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FUNDAMENTAL RIGHTS

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The Indian constitution contains the basic principle that every individual is entitled to enjoy certain rights as a human being and the enjoyment of such rights does not depend upon the will of any majority or minority. No majority has the right to abrogate such rights. In fact, the legitimacy of the majority to rule is derived from the existence of these rights. These rights include all the basic liberties such as freedom of speech, movement and association, equality before law and equal protection of laws, freedom of religious belief and cultural and educational freedoms. The constitution has classified these rights into seven categories and one of them is the right to constitutional remedies which entitles every aggrieved person to approach even the Supreme Court of India to restore to him any fundamental right that may have been violated. It is, thus, a basic affirmation of the Constitution that the political system that it establishes should provide conditions favourable for the maximum development of the individual's personality. The framers of the Constitution were conscious of the fact that in the absence of the enjoyment of the above mentioned rights, such development of the personality was impossible and democracy would sound an empty word. Having spent most of their lives under a foreign rule and having fought relentlessly for the enjoyment of these rights by themselves, it was only natural that they should have wanted to embody them in the Constitution they framed for the establishment of a democratic political order. They hoped to build this political order on the firm foundation of the freedom of political competition. The prime importance of these rights is that while the will of the majority decides how these freedoms are to be implemented, the existence of the freedoms themselves is not subject to that will. On the contrary, these freedoms set the conditions under which the will of the majority is to be formed and exercised. It must be stressed, however, that the fundamental freedoms guaranteed to the individual under the Constitution are not absolute. Individual rights, however, basic they are, cannot override national security and general welfare. For, in the absence of national security and general welfare, individual rights themselves are not secure. Freedom of speech does not mean freedom to abuse another; freedom of movement does not mean freedom of physical attack on others. The Constitution has made express provisions dealing with such limitations of fundamental rights so that those who seek to enjoy the rights may also realise the obligation attending them.

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The success or failure of a democracy depends largely on the extent to which civil liberties are enjoyed by the citizens in general. A democracy aims at the maximum development of the individual's personality, and the personality of the individual is inseparably bound with his liberty. Only a free society can ensure the all-round progress of its members which ultimately helps the achievement of human welfare. Thus, every democracy pays special attention to securing this bare objective to the maximum extent without, at the same time, endangering the security of the state itself. A common device that is adopted by most of them for this purpose is to incorporate a list of fundamental rights in their constitutions and guarantee them from violation by executive and legislative authorities.

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PUBLIC AND PRIVATE RIGHTS

The rights which were thus selected by the Constituent Assembly fall broadly into two categories-public and privatebut both have the same purpose in view, namely, to put an end to arbitrary rule. Among the public or political rights were the right often to choose their rulers, the right to hold them responsible for their conduct, the right to share in law-making and the right to bear arms. Among the private rights were the right to personal freedom, the right to freedom of religious belief, the right to thought and expression, and the right to quality and to the possession and use of property.

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WHAT ARE 'JUSTICIABLE' AND 'NONJUSTICIABLE' RIGHTS? The real problem that confronted the framers of Indian Constitution was how to limit their selection of rights to certain categories only. What rights were fundamental and what are not, and why? If the rights of life, liberty and property were fundamental, what about right to employment and education? Has not the traditional concept of fundamental rights in its individualistic setting undergone a change in the modern era of the welfare State? The framers had no doubt about the answers to these questions. They were quite conscious of the change in the character of the modern state. They knew that the age of the American Bill of Rights which believed in the "perfectibility of man and the malignancy of Government" had gone forever. And yet, it was a task of utmost difficulty. This was because the State in India was not yet in a position to guarantee the right to employment or education. It was a matter of physical impossibility, not the lack of will. Hence, they divided these rights into two categories, justiciable and nonjusticiable. Justiciable rights are those which can be enforced by a court of law. Part III of the Constitution which is entitled "Fundamental Rights" contains justiciable rights like the right of life, liberty and property. Part IV, "The Directive principles of State Policy, contains non-justiciable rights such as right to employment and education. The citizen has no judicial remedy if he is denied the enjoyment of these rights. Fundamental rights in India are the rights guaranteed under Part III (Articles 12-35) of the Constitution of India. There are six fundamental rights (Article 12 - 35) recognised by the Indian constitution: the right to equality (Articles 14-18), the right to freedom (Articles 19-22), the right against exploitation (Articles 23-24), the right to freedom of religion (Articles 25-28), cultural and educational rights (Articles 29-30) and the right to constitutional remedies (Article 32 and 226). While the Constitution also creates other rights, such as the Right to Property, they are not fundamental rights. In cases of fundamental rights violations, the Supreme Court of India can be directly petitioned under Article 32 of the Constitution. The Rights have their origins in many sources, including England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man.and Rights of women Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they have also been used to abolish untouchability and thus prohibit discrimination on the grounds of religion, race, caste, gender or place of birth. They also forbid trafficking of human beings and forced labour (a crime). They also protect cultural and educational rights of religious establishments. Right to property was changed from fundamental right to legal right.Sardar Vallabhai Patel is considered as the chief architect of fundamental rights of Indian constitution.

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[BestCurrentAffairs.com's Book for IAS Prelims 2022] (ARTICLE 14) EQUALITY BEFORE LAW

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Article 14 of the Constitution of India provides for equality before the law or equal protection of the laws within the territory of India. It states: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." Thus, Article 14 stands for the establishment of a situation under which there is complete absence of any arbitrary discrimination by the laws themselves or in their administration.  The Right to Equality affords protection not only against discriminatory laws passed by legislatures but also prevents arbitrary discretion being vested in the executive. In the modern State, the executive is armed with vast powers, in the matter of enforcing bylaws, rules and regulations as well as in the performance of a number of other functions.  The equality clause prevents such powers being exercised in a discriminatory manner. Article 14 prevents discriminatory practices only by the State and not by individuals. For instance, if a private employer like the owner of a private business concern discriminates in choosing his employees or treats his employees, unequally, the person discriminated against will have no judicial remedy.  Article 14 guarantees equality to all persons, including citizens, corporations, and foreigners.  Its provisions have come up for discussion in the Supreme Court in a number of cases and the case of Ram Krishna Dalmia vs Justice S R Tendolkar reiterated its meaning and scope as follows. Article 14 permits classification, so long as it is 'reasonable', but forbids class legislation. A classification of groups of people is considered reasonable when:  The classification is based upon intelligible differentia that distinguishes persons or things that are grouped from others that are left out of the group, and,  The differential has a rational relation with the objective of the act.  In addition, the classification must be non-arbitrary. Supreme Court in E. P. Royappa (1973) provided guidance on arbitrariness of an act: "Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within the traditional and doctrinaire limits. From the positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies… Where an act is arbitrary, it is implicit that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14."

What is the difference between "equality before the law" & "equal protection of laws"?  The phrase "equality before the law" occurs in almost all written constitutions that guarantee fundamental rights. Equality before the law is an expression of English Common Law while "equal protection of laws": owes its origin to the American Constitution. Both the phrases aim to establish what is called the "equality to status and of opportunity" as embodied in the Preamble of the Constitution. While equality before the law is a somewhat negative concept implying the absence of any special privilege in favour of any individual and the equal subjection of all classes to the ordinary law, equal protection of laws is a more positive concept employing equality of treatment under equal circumstances.

(ARTICLE 15) PROHIBITION OF DISCRIMINATION ON CERTAIN GROUNDS

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Not content with a mere general declaration of the right to equality, and fully conscious of the types of discrimination prevalent in the country, the framers of Indian Constitution went a step further in Article 15, which is more illustrative in character than introducing anything substantially new. Yet, there is one striking feature in it which brings within its scope, although in a limited way, the actions of the private individuals. According to the Article, "the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Further, on the basis of any of these grounds a citizen cannot be denied access to shops, public restaurants or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public." Article 15 has, however, two notable exceptions in its application. The first of these permits the State to make special provision for the benefit of women and children. The second allows the State to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. The special treatment noted out to women and children is in the larger and long range interest of the community itself. It also recognises the social customs and background of the country as a whole. The second exception was not in the original Constitution but was later on added to it as a result of the First Amendment of the Constitution in 1951. Article 15 applies Article 14's general principle of equality in specific situations by forbidding classifications made on protected grounds. While prohibiting discrimination based on prejudice, the Article is also the central issue in a large body of judicial decisions, public debate, and legislation revolving around affirmative action, reservations, and quotas. As of the 103rd Amendment of the Constitution of India, Article 15 has five clauses. Clause (1) prohibits discrimination against citizens on protected grounds. Clause (2) mandates that citizens may access various public or commercial spaces or utilities without discrimination on protected grounds. Clauses (3)-(5) create exceptions or 'special provisions' for these general prohibitions, by allowing the State to create special provisions for women, children, socially and educationally backward classes, scheduled castes and scheduled tribes and economically weaker sections.

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Clauses 1-2: Prohibition of Discrimination on Protected Grounds The first two clauses of Article 15 prohibit discrimination 'on grounds only' of religion, race, caste, sex, place of birth or any of them. In interpreting the phrase 'on grounds only', the Supreme Court has held that the effect of the statute is relevant, not the motive.

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them: Clause 1 of the Article prohibits the State from discriminating against citizens on five protected grounds. Within three years of the adoption of the Constitution, the Supreme Court used Article 15 to invalidate a State law which provided for elections which had separate electorates for members of different religious communities. Courts have on various occasions struck down discriminatory legislation on the basis of race such as in the case of a law which required members of a particular community to report daily to the police, and on the basis of caste, as in the case of a notification which exempted all Harijan and Muslim residents from a compulsory levy in a locality. Similarly, the Article has been used to invalidate sex discrimination by legislation, such as prohibitions on proprietresses holding property or working in premises where liquor was served. Gay, Lesbian, Bisexual and

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[BestCurrentAffairs.com's Book for IAS Prelims 2022] Transgender people are also protected by Article 15, as discrimination against them is discrimination on the basis of 'sex' as interpreted by the Supreme Court.

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Like the other protected grounds, 'place of birth' has also been a source of some ambiguity. In 1955, the Supreme Court distinguished between 'place of birth' and 'residence', holding that discrimination on the basis of 'residence' was not prohibited outright by Article 15. In that ruling, the Court upheld a State Medical College's decision to require a capitation fee from students residing outside the region on the grounds that the decision discriminated on the basis of residence and not on 'place of birth'. The Court diluted that decision in Pradeep Jain v. Union of India, holding that residence requirements (while not prohibited outright by Article 15(1)) were inconsistent with the idea of national unity and integration, and limited residence based reservations to not more than seventy percent of total seats at the MBBS level. For much of its history, Article 15 did not prohibit indirect discrimination. For example, in 1951, the Madras High Court held that the Evacuation Property Ordinance, 1949 did not violate clause (1), though most individuals affected by the ordinance were Muslim, as the operation of the ordinance was not restricted to Muslims alone on the ground of religion. However, in 2021, the Supreme Court in Lt. Col. Nitisha v. Union of India invalidated a facially neutral criteria for the grant of Permanent Commissions to women on the grounds that it was indirectly discriminatory.

Horizontal prohibition of denial of access (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and palaces of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

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Unlike Clause 1 which is addressed to the State, Clause 2 creates a broader prohibition on disability, liability, restriction, or condition with regard to accessing various public spaces and commercial establishments. Sub-clause (a) uses the word 'shop' broadly, to mean premises where goods are sold in any capacity, and including everything from hairdressing saloons to educational institutions. Therefore, there cannot be shops, public restaurants, or spaces of public entertainment which are reserved on the basis of any of the protected grounds. Some scholarship argues that the definition of 'shop' in sub-clause (a) should extend to all private economic market transactions, including exclusionary covenants for the lease of property. Sub-clause (b) relates to the use of wells, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. Accordingly, private wells and tanks are not regulated by sub-clause (b), unless they are dedicated to the use of the general public.

Clauses 3-6: Special provisions for disadvantaged groups Article 15, in Clauses (3-6), allows for positive discrimination in favour of disadvantaged groups. These clauses exist to allow the Indian state's expansive programme of affirmative action.

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Women and children (3) Nothing in this article shall prevent the State from making any special provision for women and children. While Article 15 prohibits discrimination on the grounds of sex, special provisions for women and children are permissible. State institutions created exclusively for women, or special places reserved for women in public transport or places of entertainment do not violate Article 15. However, a 'special provision' does not mean that less favourable treatment may be given to women on a gender-based criterion.

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Socially and educationally backward classes (4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes

Reservations in educational institutions (5) Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including private education institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30.

Economically weaker sections (6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,— (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and (b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category. Explanation.—For the purposes of this article and article 16, "economically weaker sections" shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.

(ARTICLE 16) EQUALITY OF OPPORTUNITY IN MATTERS OF PUBLIC EMPLOYMENT

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

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(ARTICLE 17) ABOLITION OF UNTOUCHABILITY

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Article 17 abolishes "untouchability" and its practice in any form is made an offence punishable under the law. No article in the Constitution was adopted with such unanimity and so great an acclamation and enthusiasm as this article. The custom of untouchability had not only thrown millions of the Indian population into abysmal gloom and despair, shame and disgrace, but it had also eaten into the very vitals of the nation. There would be no better sign of the determination to eradicate the evil than incorporating this Article into the chapter on Fundamental Rights in the Constitution. The Untouchability Offences Act was amended in 1976 making its penal clauses more stringent. The Act has been also renamed as the Protection of Civil Rights Act. One significant new provision of the Act is that a person convicted of an untouchability offence will be disqualified for contesting the elections. It was for the first time that such a provision became a law in the history of elections in India. In Shastri Yagnapurushdasji and Ors. v. Muldas Bhundardas Vaishya and Anr., it was held that ‘untouchability is founded by superstition, ignorance, complete misunderstanding of the true teachings of Hindu religion’. In the famous case of the State of Karnataka vs Appa Balu Ingale, it was noted that,  Abolition of Untouchability is the arch of the Constitution to make the preamble meaningful and to integrate the Dalits in the national main-stream;  The practice of untouchability is the root cause for social segregation, denial of opportunities for Dalits in the educational, economic and cultural pursuits;  All customs, usages, practices directly or indirectly recognizing or encouraging the practice of untouchability in any form is void, as it is opposed to public policy;  The new Act “The Protection of civil rights 1955” was brought out and it was said that the Act is an instrument to enhance the civil, social, cultural, economic and constitutional rights of the Dalits in addition to the rights provided in the Constitutional provisions.

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(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment. (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.  (4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.  (4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year. (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination. (6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.  Article 16 guarantees equality of opportunity in matters of public employment. In the first part of the Article, the general rule is laid down that there shall be equal opportunity for all citizens, wherever they are living in matters of employment under the State, thereby the universality of Indian citizenship is emphasized.  According to this, the State is prohibited from showing any discrimination against any citizen on grounds of religion, caste, race, sex, descent, place of birth or residence. The next clauses are in the nature of exceptions.  According to the first, residence qualifications may be made necessary in the case of appointments under the State for particular positions. But instead of leaving it to individual States to make any rules they like in this regard, the power is vested in Parliament to prescribe the requirement as to residence within the State. This is intended to make the qualifying test uniform throughout India.  The second exception is in favour of reservation of positions in public employment for any backward class of citizens. This is meant to help those who had very little share so far in public employment. The determination of a backward community is a matter that is left to each State Government.  The third exception seeks to take out of the scope of the general principle the management of the affairs of any religious or denominational institution under any special law providing for the same.

(ARTICLE 18) ABOLITION OF TITLES

In the creation of a society which seeks to establish political, social and economic equality and thereby aspires to become truly democratic, there is no room for some individuals to hold titles thus creating artificial distinctions among members of the same society. Recognition of titles and the consequent creation of a hierarchy of aristocracy had been denounced as an antidemocratic practice as early as the eighteenth century by both the American and the French revolutions. In India, the practice of the British Government conferring a number of titles every year mostly on their political supporters and Government officers, had already created a peculiar class of nobility among the people. It was difficult, on principle, for independent India to recognise and accept these titles apart from considerations of the merit of those who held them. Article 18, therefore, abolished all titles and the State is prohibited from conferring titles on any person. The only exception made to the strict rule of non-recognition of titles is that provided in favour of academic or military distinctions. Article 18 prohibits the State from conferring any titles other than military or academic distinctions, and the citizens of India cannot accept titles from a foreign state. Thus, Indian aristocratic titles and title of nobility conferred by the British have been abolished. However, Military and academic distinctions can be conferred on the citizens of India. The awards of Bharat Ratna

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[BestCurrentAffairs.com's Book for IAS Prelims 2022] and Padma Vibhushan cannot be used by the recipient as a title and do not, accordingly, come within the constitutional prohibition". The Supreme Court, on 15 December 1995, upheld the validity of such awards.

(ARTICLE 19) RIGHT TO FREEDOM

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Personal Liberty is the most fundamental of fundamental rights. Articles 19 to 22 deal with different aspects of this basic right. Taken together, these four articles form a charter of personal liberties, which provides the backbone of the chapter on Fundamental Rights. Of these, Article 19 is the most important and it may rightly be called the key-article embodying the "basic freedoms" under the Constitution, guaranteed to all citizens. 19 (1) All citizens shall have the right— a. to freedom of speech and expression; b. to assemble peaceably and without arms; c. to form associations or unions; d. to move freely throughout the territory of India; e. to reside and settle in any part of the territory of India; f. to practise any profession, or to carry on any occupation, trade or business. (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the 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. (3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty andintegrity of India or] public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (5) Nothing in 1 [sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. (6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,— (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.  It is impossible to exaggerate the importance of these freedoms in any democratic society. Indeed, the very test of a democratic society is the extent to which these freedoms are enjoyed by the citizens in general.  These freedoms as a whole constitute the liberty of the individual. What restrictions are put on the freedom of speech and expression? There are eight restrictions on the freedom of speech and expression. These are in respect of the: 1. Sovereignty and integrity of India 2. Security of the State 3. Friendly relations with foreign State 4. Public order 5. Decency or morality 6. Contempt of court 7. Defamation 8. Incitement to violence

Freedom of the Press  There had been much criticism, both within Constituent Assembly and outside, of the omission of a specific reference to freedom of the Press and the failure to guarantee it along with the freedom of speech.  The omission was considered a serious lapse on the part of the Drafting Committee by the protagonists of "Free Press" as a separate right. Nevertheless, the Drafting Committee did not think, it necessary to incorporate right of this nature in the chapter of Fundamental Rights.  Speaking on behalf of the Committee, Dr. Ambedkar said that the Press was merely another way of expression of an individual or a citizen. The press has no special rights which are not to be given or which are not to be exercised by the citizen in his individual capacity.  The editor of a Press or the managers of the Press are all citizens and, therefore, when they choose to write in newspapers, they are merely exercising their right of expression. Therefore, no special mention is necessary of the freedom of the Press.  The word "expression" that is used in Article 19(1) (a) in addition to "speech" is comprehensive enough to cover the freedom of Press.

Other rights covered under the Right to Freedom (Art.19)  Right to Assemble [Art. 19 (1) (b) and 19(3)]: One of the basic protections of free speech is the right of free assembly. In fact, freedom of assembly and freedom of speech go hand in hand. The framers of the Constitution knew that the right to peaceably assemble, public debate and discussion, for political activities and such other purposes was essential to make the freedom of speech and expression real. Hence, the constitutional guarantee to assemble peaceably and without arms. The right to assembly can be restricted only in the interest of public order and the restrictions ought to be reasonable.  Right to Form Associations and Unions [Art, 19 (1) (c) and 19(4)]: The right guaranteed to form association or unions is more or less a charter for all working people in this country. The right to form associations or union can be restricted only in the interest of public order or morality. There can be no association or union for an illegal or conspiratorial purpose. Nor can there

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be an association to further immorality. The right to form associations or unions however, is not available to every citizen in the same measure. A member of the public services, although he is a citizen cannot claim the right to the extent that a private citizen can. Being a Government servant, he is bound by his service rules and he cannot challenge his service rules on the ground that they stand in his way of fully enjoying the right to form associations. Right to Free Movement and to Residence [Art. 19(1) (d), (e) and 19 (5)]: The right to move freely throughout the territory of India, to reside and settle in any part of it are guaranteed under sub-clauses (d) and (e) respectively of clause (1) of Article 19. The importance of the freedom of movement and residence cannot be exaggerated. In fact, the enjoyment of the freedoms guaranteed under the other rights depends largely on the freedom of movement unhampered and uncircumscribed. The state's power to place reasonable restrictions of these freedoms is limited. Freedom of Profession, Occupation, Trade or Business [Art 19 (1) (g) and 19 (6)]: Article 19 (1) (g) guarantees the freedom to practice any profession or to carry on any occupation, trade or business. A doubt was expressed in the Constituent Assembly whether these were fundamental rights at all. Perhaps the only other Constitutions which have given them the status of fundamental rights are those of Ireland and Switzerland. It seems that the framers of the Indian Constitution had been influenced by the complex social system that prevailed in India, in seeking to guarantee rights such as these. It has been the bane of India's social life that professions were inherited rather than acquired. A society dominated by Caste, and professions based upon Caste or religion, have little to offer for the building up of a community enlivened by social mobility and dynamism. Such a society is often intolerant to persons who change the traditional professions of their ancestors and is eager to maintain a petrified social order. A constitutional guarantee of the right to take up the profession, calling, trade or business of one's choice is indeed a significant aid to the building up of a dynamic and democratic society.

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1. Freedom of Speech and Expression: Article 19 of the Constitution provides freedom of speech which is the right to express one’s opinion freely without any fear through oral/written/electronic/broadcasting/press. Freedom of expression includes Freedom of Press. It covers the blogs and websites too. Landmark case: Maneka Gandhi v. Union of India: Freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad also. 2. Freedom of Assembly: The constitution guarantees right to hold meetings and take out processions. The processions and meetings should be unarmed and peaceful. This right may be restricted in the interest of the public order or sovereignty and integrity of the country. This Article has also been reviewed and interpreted by the Supreme Court many times. 3. Freedom of Association: The Constitution declares that all citizens will have the right to form associations and unions. Landmark case: T.K. Rangarajan v. State of Tamil Nadu: Right to form association does not carry the right to strike. 4. Freedom of Movement: The freedom of Movement is guaranteed by the Constitution and citizens can move from one state to another and anywhere within a state. A person free to move from any point to any point within the country’s territories. There are certain exceptions such as Scheduled Tribe areas and army areas. Landmark case: Kharak singh v. State of UP: Watching and shadowing of suspects for the purpose of keeping record of their movement and activities & Domiciliary visits. 5. Freedom of Residence: An Indian citizen is free to reside in any state except from Jammu & Kashmir. Again this is subject to certain restrictions. Landmark case: Ibrahim Wazir v. State of Bombay: Indian citizen came to India without permit and was arrested and deported to Pakistan by the Government. 6. Freedom of Trade and Occupation: The Constitution of India guarantees each of its citizens to do trade, Occupation or business anywhere in the country. Landmark case: P.A. Inamdar v. State of Maharashtra: Education is an occupation. 7. Right to information has been given the status of a Fundamental Right under Article 19(1) of the Constitution in 2005. Article 19 (1) under which every citizen has freedom of speech and expression and the right to know how the government works, what roles it plays, what its functions are, and so on.

(ARTICLE 20) PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES

Article 20 (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself.

Article 20, affords protection against arbitrary and excessive punishment to any person who commits an offence. There are four such guaranteed protections: 1) A person can be convicted of an offence only if he has violated a law in force at the time when he is alleged to have committed the offence; 2) No person can be subjected to greater penalty than what might have been given to him under the law that was prevalent when he committed the offence; 3) No person can be prosecuted and punished for the same offence more than once. 4) No person accused of an offence can be compelled to be a witness against himself. Ex Post Facto Legislation: The clause (1) of Article 20 protects individuals against ex post facto legislation, which means no individual can be convicted for actions that were committed before the enactment of the law. In other words, when a legislature declares an act to be an offence or provides a penalty for an offence, it can’t make the law retroactive so as to prejudicially affect the individuals who have committed such acts prior to the enactment of that law. Immunity from Double Punishment: The Constitution of India prohibits double punishment for the same offence. That is reflected in the clause (2) of Article 20, which safeguards an individual from facing multiple punishments or successive criminal proceedings for the same crime. According to this clause, no person shall be prosecuted and punished for the same offence more than once.

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(ARTICLE 21) PROTECTION OF LIFE AND PERSONAL LIBERTY 

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If someone has been put on trial and punished in a previous proceeding of an offence, he can’t be prosecuted and punished for the same proceedings of an offence again in subsequent proceeding. If any law provides for the double punishment, it will be considered void. Although Article 20 disapproves of the doctrine of ‘Double Jeopardy’, it does not give immunity from proceedings before a court of law or tribunal. Hence, a public servant who has been punished for an offence in a court of law may yet be subjected to departmental proceedings for the same offence. It is to be noted that Article 20 provides protection against double punishment only when the accused has been ‘prosecuted’ and ‘punished’ once. Also, the Article does not prevent subsequent trial and conviction for another offence even if the two offences have some common aspects. Immunity from Self-Incrimination: The immunity from self-incrimination is conferred in the Article 20(3) of the constitution which states that the accused can never be compelled to be a witness against himself. In short, no individual can be forced to accuse himself. The scope of this immunity has, prima facie, been widened by the Supreme Court by interpreting the word ‘witness’ as inclusive of both oral and documentary evidence. Hence, no person can be compelled to furnish any kind of evidence, which is reasonably likely to support a prosecution against him. This ‘Right to Silence’ is not called upon in case any object or document is searched and seized from the possession of the accused. For the same reason, the clause does not bar the medical examination of the accused or the obtaining of thumb-impression or specimen signature from him. This immunity is only limited to criminal proceedings. The Article 20 (3) can be rightfully used as an anchor only by those accused of an offence and against whom an FIR has been lodged, which in normal course would result in prosecution.

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Article 21, is one of the shortest in the constitution over which there took place one of the longest and most through going discussions in the Constituent Assembly.  Article 21 reads: “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”  Article 21 (and its many interpretations) is the perfect example of the transformative character of the Constitution of India. The Indian judiciary has attributed wider connotation and meaning to Article 21, extending beyond the Constitution makers’ imagination.  In Francis Coralie Mullin vs The Administrator (1981), Justice P. Bhagwati had said that Article 21 ’embodies a constitutional value of supreme importance in a democratic society’. Further, Justice Iyer characterised Article 21 as ‘the procedural Magna Carta protective of life and liberty’.  Article 21 is at the heart of the Constitution. It is the most organic and progressive provision in our living Constitution. Article 21 can only be claimed when a person is deprived of his ‘life or ‘personal liberty’ by the ‘State’ as defined in Article 12. Thus, violation of the right by private individuals is not within the preview of Article 21.  Article 21 secures two rights: 1) Right to life, and 2) Right to personal liberty.  It prohibits the deprivation of the above rights except according to a procedure established by law. Article 21 corresponds to the Magna Carta of 1215, the Fifth Amendment to the American Constitution, Article 40(4) of Eire 1937, and Article XXXI of the Constitution of Japan, 1946.  It is also fundamental to democracy as it extends to natural persons and not just citizens. The right is available to every person, citizen or alien. Thus, even a foreigner can claim this right. It, however, does not entitle a foreigner to the right to reside and settle in India, as mentioned in Article 19 (1) (e).  Article 21, gives protection to life and personal liberty to the extent therein mentioned. It does not recognise the right to life and personal liberty as an absolute right but limits the scope of the right itself. The absolute right is, by the definition in the article, qualified by the risk of its being taken away in accordance with the procedure established by law.  It is this circumscribed right which is substantively protected by Article 21, as against the executive as well as the legislature, for the Constitution has conditioned its deprivation by the necessity for a procedure established by law made by the legislature.  While sub-clauses 2 to 6 of Article 19 have put a limit on the fundamental right of a citizen, Article 21 along with Article 22 puts a limit on the power of the State given under Article 246, read with the legislative lists. Under the Constitution, life and personal liberty are balanced by restrictions on the rights of the citizens as laid down in Article 19, and by the checks put upon the State by Article 21 and 22.  ‘LIFE’ in Article 21 of the Constitution is not merely the physical act of breathing. It does not connote mere animal existence or continued drudgery through life. It has a much wider, including, including the right to live with human dignity, Right to livelihood, Right to health, Right to pollution-free air, etc. The right to life is fundamental to our very existence, without which we cannot live as human beings and includes all those aspects of life, which make a man’s life meaningful, complete, and worth living. It is the only Article in the Constitution that has received the broadest possible interpretation. Thus, the bare necessities, minimum and basic requirements for a person from the core concept of the right to life. Right To Live with Human Dignity  In Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to Art. 21. The Court held that the right to live is not merely a physical right but includes within its ambit the right to live with human dignity. Right Against Sexual Harassment at Workplace  Sexual harassment of women has been held by the Supreme Court to be violative of the most cherished of the fundamental rights, namely, the Right to Life contained in Art. 21. In Vishakha v. State of Rajasthan, the Supreme Court declared sexual harassment at the workplace to violate the right to equality, life and liberty. Therefore, a violation of Articles 14, 15 and 21 of the Constitution. Article 21: Sexual Assault and Rape  Rape has been held to be a violation of a person’s fundamental life guaranteed under Article 21. Therefore, the right to life would include all those aspects of life that go on to make life meaningful, complete and worth living. Right to Reputation and Article 21  Reputation is an essential part of one’s life. It is one of the finer graces of human civilisation that makes life worth living. The Supreme Court referred to D.F. Marion v. Minnie Davis in Smt. Kiran Bedi v. Committee of Inquiry. Right To Livelihood  Supreme Court in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni, came to hold that ‘the right to life’ guaranteed by Article 21 includes ‘the right to livelihood’.

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Right to Shelter  In UP Avas Vikas Parishad v. Friends Coop. Housing Society Limited, the right to shelter has been held to be a fundamental right which springs from the right to residence secured under Article 19(1)(e) and the right to life guaranteed under Article 21. The state has to provide facilities and opportunities to build houses to make the right meaningful for the poor. Right To Social Security And Protection Of Family  Right to life covers within its ambit the right to social security and protection of the family. K. Ramaswamy J., in Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash Chandra Bose, held that right to social and economic justice is a fundamental right under Art. 21. Right To Health And Medical Care  In State of Punjab v. M.S. Chawla, it was held that the right to life guaranteed under Article 21 includes within its ‘ambit the right to health and medical care’. Right to Die with Dignity  In a landmark judgment (Common Cause (A Regd. Society) v. Union of India & Anr.) delivered on 9th March, 2018, the Supreme Court of India held that a person in persistent vegetative state can opt for passive euthanasia, and that a person can execute a living will to refuse medical treatment in case of a terminal illness. In delivering its judgment, the Supreme Court held that the right to die with dignity is an intrinsic facet of the right to life under Article 21 of the Constitution of India. Right to get Pollution Free Water and Air  In Subhas Kumar v. State of Bihar, it has held that a Public Interest Litigation is maintainable for ensuring enjoyment of pollution-free water and air which is included in ‘right to live’ under Art.21 of the Constitution. Right to Clean Environment  The “Right to Life” under Article 21 means a life of dignity to live in a proper environment free from the dangers of diseases and infection. Maintenance of health, preservation of the sanitation and environment have been held to fall within the purview of Article 21 as it adversely affects the life of the citizens and it amounts to slow poisoning and reducing the life of the citizens because of the hazards created if not checked. Right Against Noise Pollution  With regard to Noise Pollution, the case was regarding noise pollution caused by obnoxious noise levels due to the bursting of crackers during Diwali. The Apex Court suggested to desist from bursting and making use of such noise-making crackers. Right to Know  Holding that the right to life has reached new dimensions and urgency the Supreme Court in RP Ltd. v. Proprietors Indian Express Newspapers, Bombay Pvt. Ltd., observed that if democracy had to function effectively, people must have the right to know and to obtain the conduct of affairs of the state. Right To Privacy And Article 21  Although not explicitly mentioned in the Constitution, the right to privacy was considered a ‘penumbral right’ under the Constitution, i.e. a right declared by the Supreme Court as integral to the fundamental right to life and liberty. In Puttaswamy v. Union of India case, 2017, the Right to Privacy was declared a fundamental right by the Supreme Court. Right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. Right to Travel Abroad  In Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi, the Supreme Court has included the right to travel abroad contained in the expression “personal liberty” within the meaning of Article 21. Article 21 And Prisoner’s Rights  The protection of Article 21 is available even to convicts in jail. The convicts are not deprived of all the fundamental rights they otherwise possess by mere reason of their conviction. Following the conviction of a convict is put into jail he may be deprived of fundamental freedoms like the right to move freely throughout the territory of India. But a convict is entitled to the precious right guaranteed under Article 21, and he shall not be deprived of his life and personal liberty except by a procedure established by law. In Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to Article 21. The Court has interpreted Article 21 to have the widest possible amplitude. Right to Free Legal Aid & Right to Appeal  In M.H. Hoskot v. State of Maharashtra, while holding free legal aid as an integral part of fair procedure. Right to Speedy Trial  In Hussainara Khatoon v. Home Secretary, State of Bihar, the Supreme Court observed that an alarming number of men, women and children were kept in prisons for years awaiting trial in courts of law. Right to Fair Trial  The free and fair trial has been said to be the sine qua non of Article 21. The Supreme Court in Zahira Habibullah Sheikh v. State of Gujarat said that the right to free and fair trial to the accused and the victims, their family members, and relatives and society at large. Right to Bail  In Babu Singh v. State of Uttar Pradesh, the Court held that the right to bail was included in the personal liberty under Article 21. Its refusal would be the deprivation of that liberty, which could be authorised in accordance with the procedure established by law. Anticipatory bail is a statutory right, and it does not arise out of Article 21. Therefore, anticipatory bail cannot be granted as a matter of right as it cannot be granted as a matter of right as it cannot be considered as an essential ingredient of Article 21. Right Against Handcuffing  Handcuffing has been considered prima facie inhuman and therefore unreasonable, over-harsh and at first flush, arbitrary. It has been held to be unwarranted and violative of Article 21. Right Against Solitary Confinement  It has been held that a convict is not wholly denuded of his fundamental rights, and his conviction does not reduce him into a non – person whose rights are subjected to the whims of the prison administration. Therefore, the imposition of any major punishment within the prison system is conditional upon the observance of procedural safeguard. Right Against Custodial Violence  The Supreme Court has taken a very positive stand against the atrocities, intimidation, harassment and use of third-degree methods to extort confessions. The Court has classified these as being against human dignity. The rights under Article 21 secure life with human dignity and the same are available against torture.

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Death by hanging is Not Violative of Article 21  SC held that death by hanging was the best and least painful method of carrying out the death penalty. Thus, not violative of Article 21. Right Against Public Hanging  Supreme Court in Attorney General of India v. Lachma Devi held that the direction for the execution of the death sentence was unconstitutional and violative of Article 21. Right Against Delayed Execution  In T.V. Vatheeswaram v. State of Tamil Nadu, the Supreme Court held that the delay in execution of a death sentence exceeding 2 years would be sufficient ground to invoke protection under Article 21 and the death sentence be commuted to life imprisonment. The cause of the delay is immaterial. The accused himself may be the cause of the delay. Right to be Forgotten (RTBF)  It is the right to have publicly available personal information removed from the internet, search, databases, websites or any other public platforms, once the personal information in question is no longer necessary, or relevant. The RTBF gained importance after the 2014 decision of the Court of Justice of the European Union (“CJEU”) in the Google Spain case. In the Indian context, the Supreme Court in Puttaswamy v. Union of India, 2017 noted that the RTBF was a part of the broader right of privacy under Article 21.

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Procedure Established By Law And Article 21  The Supreme Court took the view that ‘procedure established by law’ in Article 21 means procedure prescribed by law as enacted by the state and rejected to equate it with the American ‘due process of law’. But, in Maneka Gandhi v Union of India, the Supreme Court observed that the procedure prescribed by law for depriving a person of his life and personal liberty must be ‘right, just and fair’ and not ‘arbitrary, fanciful and oppressive’. It also held that otherwise, it would be no procedure, and the requirement of Article 21 would not be satisfied. Thus, the ‘procedure established by law’ has acquired the same significance in India as the ‘due process of law’ clause in America.  The Supreme Court has widened the scope of ‘procedure established by law’ and held that merely a procedure had been established by law, a person cannot be deprived of his life and liberty unless the procedure is just, fair and reasonable.

(ARTICLE 21 A) RIGHT TO EDUCATION

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It reads, “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine”. This provision was not included in the Constitution of India, 1950. It was inserted by the Constitution (Eighty Sixth Amendment) Act, 2010. The Right of Children to Free and Compulsory Education (RTE) Act, 2009, which represents the consequential legislation envisaged under Article 21-A, means that every child has a right to full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards. Article 21-A and the RTE Act came into effect on 1 April 2010. The title of the RTE Act incorporates the words ‘free and compulsory’. ‘Free education’ means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education. ‘Compulsory education’ casts an obligation on the appropriate Government and local authorities to provide and ensure admission, attendance and completion of elementary education by all children in the 6-14 age group. With this, India has moved forward to a rights based framework that casts a legal obligation on the Central and State Governments to implement this fundamental child right as enshrined in the Article 21A of the Constitution, in accordance with the provisions of the RTE Act.

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(ARTICLE 22) PROTECTION AGAINST ARREST AND DETENTION

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twentyfour hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (3) Nothing in clauses (1) and (2) shall apply— (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless— (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under subclauses (a) and (b) of clause (7). (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe— (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);

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(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).  Article 22 guarantees three rights. First, it guarantees the right of every person who is arrested to be informed of the cause of his arrest, secondly, his right to consult, and to be defended by a lawyer of his choice.Thirdly, every person arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours and shall be kept in continued custody only with his authority. All these rights are without any qualifications and are, therefore, in absolute terms.  There are however two exceptions to the universal application of the rights guaranteed under the first two clauses of Article 22. These relate to. 1. Any person who is an enemy alien, or 2. Any person who is arrested or detained under any law providing for preventive detention.  Preventive Detention – The second part of the Article deals with preventive detention. In preventive detention persons are arrested to prevent them from committing a serious crime. Preventive detention is detention of a person without trial for a limited period, when the State suspects that a person is likely to commit crime or is a threat to the security of the State. Such a detention too is subject to some safeguards present in Article 22. These provisions are as follows:  A person detained on the ground of suspicion shall be detained for a maximum period of three months.  If the government seeks to detain the arrested person beyond three months, his detention must be authorized by an Advisory body, comprising judge of the level of High Court. In this regard, the Parliament is given the power to determine by law the maximum period for which a person can be detained on preventive grounds.  The detained person must be informed about the reason of his arrest, as soon as possible. An exception has been added to this provision that the State may withhold the reasons of preventive detention or such related facts, if it considers that to be against the public interest to disclose.  The detained person must have the earliest opportunity to present his case before the authority of law.  Clause 7 of Article 22 has become the basis of many of the infamous preventive detention laws, where the general guidelines mentioned above have been relaxed. These provisions allow for extended detention without obtaining permission of The Courts.  The Acts related to preventive detention have always been controversial for their alleged misuse and human rights violation. Preventive detention is a serious invasion of personal liberty and the laws related to this necessary evil must be applied very cautiously. Some of these Central government Acts are as follows:  Preventive Detention Act in 1950.  Armed Forces (Special Powers) Act, 1958 (AFSPA)  Unlawful Activities (Prevention) Amendment Act, 1967 (UAPA), amended in 2004 and 2008.  Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA).  Maintenance of Internal Security Act (MISA) in 1974 now repealed.  The National Security Act (NSA) in 1980.  Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act (ESMA) in 1980.  Terrorist and Disruptive Activities Act (TADA) in 1985, now repealed.  Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988.  Prevention of Terrorism Act, 2002 (POTA) now repealed.  Under Section 151 of The Criminal Procedure Code, 1973 (CrPC) preventive detention is action taken on grounds of suspicion that some wrong actions may be done by the person concerned. A police officer can arrest an individual without orders from a Magistrate and without any warrant if he gets any information that such an individual can commit any offense.  Difference between Preventive Detention and an Arrest: An ‘arrest’ is done when a person is charged with a crime. An arrested person is produced before a magistrate within the next 24 hours. In case of preventive detention, a person is detained as he/she is simply restricted from doing something that might deteriorate the law and order situation.

(ARTICLE 23) PROHIBITION OF TRAFFIC IN HUMAN BEINGS AND FORCED LABOUR

Article 23 and 24 deal with the right against exploitation. 23 (1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. 23 (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.  It protects both citizens and non-citizens against state and private individuals in terms of exploitation.  It makes the state responsible for identifying & removing any such kind of bad practices. Practices Prohibited By Article 23  Beggar: The term beggar is of Indian origin. Labour without payment is known as begar. The beggar was a framework where the government (indeed, the British Government officials) and Zamindars used to propel the people to convey their products when they moved from one spot to another spot. It implies compulsory work without installment. Beggar establishes 2 components  It is to propel an individual to neutralize his will, and  he isn't paid any compensation for that work.  Traffic in human beings: This term implies selling and buying of people from one person to another, sometimes from one country to other, as if they are their chattels. Although, slavery is not expressly mentioned under Article 23 but is included within the meaning of traffic in human beings. In pursuance of Article 23, Parliament has passed the Suppression of Immoral Traffic in Women and Girls Act, 1956, for punishing human trafficking.  Bonded Labour/ Forced Labour: Here the labor does not work because of only physical and mental force but also because of his economic conditions like to pay off his debts. In this way, he is forced to work and if on time he is not able to pay off his debts then the work sometimes gets doubles without any payment or it passes to the next generation. So from here the term Bonded labor or forced labor came.  Exploitation implies the misuse of others’ services by force and/or labour without payment. There were many marginalized communities in India who were forced to engage in manual and agricultural labour without any payment.

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Article 23 forbids any form of exploitation. Also, one cannot be forced to engage in labour against his/her will even if remuneration is given. Forced labour is forbidden by the Constitution. It is considered forced labour if the less-than-minimum wage is paid. This article also makes ‘bonded labour’ unconstitutional. Bonded labour is when a person is forced to offer services out of a loan/debt that cannot be repaid. The Constitution makes coercion of any kind unconstitutional. Thus, forcing landless persons into labour and forcing helpless women into prostitution is unconstitutional. The Article also makes trafficking unconstitutional. Trafficking involves the buying and selling of men and women for illegal and immoral activities. Even though the Constitution does not explicitly ban ‘slavery’, Article 23 has a wide scope because of the inclusion of the terms ‘forced labour’ and ‘traffic’. The State is obliged to protect citizens from these evils by taking punitive action against perpetrators of these acts (which are considered crimes), and also take positive actions to abolish these evils from society. Under Article 35 of the Constitution, the Parliament is authorized to enact laws to punish acts prohibited by Article 23. Clause 2 implies that compulsory services for public purposes (such as conscription to the armed forces) are not unconstitutional. Laws passed by the Parliament in pursuance of Article 23:  Suppression of Immoral Traffic in Women and Girls Act, 1956  Bonded Labour System (Abolition) Act, 1976

(ARTICLE 24) PROHIBITION OF EMPLOYMENT OF CHILDREN IN FACTORIES, ETC

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(ARTICLE 25) FREEDOM OF CONSCIENCE & FREE PROFESSION, PRACTICE & PROPAGATION OF RELIGION

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Article 24 says that “No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.”  This Article forbids the employment of children below the age of 14 in any hazardous industry or factories or mines, without exception. However, the employment of children in non-hazardous work is allowed.  This Article is now intimately related to a Fundamental Rights as well as Fundamental Duties which call upon the State to enforce Universal Compulsory and Free Primary Education to all children in the country up to the age of 14 years. This comes of the realisation that children should prepare during this period for the task of the future as useful and responsible citizens.  Employment of children is an uncivilized and even inhuman practice. It is exploitation. It stunts their growth, corrupts their moral fibre and often drives them to delinquency. Naturally, it must be prohibited and incentives to divert them from employment should be provided. Laws that were passed in pursuance of Article 24 in India:  The Factories Act, 1948: This was the first act passed after independence to set a minimum age limit for the employment of children in factories. The Act set a minimum age of 14 years. In 1954, this Act was amended to provide that children below the age of 17 could not be employed at night.  The Mines Act of 1952: This Act prohibits the employment of people under the age of 18 years in mines.  The Child Labour (Prohibition and Regulation) Act, 1986: This was a landmark law enacted to curb the menace of child labour prevalent in India. It described where and how children could be employed and where and how this was forbidden. This Act designates a child as a person who has not completed his/her 14th year of age. The 1986 Act prohibits the employment of children in 13 occupations and 57 processes.  Child Labour (Prohibition & Regulation) Amendment Act, 2016: This Act completely forbids the employment of children below 14 years of age. It also bans the employment of people between the ages of 14 and 18 in hazardous occupations and processes. Punishments to violators of this law were made stricter by this amendment act. This Act allows children to be employed in certain family occupations and also as artists.  Child Labour (Prohibition and Regulation) Amendment Rules, 2017: The government notified the above Rules in 2017 to provide a broad and specific framework for prevention, prohibition, rescue, and rehabilitation of child and adolescent workers. The Rules clarified on issues concerning the employment of family enterprises and also provides safeguards for artists in that the working hours and conditions are specified.

25 (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. 25 (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law— (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.  The Supreme Court in Tilkayat Shri Govindlalji Maharaj V. State of Rajasthan held that the test to determine the question in deciding what is an integral part of a religion is whether it is regarded as integral by the community following that religion or not. Restrictions on Freedom of Religion: The Supreme Court in In re, Noise Pollution case, has given certain directions to be followed to control noise pollution in the name of religion:  Firecrackers: A complete ban on sound-emitting firecrackers from 10 pm to 6 am.  Loudspeakers: Restriction on the beating of drums, tom-tom, blowing of trumpets, or any use of any sound amplifier between 10 pm to 6 am except in public emergencies.  Generally: A provision shall be made by the State to confiscate and seize loudspeakers and such other sound amplifiers or equipment that create noise beyond the limit prescribed.

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[BestCurrentAffairs.com's Book for IAS Prelims 2022] (ARTICLE 26) FREEDOM TO MANAGE RELIGIOUS AFFAIRS

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Article 26 says, “Subject to public order, morality and health, every religious denomination or any section thereof shall have the right — (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law”.  The word ‘religious denomination’ is not defined in the Constitution. The word ‘denomination’ came to be considered by the Supreme Court in the case of Commissioner, Hindu Religious endowment Madras v. Shri Laxmindra Thirtha Swamiar of Shri Shirur Mutt. In this case, the meaning of ‘Denomination’ was culled out from the Oxford dictionary, “A collection of individuals classed together under the same name, a religious sect or body having a common faith and organization designated by a distinctive name”.  Article 26 does not deal with the right of an individual but is confined to a religious denomination. Article 26 refers to a denomination of any religion, whether it is a majority or a minority religion, just as Article 25 refers to all persons, whether they belong to the majority or a minority religion.  The Supreme Court in S. P. Mittal vs UOI 1983 case held that a religious denomination must satisfy three conditions:  It should be a collection of individuals who have a system of beliefs (doctrines) which they regard as conducive to their spiritual well-being;  It should have a common organization; and  It should be designated by a distinctive name.  Under the above criteria, the Supreme Court held that the ‘Ananda Marga’ is religious denominations within the Hindu religion. It also held that the Aurobindo Society is not a religious denomination.  Brahmachari Sidheswar Shai vs State of West Bengal 1995:- The ‘Ramakrishna Mission’ is a religious denomination within the Hindu religion.  S. Azeez Basha vs UOI 1967:- Religious institute means it has established under religion, not by any other. Means Aligarh Muslim University not a religious institute of Muslims because it is established by an act pass by parliament.

(ARTICLE 27) FREEDOM AS TO PAYMENT OF TAXES FOR PROMOTION OF ANY PARTICULAR RELIGION

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Article 27 says that "No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination."  This article provides an exemption to pay tax for religious activity. That clear more secularism concept of the state.  Other meaning of the article, the State should not spend the public money collected by way of tax for the promotion or maintenance of any particular religion.  This provision prohibits the State from favoring, patronizing, and supporting one religion over the other.  This means that the taxes can be used for the promotion or maintenance of all religions in an equal manner.  This provision prohibits only the levy of a tax and not a fee. (Ratilal Gandhi vs State Of Bombay 1954)  This is because the purpose of a fee is to control the secular administration of religious institutions and not to promote or maintain the religion.  Thus, a fee can be levied on pilgrims to provide them some special service or safety measures.  Similarly, a fee can be levied on religious endowments for meeting the regulation expenditure.  In K. Raghunath vs State Of Kerala, 1972 case Supreme Court held that the reconstruction of demolished masjid in a riot by the government does not violate this right.  In 2012, the Supreme Court directed the Union government to gradually reduce and abolish the Haj subsidy in 10 years and invest the amount in education and other measures for the social development of the minority community.

(ARTICLE 28) FREEDOM AS TO ATTENDANCE AT RELIGIOUS INSTRUCTION OR RELIGIOUS WORSHIP IN CERTAIN EDUCATIONAL INSTITUTIONS

Article 28 says that: 28 (1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds. 28 (2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution. 28 (3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.  This article helps to stop forcefully worshiping and attending religious instruction.  The provision of Article 28(1) that no religious instruction shall be provided in any educational institution wholly maintained out of State funds.  However, this provision shall not apply to an educational institution administered by the State but established under any endowment or trust, requiring imparting religious instruction in such an institution.  Further, no person attending any educational institution recognized by the State or receiving aid out of State funds shall be required to attend any religious instruction or worship in that institution without his consent.  In the case of a minor (Age below 18), the consent of his guardian is needed.  Thus, Article 28 distinguishes between four types of educational institutions: (a) Institutions wholly maintained by the State (Religious instruction is completely prohibited) (b) Institutions administered by the State but established under any endowment or trust (Religious instruction is permitted) (c) Institutions recognized by the State (Religious instruction is permitted on a voluntary basis) (d) Institutions receiving aid from the State (Religious instruction is permitted on a voluntary basis)

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WHAT ARE THE RESTRICTIONS ON THE FREEDOM OF RELIGION? Although the freedom of religion guaranteed by Article 25 of Indian Constitution is wide in scope, it is far from being absolute. It is subject to public order, morality and health, and to the other provision of Part III of the Constitution Article 25(1). This freedom also shall not affect the operation of any existing law, or prevent the State from making any law: (a) Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, and (b) Regulating for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Other provisions related to Secularism:  In conformity with the principle of the Secular State, the Constitution of India establishes a single common citizenship. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them Article 15(1).  In particular, no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, restriction or condition with regard to : (a) access to shops, public restaurants, hotels and places of public entertainment, or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public Article 15 (2).  The educational facilities provided by the State are to be enjoyed equally by all the citizens. No citizen shall be denied admission into any educational institution funded by the State or receiving aid out of State funds on grounds only of religion, race, caster, language or any of them [Article 29 (2)].

(ARTICLE 29) PROTECTION OF INTERESTS OF MINORITIES

When we read clause (2) of Article 29, we realized the same as article 15(1). But note here both have some difference. Article 15(1) Article 29(2) Protects rights only against state Protects right against state and other institutions Prohibits Many types of discrimination Prohibits special actions, Like admission into an educational institution This clause covers a wider area and it Only related to admission into educational applicable for all citizens irrespective of institution maintained by the State or receiving aid Minority or Majority out of State funds Prohibits discrimination on the basis of ‘Sex’ & Those are not prohibited here ‘Birth Place’

(ARTICLE 30) RIGHT OF MINORITIES TO ESTABLISH AND ADMINISTER EDUCATIONAL INSTITUTIONS

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29(1): Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. 29(2): 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, language or any of them.  This right has only for citizens of India which resides within the territory of the country.  As we know India has huge diversity. This article gives the right to every citizen to protect and maintain their culture, language, and script.  Hindus are the majority in India where Muslim, Christian, Parsi, etc in minority. But in some states or union territory, Hindus are also in minority.  Every time minority has fear about losing their identity and culture, which has ensured by article 29. The first provision article 29(1) protects the right of a group.  While the second provision article 29(2) guarantees the right of a citizen as an individual irrespective of the community to which he belongs.  Article 29(1) is an absolute right for the minorities. It cannot be subject to reasonable restrictions in the interest of the general public.  Article 29 grants protection to both religious minorities as well as linguistic minorities. This means only two types of minorities mentioned in the constitution (1) Religious (2) Linguistic. Not mention the cast, representation, or other types of the minority.  However, the Supreme Court held that the scope of this article is not necessarily restricted to minorities only, as it is commonly assumed to be. This is because of the use of the words ‘section of citizens’ in the Article that includes minorities as well as the majority.  The Supreme Court also held that the right to conserve the language includes the right to agitate (By maintaining Law and Order) for the protection of the language.  Hence, the 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.  State of Bombay v. Bombay Education Society’s Case, 1954:- SC held that limiting this right only to minority groups will amount to holding that the citizens of the majority group have no right to be admitted into an educational institution for the maintenance of which they contribute by the way of taxes.  Ravneet Kaur v. Christian Medical College, Ludhiana’s Case 1998, the Court held that a private institution receiving aid from the State cannot discriminate on grounds of religion, caste, race language, or any of them.

(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. (1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.

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(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.  Article 30 is a charter of educational rights. It guarantees in absolute terms the right of linguistic and religious minorities to establish and administer educational institutions of their choice and, at the same time, claim grants-in-aid without any discrimination based upon religion or language.  The fact that the Constitution does not impose any express restriction in the scope of the enjoyment of this right, unlike most of the rights included in the chapter on Fundamental Rights, shows that the framers intended to make its scope unfettered.  This does not, however, mean that the State cannot impose reasonable restrictions of the regulatory character for maintaining standards of education. This point has been made abundantly clear in judicial pronouncements.

Special significance of Religious, Educational and Cultural Rights  Taking the right guaranteed under religious, educational and cultural fields as a whole, it must be noted that these are couched in the most comprehensive language, and the maximum possible freedom is guaranteed to the minorities, religious and linguistic.  The special significance of these provisions is that while the impact of other rights in Part-III of the Constitution is on the people of India as a whole, irrespective of religion, caste, race, or language, that of these rights is only on the minorities.  The democratic basis of the Constitution would be lost if the minorities were not given adequate protection to preserve their religious believes, and institutions of education and culture, the Constitution may then be branded as an instrument for the furtherance of the majority community and the language of the majority.  Naturally, resentment against such a position would manifest all over the country. Moreover, such a position would have discredited the foundation of the national movement against foreign rule, in which every religious and linguistic minority in India was represented and solemn promises had been made by representative of the majority community to safeguard the legitimate interests of the minorities against all forms of tyranny in a free India.

(ARTICLE 31) COMPULSORY ACQUISITION OF PROPERTY

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[Compulsory acquisition of property] Repealed by the Constitution (44th Amendment) Act, 1978 (w.e.f. 20-6-1979).

(ARTICLE 31A) SAVING OF LAWS PROVIDING FOR ACQUISITION OF ESTATES, ETC

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(1) Notwithstanding anything contained in article 13, no law providing for— (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or (b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or (c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or (d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or (e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19: Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent: Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof. (2) In this article,— (a) the expression ''estate'' shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include— (i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right; (ii) any land held under ryotwari settlement; (iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans; (b) the expression ''rights'', in relation to an estate, shall include any rights vesting in a proprietor, subproprietor, under-proprietor, tenure-holder, 1 [raiyat, under-raiyat] or other intermediary and any rights or privileges in respect of land revenue.

(ARTICLE 31B) VALIDATION OF CERTAIN ACTS AND REGULATIONS

Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or Tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.

(ARTICLE 31C) SAVING OF LAWS GIVING EFFECT TO CERTAIN DIRECTIVE PRINCIPLES Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing 4 [all or any of the principles laid down in Part IV] shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy:

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[BestCurrentAffairs.com's Book for IAS Prelims 2022] Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.

(ARTICLE 31D) SAVING OF LAWS IN RESPECT OF ANTI-NATIONAL ACTIVITIES

(ARTICLE 32) REMEDIES FOR ENFORCEMENT OF RIGHTS CONFERRED BY THIS PART

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[Saving of laws in respect of anti-national activities.] Repealed by the Constitution (Forty-third Amendment) Act, 1977 (w.e.f. 13-4-1978).

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32(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. 32(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. 32(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). 32(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.  A declaration of fundamental rights is meaningless unless there is effective machinery for the enforcement of the rights. Hence the framers of the Constitution were in favour of adopting special provisions guaranteeing the right to constitutional remedies. This, again, is in tune with the nature in general of the various provisions embodied in the chapter on Fundamental Rights.  As the guardian of fundamental rights the Supreme Court has two types of jurisdiction, original and appellate. Under its original jurisdiction, any person who complains that his fundamental rights have been violated within the territory of India may move the Supreme Court seeking an appropriate remedy.  The fact that they may have a remedy in any of the High Courts does not preclude him from going directly to the Supreme Court.

WRITS  Habeas corpus 'You may have the body' (a person unlawfully detained is sought to be set at liberty)  Mandamus: 'We order' (commanding a person or a body to do that which it is his, or its duty)  Prohibition: Issued primarily to prevent an inferior court from exceeding its jurisdiction  Certiorari: Orders the removal of a suit from an inferior court to a superior court  Quo warranto: Restrains a person from acting in a office to which he is not entitled

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Habeas Corpus  Habeas corpus is a Latin term which literally means "You may have the body". Under the law of England, as a result of long usage, the term came to signify a prerogative writ, a remedy with which a person unlawfully detained is sought to be set at liberty.  It is mentioned as early as the fourteenth century in England and was formalized in the Habeas corpus Act of 1679. The privilege of the use of this writ was regarded as a foundation of human freedom and the British citizen insisted upon the privilege wherever he went whether for business or colonization.  This is how it found a place in the Constitution of the United States when the British colonies in America won their independence and established a new State under that Constitution.  In India, under the Constitution, the power to issue writ of habeas corpus is vested only in the Supreme Court and High Courts. The writ is a direction of the Court to a person who is detaining another, commanding him to bring the body of the person in his custody at a specified time to a specified place for a specified purpose.  A writ of habeas corpus has only one purpose: to set at liberty a person who is confined without legal justification; to secure release from confinement of a person unlawfully detained.  The writ does not punish the wrong-doer. If the detention is proved unlawful, the person who secures liberty through the writ may proceed against the wrong doer in any appropriate manner.  The writ is issued not only against authorities of the State but also to private individuals or organisations if necessary.

Mandamus  The Latin word 'mandamus' means 'we order'. The writ of 'mandamus' is an order of the High Court or the Supreme Court commanding a person or a body to do that which it is his, or its duty to do. Usually, it is an order directing the performance of ministerial acts.  A ministerial act is one which a person or body is obliged by law to perform under given circumstances. For instance, a licensing officer is obliged to issue a license to an applicant if the latter fulfils all the conditions laid down for the issue of such license.  Similarly, an appointing authority should issue a letter of appointment to a candidate if all the formalities of selection are over and if the candidate is declared fit for the appointment. But despite the fulfilment of such conditions, if the officer or the authority concerned refuses or fails to issue the appointment letter, the aggrieved person has a right to seek the remedy through a writ of 'mandamus'.  There are three essential conditions for the issue of writ of 'mandamus'. 1. First, the applicant must show that he has a real and special interest in the subject matter and a specific legal right to enforce. 2. Secondly, he must show that there resides in him a legal right to the performance sought, and; 3. Finally, that there is no other equally effective, convenient and beneficial remedy. Prohibition  A writ of prohibition is issued primarily to prevent an inferior court from exceeding its jurisdiction or acting contrary to the rule of natural justice, for example, to restrain a judge from hearing a case in which he is personally interested.

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The term 'inferior courts' comprehends special tribunals, commissions, magistrates and officers who exercise judicial powers, affecting the property or right of the citizen and act in a summary way or in a new course different from the common law. It is well established that the writ lies only against a body exercising public functions of a judicial or quasi -judicial character and cannot in the nature of things be utilised to restrain legislative powers.

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Certiorari  Certiorari is an ancient prerogative writ which orders the removal of a suit from an inferior court to a superior court. It may be used before a trial to prevent an excess or abuse of jurisdiction and to remove the case for trial to a higher court. It is invoked also after trial to quash an order which has been without jurisdiction or in defiance of the rules of natural justice.  Often a writ of Certiorari is sought along with prohibition, so that not merely may an invalid act be reviewed by a superior court (certiorari), but its operation may also be restrained (prohibition).  While prohibition and certiorari are so intimately related to each other, prohibition is the converse of mandamus. The forme r is invoked to prevent a court or other authority form doing something which it has not the power to do, while the latter is called in aid to require it to do something which it is bound to do.

Quo Warranto  The writ of quo warranto is a common law process of great antiquity. According to this, the High Courts or the Supreme Court may grant an injunction to restrain a person from acting in a office to which he is not entitled and may also declare the office to be vacant.  What the court has to consider in an application for a writ of quo warranto is whether there has been usurpation of an office of a public nature and office is substantive in character, i.e., office independent in title.  It is a remedy given by law at the discretion of the Court and is not issued as a matter of course.  An application for the issue of a writ of quo warranto is maintainable only in respect of offices of public nature which are the creation of statute and not against private institutions.

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(ARTICLE 32A) CONSTITUTIONAL VALIDITY OF STATE LAWS NOT TO BE CONSIDERED IN PROCEEDINGS UNDER ARTICLE 32

(ARTICLE 33) POWER OF PARLIAMENT TO MODIFY THE RIGHTS CONFERRED BY THIS PART IN THEIR APPLICATION TO FORCES, ETC

[Constitutional validity of State laws not to be considered in proceedings under article 32.] Repealed by the Constitution (43rd Amendment) Act, 1977, (w.e.f. 13-4-1978).

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Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,— (a) the members of the Armed Forces; or (b) the members of the Forces charged with the maintenance of public order; or (c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or (d) person employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

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(ARTICLE 34) RESTRICTION ON RIGHTS CONFERRED BY THIS PART WHILE MARTIAL LAW IS IN FORCE IN ANY AREA

Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

(ARTICLE 35) LEGISLATION TO GIVE EFFECT TO THE PROVISIONS OF THIS PART

Notwithstanding anything in this Constitution,— (a) Parliament shall have, and the Legislature of a State shall not have, power to make laws— (i) with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and (ii) for prescribing punishment for those acts which are declared to be offences under this Part; (b) any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters referred to in sub-clause (i) of clause (a) or providing for punishment for any act referred to in sub-clause (ii) of that clause shall, subject to the terms thereof and to any adaptations and modifications that may be made therein under article 372, continue in force until altered or repealed or amended by Parliament. Explanation.—In this article, the expression “law in force” has the same meaning as in article 372.

(ARTICLE 36) DEFINITION In this Part, unless the context otherwise requires, “the State” has the same meaning as in Part III.

(ARTICLE 12) DEFINITIONS In this Part, unless the context otherwise requires, “the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India

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