.
  • They provide necessary conditions for the material and moral protection of man.
  • They serve as a formidable bulwark of individual liberty.
  • They facilitate the establishment of rule of law in the country.
  • They protect the interests of minorities and weaker sections of society.
  • They strengthen the secular fabric of the Indian State.
  • They check the absoluteness of the authority of the government.
  • They lay down the foundation stone of social equality and social justice.
  • They ensure the dignity and respect of individuals.
  • They facilitate the participation of people in the political and administrative process.
Major criticism levelled against Constitution of India is that constitution deals more with the rights of the State against the individual than with the rights of the individual against the State.

 

CRITICISM OF FUNDAMENTAL RIGHTS
  • Excessive Limitations à They are subjected to innumerable exceptions, restrictions, qualifications and explanations.
  • No inclusion of Social and Economic Rights à The list of FR is not comprehensive and inclusive as it mainly consists of political rights. Not inclusion of right to social security, right to work, right to employment, right to rest and leisure inter alia.
  • Vague and ambiguous descriptions à They are stated in a vague, indefinite and ambiguous Use of various difficult and complex phrases like ‘public order’, ‘minorities’, ‘reasonable restriction’, ‘public interest’ and so on are not clearly defined.
  • Complex and difficult language à The language used to describe them is very complicated and beyond the comprehension of the common man.
  • No Permanent in nature à They are not sacrosanct or immutable as the Parliament can curtail or abolish them. The judicially innovated “doctrine of basic structure” is the only limitation on the authority of Parliament to curtail or abolish the FR.
  • Suspension During Emergency à The suspension of their enforcement during the operation of National Emergency (Art. 352) (except Art. 20 and 21) is another weakness of the efficacy of these rights. This feature borrowed from Weimer constitution.
  • Expensive and lengthy Remedy à The judicial process is too expensive and hinders the common man from getting his rights enforced through the courts. Moreover proceeding of courts took years and years to deliver justice.
  • Preventive Detention (Art. 22) à This provision takes away the spirit and substance of the chapter on FR. It confers arbitrary powers on the State and negates individual liberty. No democratic country in the world has made preventive detention as an integral part of their Constitutions as has been made in India.
  • Inconsistent Philosophy à Chapter on FR is not the product of any philosophical principle. This creates difficulty for the Supreme Court and the high courts in interpreting the fundamental rights.
Constitution was made by the lawyers for the lawyers. The Constitution of India a ‘paradise for lawyers’ – Sir Ivor Jennings

 

RIGHTS OUTSIDE PART III
  • Rights that are outside of Fundamental Rights (Part III) are known as constitutional rights or legal rights or non-fundamental rights. They are –
    • No tax shall be levied or collected except by authority of law (Article 265 in Part XII).
    • Right to property – No person shall be deprived of his property save by authority of law ( 300-A in Part XII) (44th amendment act 1978)
    • Freedom of Trade, commerce and intercourse throughout the territory of India shall be free ( 301 in Part XIII).
  • Even though the above rights are also equally justiciable, they are different from the Fundamental Rights.
  • In case of violation of the above rights, the aggrieved person cannot avail this constitutional remedy. He can move the HC by an ordinary suit or under Art. 226 (writ jurisdiction of HC).
  • However in case of Fundamental Right, the aggrieved person can directly move the SC for its enforcement under 32 which is in itself a fundamental right.

 

 

WRITS – SCOPE AND TYPES
  • These writs are borrowed from English law as they are known as ‘prerogative writs’ in England. They were issued in the exercise of the prerogative of the King who is described as the ‘fountain of justice’. Later, the HC started issuing these writs as extraordinary remedies to uphold justice and liberties
  • The SC (Art. 32) and the HC (Art. 226) can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo-Warranto.
  • The Parliament (Art. 32) can empower any other court to issue writs. However, no such provision has been made so far.
  • Presently, only the SC and the HC can issue the writs and not any other court.
  • Prior 1950, only the HC of Calcutta, Bombay and Madras had the power to issue the writs. However, now 226 empowers all the HCs to issue the writs.

 

Writ jurisdiction of the Supreme Court Viz-a-viz High Court:

WRIT JURISDICTION OF SCWRIT JURISDICTION OF HC
SC can issue writs only for the enforcement of FR – Writ jurisdiction of the Supreme Court is narrower than HC.HC can issue writs for the enforcement of FR but also for ordinary legal right – Writ jurisdiction of the HC is broader than SC.
SC can issue writs against a person or government throughout the territory of India – Territorial jurisdiction of the SC for the purpose of issuing writs is wider than that of a HC.HC can issue writs against a person residing or against a government or authority located within its territorial jurisdiction only or outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction.
Remedy under Art. 32 is in itself a FR and hence, the SC may not refuse to exercise its writ jurisdiction.Remedy under Art. 226 is discretionary and hence, a HC may refuse to exercise its writ jurisdiction.
Art. 32 does not merely confer power on the SC as Art. 226 does on a HC, thus SC is constituted as a defender and guarantor of the fundamental rights.Art. 226 merely confer power on the HC to issue writs for the enforcement of FR or other rights as part of its general jurisdiction.

 

HABEAS CORPUS

  • Habeas corpus means “to have the body of”.
  • It is an order issued by the court to a person who has detained another person to produce the body of the latter before it.
  • The court then examines the cause and legality of detention.
  • It would set the detained person free, if the detention is found to be illegal.
  • Habeas corpus writ is a bulwark of individual liberty against arbitrary detention.
  • The writ of habeas corpus can be issued against both public authorities as well as private individuals.
  • The writ of habeas corpus cannot be issued in following cases where –
    • Detention is lawful,
    • The proceeding is for contempt of a legislature or a court,
    • Detention is by a competent court,
    • Detention is outside the jurisdiction of the court.

 

MANDAMUS

  • Mandamus stands for “we command”.
  • It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform.
  • It can also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose.
  • Unlike prohibition, mandamus that directs activity.
  • The writ of mandamus cannot be issued in following cases-
    • Against a private individual or body
    • To enforce departmental instruction that does not possess statutory force
    • When the duty is discretionary and not mandatory
    • To enforce a contractual obligation
    • Against the president of India or the state governors
    • Against the chief justice of a high court acting in judicial capacity.

 

PROHIBITION

  • Prohibition stands for  “to forbid”.
  • It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.
  • The prohibition directs inactivity. it is only preventive, and not curative.
  • The writ of prohibition can be issued only against judicial and quasi- judicial authorities.
  • It is not available against administrative authorities, legislative bodies, and private individuals or bodies.

 

CERTIORARI

  • Certiorari stands for “to be certified” or “to be informed”.
  • It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case.
  • It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law.
  • Certiorari writ is both preventive as well as curative.
  • In 1991, the Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting rights of individuals.
  • Previously, the writ of certiorari could be issued only against judicial and quasi-judicial authorities and not against administrative authorities.
  • Certiorari is not available against legislative bodies and private individuals or bodies.

 

 

QUO-WARRANTO

  • Quo-Warranto stands for  “by what authority or warrant”
  • It is issued by the court to enquire into the legality of claim of a person to a public office.
  • Objective of Quo-Warranto is to prevents illegal usurpation of public office by a person.
  • This writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution.
  • Unlike the other four writs, this can be sought by any interested person and not necessarily by the aggrieved person.
  • It cannot be issued in cases of ministerial office or private office.

 

 

RIGHT TO INTERNET RULING

CONTEXT – Recently, Supreme Court has delivered verdict on a bunch of petitions challenging the restrictions imposed on internet services and movement of people in Jammu and Kashmir.

Provisions for Internet shutdowns in India

  • Suspension of Internet services are dealt with under the IT Act 2000, the Criminal Procedure Code (CrPC) 1973 and the Telegraph Act 1885.
SUPREME COURT’S OBSERVATION
  1. On Internet shutdown
  • Freedom of speech and expression through the medium of internet is a fundamental right under Art.19(1)(a) of the Constitution.
  • The restrictions on internet have to follow the “principles of proportionality” under Art. 19(2).
    • The doctrine signifies that the punishment should not be disproportionate to the offence committed or the nature and extent of the State’s interference with the exercise of a right must be proportionate to the goal it seeks to achieve.
  • Freedom of trade and commerce through internet is also a constitutionally protected right under 19(1) (g).
  • Suspension of internet for indefinite period not permissible.

 

  1. On Section 144 of CrPC:
    • When Sec 144 is imposed for reasons of apprehended danger, that danger must be an “emergency”.
    • Powers under Sec 144 should be exercised in a reasonable and bona fide manner, and the order must state material facts in order to enable judicial review

 

OTHER JUDGEMENTS ON INTERNET AS RIGHT

In Faheema Shirin v. State of Kerala, the Kerala High Court declared the right to Internet access as a fundamental right, forming part of right to privacy under Art. 21 of the Constitution of India.

 

SECTION 144 CrPC
  • It is a colonial era law, empowers a district magistrate, a sub-divisional magistrate or any other executive magistrate empowered by the state government to issue orders to prevent and address urgent cases of apprehended danger or nuisance.
  • This usually includes restrictions on movement, carrying arms and from assembling unlawfully.
  • It is generally believed that assembly of three or more people is prohibited under Section 144.
  • However, it can be used to restrict even a single individual.
  • Order passed under Section 144 cannot remain in force for more than two months from the date of the order, unless the state government considers it necessary.
  • Even then, the total period cannot extend to more than six months.