8. FUNDAMENTAL RIGHT of the Indian .pptx

Fundamental rights

1. LokSevak FUNDAMENTAL RIGHT

2. The Fundamental Rights' are the basic rights of the people enshrined under Part III (Article 12 to 35) of the Constitution of India, which ensure the fullest physical, mental and moral development of every citizen. The word fundamental suggests that these rights are so important that the Constitution has separately listed them and made special provisions for their protection.

3. The Fundamental Rights are so important that the Constitution itself ensures that they are not violated by the State. However, like any other right, the Fundamental Rights are not absolute and inherently carry some restrictions. They generate a feeling of security amongst the minorities in the country and establish the framework of democratic legitimacy for the rule of the majority.

4. No democracy can function in the absence of basic rights such as freedom of speech and expression.

5. GENESIS OF FUNDAMENTAL RIGHTS The development of constitutionally guaranteed Fundamental Rights in India was inspired by England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man. Motilal Nehru Committee had demanded a bill of rights as far back as in 1928. The Constitution finally listed the rights that would be specially protected and called them 'Fundamental Rights.

6. DIFFERENCE BETWEEN FUNDAMENTAL RIGHTS AND ORDINARY RIGHTS Fundamental Rights are different from other legal and constitutional rights in many ways. Fundamental Rights are justiciable in nature which means that if these rights are violated by the government or anyone else, the individual has the right to directly approach the Supreme Court or the High Courts for the protection of his/her Fundamental Rights while other rights are protected through the normal legal procedure.

7. Unlike other rights, Fundamental Rights cannot be repealed or curtailed by any executive action or ordinary laws. They can only be amended by way of a Constitutional Amendment Act. Unlike other rights, Fundamental Rights cannot be suspended by any normal executive order.

8. It can only be suspended under some extraordinary circumstances like under) proclamation of National Emergency under Article 352 (except Article 20 and 21 which cannot be suspended under any circumstances and Article 19 which can be suspended only on the grounds of external aggression or war) and when martial law is force under Article 34 of the Constitution.

9. For the enforcement of other legal and Constitutional rights, the Parliament has to make some legislation to give them statutory effect. However, most of the Fundamental Rights are directly enforceable in nature. Though the state can impose reasonable restrictions on Fundamental Rights on the ground specifically mentioned in the Constitution, these restrictions can be challenged before the Supreme Court on the ground of malafide intentions.

10. No such safeguards are available to the other rights. Unlike other rights the scope of operation of the Fundamental Rights cannot be limited except by certain provisions of the Constitution like Article 31A regarding acquisition of estates, Article 31B regarding 9th Schedule of the Constitution and Article 31C regarding giving effect to DPSPs. Lastly, the Fundamental Rights are defended and protected by the Supreme Court.

11. CHARACTERISTICS OF FUNDAMENTAL RIGHTS Some Fundamental Rights are available only to the citizens while others are available to all where citizens, foreigners or legal persons like corporations or companies. They are not absolute and the state can impose reasonable restrictions on them. These restrictions are imposed as a safeguard against encroachment by others upon the similar rights of one or more citizen's.

12. However, reasonability of such restrictions can be decided by the courts. Some Fundamental Rights are available against the arbitrary action of the State only and others against the action of private individuals. Some of them place limitations on the authority of the State and therefore, they are negative in nature while others confer certain privileges on the persons and hence, they are positive in nature.

13. Fundamental Rights are justiciable in nature and allow persons to move the courts for their enforcement in case of their violation. The Supreme Court is the guarantor as well as defender of these rights and the aggrieved person can directly go to the Supreme Court for the remedies. Parliament is empowered to amend the Fundamental Rights through a constitutional amendment act without affecting the basic structure of the Constitution.

14. Therefore, they are not sacrosanct or permanent. They, however, cannot be amended by an ordinary legislation. Most of the Fundamental Rights are directly enforceable (self-executor) and do not require a separate law to bring them into force.

15. But few of them can be enforced only on the basis of a law made for giving effect to them. Only Parliament is empowered to make such law so that uniformity throughout the country is maintained.

16. CONCEPT OF STATE Article 12 defines the 'State' as: The Government and Parliament of India, The Government and Legislatures of the states, All local authorities such as Panchayats, Municipalities, etc., except Housing Boards, Any agency or private bodies working as an instrument of the State.

17. Status of Supreme Court as a Constituent of State In India it is undisputed that the judiciary while exercising its administrative powers is subjected to the Fundamental Rights, but the position while adjudicating legal disputes is not settled till now. There is no justifiable reason why the judiciary should not be included in the inclusive definition of the State' under Article 12. However, unfortunately it has been held by the Court in a number of decisions that the judiciary is not involved in the definition of State. A notable development happened with the decision of the Supreme Court in Common Cause v. Union of India (2015) wherein the Supreme Court made a remark in the following lines that "Part IV of the Constitution is as much a guiding light for the judicial organ of the state as the Executive and the Legislature, all three being integral parts of one State within Article 12 of the Constitution." Though this observation can only be treated as 'obiter, this is a novel approach to looking at the judiciary as a component of State under Article 12.

18. FATE OF LAWS INCONSISTENT WITH FUNDAMENTAL RIGHTS Article 13 deals with the laws inconsistence with Fundamental Rights: It provides shield to Fundamental Rights by declaring that all laws, which are inconsistent with or in derogation of any of the Fundamental Rights, shall be void. Here, the term law includes ordinance, order, bye-law, rule, regulation, notification, custom or usage.

19. Thus, Article 13 imposes an obligation on the State to respect and implement the Fundamental Rights and provides judiciary the power of judicial review.

20. Fate of Constitutional Amendment Under Article 368 Article 13 shall not apply to any amendment of the Constitution made under Article 368 as a constitutional amendment under Article 368 is not a law and hence, cannot be challenged. This provision was added by 24" Amendment Act, 1971. However, the Supreme Court in the Kesavananda Bharati case (1973) held that a constitutional amendment can be challenged on the ground that it violates a Fundamental Right that forms a part of the basic structure of the Constitution and hence, can be declared as void.

21. FUNDAMENTAL RIGHTS ENSHRINED IN THE CONSTITUTION Originally, seven Fundamental Rights were enshrined in the Constitution of India. Right to Equality (Articles 14-18) Right to Freedom (Articles 19-22) Right against Exploitation (Articles 23-24) Right to Freedom of Religion (Articles 25-28) Cultural and Educational Rights (Articles 29-30)

22. Right to Property (Article 31) Right to Constitutional Remedies (Article 32) However, the Right to Property was removed from the list of Fundamental Rights by the 44th Constitutional Amendment Act in the year 1978. Since then, it has been made a legal right. There are now Six Fundamental Rights.

23. Right to Equality (Articles 14-18) Article 14: Equality before Law and Equal Protection of Laws According to the Constitution, "The State shall not deny to any person equality before law or equal protection of laws within the territory of India". 'Equality before law' means that no person is above the law and all are equal before the law, every individual has equal access to the courts.

24. It is an element of the concept of Rule of Law, which involves the absence of arbitrary power, equality before the laws and primacy of the right of the individual. 'Equal protection of law' means people shall be treated equally by law under equal circumstances. This right is available to the citizens as well as the foreigners (except enemy aliens).

25. Exceptions to Right to Equality Before Law Immunities Enjoyed by the President of India and the Governor of the States: They are not answerable to any court for the exercise and performance of the powers and duties of their office. No criminal proceedings shall be instituted or continued during their term of office. No process for the arrest or imprisonment shall be issued from any court during their term of office. No civil proceedings shall be instituted during their term of office in any court in respect of any act done by them in their personal capacity, whether before or after they entered upon their office, until the expiration of two months after notice in writing has been delivered to them. Immunities Enjoyed in Case of Publication: No person shall be liable to any civil or criminal proceedings in respect of the publication of a substantially true report of any proceedings of either House of Parliament or either House of the Legislature of a State.

26. Exceptions to Right to Equality Before Law Privilege to the Legislature: According to Article 105(2), no Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof and no person shall be so liable in respect of the publication by or under the authority of either houses of the Parliament of any report, paper, votes or proceedings. No member of the Legislature of a state shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof (Article 194). Laws Giving Effect to Certain Socialistic Directive Principles: The laws made by the state for implementing the Directive Principles contained in clause (b) or clause (c) of Article 39 cannot be challenged on the ground that they are violative of Article 14. The Supreme Court held that "where Article 31C comes in, Article 14 goes out", Immunity to Foreign Diplomats: The foreign dignitaries, ambassadors, diplomats, and UNO and its agencies enjoy immunity from criminal and civil proceedings.

27. Article 15: Prohibition of Discrimination on Certain Grounds This Article says that the State shall not discriminate against any individual only on grounds of religion, race, caste, sex, place of birth or any of them with regard to access to shops, public restaurants, hotels, and places of public entertainment, 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.

28. Under Article 15(3) and (4), the government can make special provisions for women & children and for a group of citizens who are economically and socially backward or for SCs and STs for their advancement. This also brings in the concept of reservation for socially and economically backward classes.

29. Article 16: Equality of Opportunity in Public Employment The Constitution guarantees equality of opportunity in matters relating to employment or appointment to public services to all citizens. There shall be no discrimination on the basis of religion, race, caste, sex, place of birth or residence in matters relating to employment in public services.

30. However, certain clauses of this Article amount to exceptions like residence can be criteria for employment on the basis of historical aspects special favours in case of backward classes, if they are not adequately represented; religion can be the ground for discrimination for appointment in religious institutions which are take over by the state.

31. Mandal Commission The commission recommended for reservation of 27% government jobs for the Other Backward Classes (OBCs). In the famous Mandal case (1992), the Supreme Court upheld the constitutional validity of 27% reservation for the OBCs with certain conditions:

32. The creamy layer in OBC should be excluded from the list of beneficiaries of reservation. No reservation in promotions. The total reserved quota should not be more than 50%, except in some extraordinary situations.

33. In 1993, National Commission for Backward Classes was established by an act of Parliament to consider inclusions in and exclusions from the lists of castes notified as backward for the purpose of job reservation. Now, this body has been given a constitutional status by the Constitution (102 Amendment) Act, 2018.

34. Article 17: Abolition of Untouchability It abolishes 'untouchability and its practice in any form is made an offence punishable under the law. The enforcement of any disability arising out of untouchability shall be an offence punishable by law. The Supreme Court held that the right under Article 17 is available against private individuals and it is the constitutional obligation of the State to take necessary action to ensure that this right is not violated.

35. A person convicted of the offence of 'untouchability' is disqualified for election to the Parliament or the State Legislature. Article 17 imposes a duty on public servants to investigate such offences.

36. Untouchability and Civil Rights The term 'untouchability has not been defined either in the Constitution or in the Act. However, the High Court held untouchability as the practice as it had developed historically in the country" which leads to social disabilities imposed on certain classes of persons by reason of their birth in certain castes.

37. It does not cover social boycott of a few individuals. The Protection of Civil Rights Act (1955) was enacted to bring Article 17 into force. The act defines civil right as any right accruing to a person by reason of the abolition of untouchability by Article 17 of the Constitution.

38. Article 18: Abolition of Titles All titles national or foreign which create artificial distinctions in social status amongst the people have been abolished. The article states that: No title, not being a military or academic distinction, shall be conferred by the State. No citizen of India shall accept any title from any foreign State.

39. No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State. No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.

40. This provision has been included in the Constitution to do away with the titles like 'Rai Sahib', 'Rai Bahadur been conferred by the British on a few Indians as a reward for their effective co-operation to the colonial regime.

41. To recognise the meritorious service rendered by individual citizens to the country or mankind, the President of India can confer civil and military awards on those individuals for their services and achievements such as Bharat Ratna , Padma Vibhushan, Padma Shri, Param Veer Chakra, Veer Chakra etc., but these cannot be used as 'titles’.

42. Right to Freedom (Articles 19-22) Article 19 Freedom is the basic characteristic of a true democracy. The Constitution guarantees to the citizens of India a set of six freedoms: Freedom of speech and expression; Freedom to assemble peacefully without arms; Freedom to form associations or unions or cooperative societies;

43. Freedom to move freely throughout the territory of India; Freedom to reside and settle in any part of the territory of India, and Freedom to practice any profession or to carryon any occupation, trade or business. These rights are protected against state action and not private individuals.

44. These are available to citizens but not foreigners or legal entities. These rights, however, are not absolute. Each of these is subject to restrictions imposed by the State on the grounds mentioned in the Article 19 itself and not for any other reasons.

45. Right to Freedom and Ground or Restriction Freedom What Includes Freedom Ground of Restriction Freedom of Speech and Expression Right to express views, opinions, belief and convictions freely by word of mouth, writing, printing, picturing of in any other manner. Sovereignty and integrity of India, security of the states, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to an offence. Freedom of Assembly Right to hold public meetings, demonstrations and take out processions (peaceful, without arms and only on public land) but does not include the right to strike. Sovereignty and integrity of India and public order including the maintenance of traffic. Freedom of Movement Move freely throughout the territory of the country The interests of general public and the protection of interests of any Scheduled Tribes.

46. Right to Freedom and Ground or Restriction Freedom What Includes Freedom Ground of Restriction Freedom of Residence The right to reside or settle in any part of the country Interests of general public and the protection of interests of any Scheduled Tribes. Freedom of Profession The Right to practice any profession or to carry on any occupation, trade or business Interests of general public.

47. Interpretation of Right to Freedom of Speech and Expression by Supreme Court The Supreme Court held that the freedom of speech and expression includes the following: Right to propagate one's views as well as the views of others. Freedom of the press. Freedom of commercial advertisements. Right against tapping of telephonic conversaation . Right to telecast, i.e., the government has no monopoly on electronic media. Right against bundh called by a political party or organisation . Right to know about government activities. Right to remain silent. Right against imposition of pre-censorship on a newspaper. Right to demonstration or picketing, but not right to strike.

48. Article 20: Protection in Respect of Conviction for Offences This Constitutional provision assures protection against arbitrary arrest and excessive punishment to any person who is alleged to have committed an offence. To ensure a fair trial in the courts, the Constitution has provided three rights:

49. No Ex post Facto Law: No person shall be punished except for the violation of law which is in force when the crime was committed. Limitation of ex post facto laws is imposed only on criminal laws and not on civil laws or tax laws. The immunity under this provision cannot be claimed in the case of preventive detention or demanding security from a person.

50. No Self Incrimination: An accused cannot be compelled to be a witness against himself/ herself. The protection against self-incrimination includes both oral evidence and documentary evidence except the compulsory production of material objects, compulsion to give a thumb impression, specimen signature, blood specimens, compulsory exhibition of the body Further, this provision extends only to criminal proceedings and not to civil proceedings.

51. No Double Jeopardy: No person shall be punished for the same offence more than once. The protection against double jeopardy is valid only in proceedings before a court of law or a judicial tribunal and is not available in proceedings before departmental or administrative authorities.

52. Article 21: Right to Life and Personal Liberty The foremost right among rights to freedom is the right to life and personal liberty. The Constitution lays down that no person shall be deprived of his/her life or personal liberty except according to the procedure established by law.

53. It guarantees that life or personal liberty shall not be taken away without the sanction of law. It ensures that no person can be punished or imprisoned merely at the whims of some authority. He/she may be punished only for the violation of the law. Giving the widest interpretation to Art 21, the Supreme Court has declared the following rights as Fundamental Rights within the scope of Article 21:

54. Right to education Right to health Right to environment Right to shelter Right to privacy Right to speedy trial Right of the prisoners Right to legal aid

55. Right against cruel and unusual punishment Right not to be subjected to bonded labour Right to travel abroad Right against solitary confinement Right against handcuffing The Supreme Court has ruled that this right also includes right to live with human dignity, free from exploitation.

56. The court has held that the right to shelter and livelihood is also included in the right to life because no person can live without the means of living, that is, the means of livelihood.

57. Maneka Gandhi Case (1978) In Maneka Gandhi Case (1978), the Supreme Court while taking a wider interpretation of Article 21 ruled that the right to life and personal liberty of a person can be deprived by a law provided the procedure prescribed by that law is reasonable, fair and just. It means that the right is available not only against arbitrary executive action, but also against arbitrary legislative action.

58. The court also held that the right to life under Article 21 s not merely limited to animal existence or survival, but right to o live with human dignity and all those aspects of life which go on to make a man's life meaningful, complete and worth living are also included within its ambit. It also ruled that personal liberty' under Article 21 covers a variety of rights that go on to constitute the personal liberties of a man.

59. Right to Privacy Right to Privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 as a part of the freedoms guaranteed by Part III of the Constitution. This verdict was given by the Supreme Court in August 2017. This decision overruled previous decisions of the Supreme Court in M.P. Sharma and Kharak Singh case that denied privacy as a Fundamental Right.

60. Justice K.S. Puttaswamy (Retired) v. Union of India: Justice KS. Puttaswamy (Ret.) filed at petition in the Supreme Court in 2012 challenging the constitutionality of Aadhaar on the grounds of violation of right to privacy. The Government argued that there was no constitutional right of privacy in view of decisions given by the Supreme Court in M.P Sharma v. Satish Chandra and in Kharak Singh v. State of Uttar Pradesh.

61. Kharak Singh v. State of Uttar Pradesh: Kharak Singh was accused of dacoity and was let off due to lack of evidence. He filed a writ petition before the Supreme Court challenging regular surveillance by the police authorities on the grounds of infringement of his Fundamental Rights. The main question arose that whether surveillance under the Uttar Pradesh police regulations infringed the Fundamental Rights of Citizen guaranteed by the Constitution.

62. The main question arose that whether surveillance under the Uttar Pradesh police regulations infringed the Fundamental Rights of Citizen guaranteed by the Constitution. Above mentioned statement of Justice Subbarao was the base of the case Justice K.S. Puttaswamy (Ret.) vs Union of India.

63. The Supreme Court in the Aadhaar case accepted the substance of the views expressed by Justice Subba Rao in Kharak Singh case and held that the right to privacy is protected as a Fundamental Right under Article 21. The judgement given by a 9 judges constitutional bench affirms that privacy in India is a right that protects interests pertaining to the physical realm and interest pertaining to the mind.

64. Some of the recent Supreme Court judgements related to Privacy and personal liberty are: Section 377 IPC: This section of IPC was introduced in 1864 during British rule. It was used to criminalise sexual activities against the order of the nature.

65. This section states that whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. In September 2018, Supreme Court declared that the application of Section 377 to consensual homosexual sex between adults was unconstitutional, irrational, indefensible and manifestly arbitrary.

66. But it further stated that Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality. In its judgment, it said that the Right to Privacy and the protection of sexual orientation lie at the core of the Fundamental Rights guaranteed by Articles 14, 15 and 21 of the Constitution.

67. Section 497 IPC: Section 497 of the Indian Penal Code says, "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse, not amounting the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment which may extend to five years or with fine, or with both".

68. However, Adultery is no longer a crime in India as it has been scrapped by the Supreme Court. The Constitutional Bench of the Supreme Court held that treating adultery as an offence would tantamount to punishing people who are unhappy in a marital relationship.

69. The Bench stated that adultery might not be the cause of unhappy marriage; it could be the result of unhappy marriage. The SC Bench said that section 497 lacks an adequately determining principle to criminalise a consensual sexual activity and is manifestly arbitrary.

70. Section 497 is based on gender stereotypes about the role of women and violates the non-discrimination principle embodied in Article 15 of the Constitution, Section 497 is a denial of the Constitutional guarantees of dignity, liberty, privacy and sexual autonomy which are intrinsic to Article 21 of the Constitution.

71. Talaq-e- biddat : Talaq-e- biddat , also known as triple talaq or instant talaq, is a form of divorce practiced by Muslim community which allows a Muslim man to divorce his wife by stating word talaq three times in oral, written or electronic form. Petition filed by Ishrat Jahan sought a declaration from the court that section 2 of Muslim Personal Law Application Act, 1937 was unconstitutional as it violates Fundamental Rights guaranteed under Article 14, Article 15, Article 21 and Article 25 of the Constitution.

72. The Supreme Court in the Shayara Bano case held talaq-e- biddat as unconstitutional, which is a positive step towards the emancipation of Muslim women and win in the war against institutional remnants of gender inequality. In the above case, Ms. Bano argued before the Supreme Court of India that three practices, i.e., triple talaq, nikah halala, and polygamy were unconstitutional.

73. In this case, Supreme Court solely focused on the triple talaq. In August 2017, the court by a majority of 3:2, set d aside the practice of triple talaq. Of the judges who voted against the practice, two held it to be unconstitutional, while third reiterated that such practice was impermissible under Islamic law. Majority judgement held triple talaq to be unconstitutional under article 14 read with article 13(1).

74. In this regard, the court held that the practice had been sanctioned as a matter of personal law by the Muslim Personal Law ( Shariat ) Application Act, 1937. The Court clarified that "an action that is arbitrary, must necessarily involve negation of equality" and determined that the existing triple talaq provisions led to the marital tie being broken capriciously without any attempt at reconciliation so as to save it. This arbitrariness violates Article 14.

75. The Court concluded that the 1937 Act is void to the extent that it recognizes and enforces triple talaq, on the basis that as per Article 13(1) all laws in force immediately before the commencement of the present Constitution (which includes the 1937 Act) shall be void in so far as they are inconsistent with the Fundamental Rights set out in the Constitution.

76. The Court also considered whether triple talaq is protected under Article 25 but, following a review of the relevant precedents and Islamic scholarship, concluded that it is not essential to the practice of Islam.

77. Article 21A: Right to Education By the 86th Constitutional Amendment Act of 2002, a new Article 21A has been added after Article 21. By this Amendment Act, right to education has been made a Fundamental Right and has been deleted from the list of Directive Principles of State Policy.

78. According to it, "The State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may by law determine". Further, a clause has been introduced in Article 51A to ensure responsibility of the parents or guardians to provide opportunities for education to their child or ward between the age of six to fourteen years.

79. Right of Children to Free and Compulsory Education (RTE) Act, 2009 This Act was enacted in pursuance of Article 21A and seeks to provide that every child has a right to access full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards. It makes it mandatory for all schools (government and private) except private unaided minority schools to reserve 25% of their seats for children belonging to "weaker section and disadvantaged groups".

80. Article 22: Protection Against Arrest and Detention in Certain Cases The Constitution guarantees certain rights to the arrested person. As per the provision, no person can be arrested and/or be detained in custody without being informed of the grounds for detention.

81. He/she has the right to consult and be defended by a lawyer of his/her choice and must be produced before the nearest magistrate within a period of twenty-four hours of arrest. If the magistrate does not authorise further detention, he/she should be released.

82. These safeguards, however, are not available to foreigners as well as to those citizens detained under the Preventive Detention Act. It also does not cover arrest under the order of a court, civil arrest, arrest on failure to pay the income tax and deportation of an alien.

83. Preventive Detention: Ordinarily, a person would be arrested after he or she has reportedly committed some offence. However, sometimes a person can be arrested simply out of an apprehension that he or she is likely to engage in unlawful activity and imprisoned for some time without following the above mentioned procedure. This is known as preventive detention.

84. This preventive detention can be extended only for three months. After three months such a case is brought before an advisory board for review. On the face of it, preventive detention looks like an effective tool in the hands of the government to deal with anti-social elements or subversives.

85. Since 1950, the following preventive detention acts have been passed: Preventive Detention Act, 1950 (Repealed) Maintenance of Internal Security Act, 1971 (MISA) (Repealed) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA).

86. National Security Act, 1980 Prevention of Terrorism Act, 2002 (POTA) (Repealed) Terrorist & Disruptive Activities (Prevention) Act, 1987 (TADA) (Repealed) Essential Services Maintenance Act, (ESMA)

87. Right Against Exploitation (Articles 23-24) The right against exploitation is one of the most vital Fundamental Rights which aim at protecting citizens from being subjugated to the environment domestic and work hazards. Articles 23 and 24 of the Indian Constitution, safeguard women and children and others against exploitation of various forms.

88. Article 23: Prohibition of Traffic in Human Beings and Forced Labour Traffic in human beings means the sale and purchase of human beings as goods and commodities for immoral purposes such slavery and prostitution. Forced labour means compulsory work without remuneration. These were the way of exploitation of human being by a powerful section of the society such as landlords, moneylenders and other wealthy persons in the past.

89. Some forms of bonded labour still continue in the country, especially in brick kiln work. It has now been declared a crime and it is punishable. Parliament has enacted the Immoral Traffic (Prevention) Act, 1956 and the Bonded Labour System (Abolition) Act, 1976 to punish for such offences.

90. However, Article 23 permits the State to impose compulsory service for public purposes, for example, military service or social service, for which it is not bound to pay.

91. Article 24: Prohibition of Employment of Children in Hazardous Jobs The Constitution also provides safeguards for children. It bans the employment of children below the age of fourteen years in any factory, mine of hazardous occupations. With child labour being made illegal and right to education becoming Fundamental Right for children, this right against exploitation has become more meaningful.

92. The Employment of Children Act, 1938, the Child Labour (Prohibition and Regulation) Act, 1986, the Factories Act, 1948, The Mines Act, 1953 and similar other Acts prohibit the employment of children below 14 years of age.

93. Child Labour (Prohibition and Regulation) Amendment Act, 2016 It amended the Child Labour (Prohibition and Regulation) Act, 1986 to widen the scope of the law against child labour and stricter punishments for violations. Key Provisions The Act calls for complete ban on employment of children below 14 years in all occupations and enterprises, except those run by his or her own family. It defines children between 14 to 18 years as adolescents and bars their employment in any hazardous occupations. It makes child labour a cognizable offence attracting a jail term of up to two years and penalty up to fifty thousand rupees. The act has a provision of Rehabilitation Fund for the rehabilitation of children.

94. Right to Freedom of Religion (Articles 25-28) According to the Constitution, everyone enjoys the right to follow the religion of his or her choice. This freedom is considered as a hallmark of democracy and it has been provided under Articles 25, 26, 27 and 28.

95. Article 25: Freedom of Conscience and Free Profession, Practice and Propagation of Religion In India, everyone is free to choose a religion and practice that religion and Article 25 bestows rights upon an individual for freedom of religion. Freedom of religion also includes the freedom of conscience.

96. This means that a person may choose any religion or may choose not to follow any religion. Freedom of religion includes the freedom to profess, follow and propagate any religion. Freedom of religion is subject to certain limitations. The government can impose restrictions on the practice of freedom of religion in order to protect public order, morality and health.

97. This means that the freedom of religion is not an absolute right. The government can interfere in religious matters for rooting out certain social evils and can regulate or restrict any secular activity associated with religious practices. For example, in the past, the government has taken steps banning practices like sati, bigamy or human sacrifice.

98. Such restrictions cannot be opposed in the name of interference in the right to freedom of religion. The Constitution has also guaranteed the right to propagate one's religion. This includes persuading people to convert from one religion to another. However, it does not allow forcible conversions.

99. It only gives us the right to spread information about our religion and thus attract others to it. The rights under this Article are available to all persons (citizen as well as non citizen). The term Hindu mentioned in the article also includes Sikh, Jains and Buddhists.

100. Article 26: Freedom to Manage Religious Affairs It is a collective right guaranteed to every religious community/denomination or any of its sections to establish and maintain institutions for religious and charitable purposes; manage its own affairs in matters of religion;

101. own and acquire movable and immovable property; and administer such property in accordance with law. The rights under Article 26 are also subject to public order, morality and health.

102. Religious Denomination As per the Supreme Court directive a religious denomination must be a collection of individuals who have a system of beliefs and a common organisation which is designated by a distinctive name.

103. Article 27: Freedom from Taxation for Promotion of a Religion It states 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.

104. This means that the State should not spend the public money collected by way of tax for the promotion or maintenance of any particular religion. The State is barred from favouring , patronizing and supporting one religion over the other, but free to promote or maintain all religions equally. It prohibits only levy of a tax and not a fee as the purpose of a fee is to control the secular administration of religious institutions only.

105. Article 28: Freedom from Attending Religious Instruction It states that no religious instruction shall be provided in any educational institution wholly maintained out of State funds. However, this clause is not applicable on 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.

106. Further, no person attending any educational institution recognized by the State or receiving aid out of State funds shall be required to take part in any religious instruction or to attend any religious worship unless such person or, if such person is a minor, his guardian has given his consent.

107. Types of Educational Institutions as per Article 28 Type Scope of Religious Activity Institutions wholly maintained by the State Religious instructions is completely prohibited Institutions administered by the state but established under any endowment or trust Religious instruction is permitted Institutions recognized by the State Religious instruction is permitted, but consent is required Institutions receiving aid from the States

108. Sabarimala Issue Sabarimala is a shrine in Kerala which hosts a temple of Lord Ayyappa , which is the celibate form of Lord Kartikeya. Owing to the special celibate character of the deity, women of the menstruating age group of 10-50 years were prohibited from entering the temple.

109. This practice of prohibiting women of a particular age group from entering the temple was challenged as discriminatory and violative of the right of equality of women of that age group in the Indian Young Lawyers Association The State of Kerala case.

110. On September 28, 2018, the Supreme Court pronounced the verdict in favour of the petitioners, holding that, the exclusionary practice being followed at the Sabrimala temple violates the right of Hindu women to freely practice their religion and exhibit their devotion towards Lord Ayyappa . This denial denudes them of their right to worship.

111. The right to practice religion under Article 25(1) is equally available to both men and women of all age groups professing the same religion. Further, the impugned Rule 3(b) of the 1965 Rules, framed under the Kerala Hindu Places of Public Worship (Authorization of Entry)

112. Act, 1965 (1965 Act), that stipulates exclusion of entity of women of the age group of 10 to 50 years, is a clear violation of the right of Hindu women to practice their religious beliefs which, in consequence, makes their Fundamental Right of religion under Article 25(1) a dead letter. In this way the Court allowed the writ petition and granted women of the said age group to enter the temple and offer worship.

113. The following questions were available for adjudication, the answers to which went on to constitute the logical framework for the judgement: Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to "discrimination" and thereby violates the very core of Articles 14, 15 and 17 and not protected by "morality" as used in Articles 25 and 26 of the Constitution?

114. Whether the practice of excluding such women constitutes an "essential religious practice" under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?

115. Whether Rule 3 of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, permits religious denomination to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex?

116. Whether Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 of the 1965 Act, which is the source of the practice of exclusion of women of the said age group is ultra vires and, if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution?

117. While four out of the five judges on the bench concurred with the opinion of the CJI, the only woman judge of the bench Justice Indu Malhotra dissented. The important grounds on which her opinion was based are as follows: The equality doctrine enshrined under Article 14 does not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith in accordance with the tenets of their religion.

118. Constitutional Morality in a secular polity would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practice their faith and belief in accordance with the tenets of their religion, irrespective of whether the practice is rational or logical.

119. The Respondents and the Intervenors have made out a plausible case that the Ayyappans or worshippers of the Sabarimala Temple satisfy the requirements of being a religious denomination, or sect thereof, which is entitled to the protection provided by Article 26.

120. This is a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction. The limited restriction on the entry of women during the notified age-group does not fall within the purview of Article 17 of the Constitution.

121. Rule 3(b) of the 1965 Rules is not ultra vires Section 3 of the 1965 Act, since the proviso carves out an exception in the case f public worship in a temple for the benefit of any religious denomination or sect thereof, to manage their affairs in matters of religion. The aforesaid observations of Justice Malhotra were largely made the basis of several review petitions which were filed in the aftermath of the judgment following a spree of protests and demonstrations by various groups against the judgment.

122. Cultural and Educational Rights (Articles 29 & 30) These rights protect and guarantee certain cultural and educational rights to various cultural, religious and linguistic minorities located in India.

123. Article 29: Protection of Interests of Minorities The Constitution provides necessary guarantees to minorities to preserve, maintain and promote their culture and language. These rights ensure that minorities will be given assistance by the state in the preservation of their language and culture.

124. The ideal before the state is to preserve and propagate the composite culture of the country. This Article states that: Any section of citizens residing in any part of India having a distinct language, script or culture of its own has right to conserve the same [Article 29(1)].

125. Admissions are not to be denied to any citizen into any educational institution maintained by the State or receiving aid out of the State funds, on the ground only of religion, race, caste, language or any of them [Article 29(2)]. Under this, the first provision guarantees the rights to the communities and the second one is for the individuals.

126. Supreme Court's views on Article 29 The words 'section of citizens' in the Article includes minorities as well as the majority. The right to conserve the language includes the right to agitate for the protection of the language. The political promises or speeches made for the conservation of the language of a section of the society do not amount to corrupt practice under the Representation of the People Act, 1951.

127. Article 30: Right of Minorities to Establish Educational Institutions The Constitution allows minorities to establish and maintain educational institutions of their own. It also provides that the state shall not discriminate against any educational institution while granting financial aid on the grounds that it is being run by a minority community. It further states that:

128. All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. During compulsory acquisition of any property of any minority educational institution, the State shall ensure that the amount fixed by or determined for the acquisition of such property is such that it would not restrict or abrogate the right guaranteed under that clause.

129. In granting aid to educational institutions, the State shall not discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. The protection under Article 30 is confined only to minorities (religious or linguistic) and does not extend to any other section of citizens. It also includes the right of a minority to impart education to its children in its own language.

130. Minority Educational Institutions Types Extent of State Control Institutions that seek recognition as well as aid from the ‘State. Subject to the regulatory power of the state with regard to the syllabus prescribed, academic standards, discipline, sanitation, employment of teaching staff, etc. Institutions that seek only recognition from the State and not aid. Same as above. Institutions that neither seek recognition nor aid from the State Free to administer the affairs, but subject to the operation of general laws like, contract law, labour law, industrial law, tax law, economic regulations, etc.

131. Right to Constitutional Remedies (Article 32) Part III of the Constitution provides for legal remedies for the protection of Fundamental Rights against their violation by the State or other institutions/individuals. Right to constitutional remedies is the means through which this is to be achieved.

132. Dr. Ambedkar considered the right to constitutional remedies as heart and soul of the constitution". It entitles the citizens of India to move the Supreme Court or High Courts for the enforcement of these rights. The State is forbidden from making any law that may be in conflict with the Fundamental Rights.

133. The Supreme Court under Article 32 and the High Court under Article 226 can issue orders and give directives to the government for the enforcement of Fundamental Rights. Therefore, the Supreme Court acts as a defender and guarantor of the Fundamental Rights of the citizen.

134. Parliament can confer power to any other court to issue orders and writs of all types, but no such provisions have been made so far. For the purpose of enforcement of the Fundamental Rights, the courts can issue various special orders known as writs.

135. Types of Writs Habeas Corpus: Habeas Corpus is a Latin term literally meaning to have the body of. Through this writ, the Court can cause any person who has been detained or imprisoned to be physically brought before the Court. The Court then examines the reason of his detention and if there is no legal justification of his detention, he can be set free.

136. Thus, the writ of Habeas Corpus is called bulwark of individual liberty against arbitrary detention. A general rule of filing the petition is that a person whose right has been infringed must file a petition. But Habeas Corpus is an exception and anybody on behalf of the detainee can file a petition.

137. The writ of Habeas Corpus is applicable to preventive detention also. This writ can be issued against both public authorities as well as private individuals. This writ is not issued in the cases where detention is lawful, the proceeding is for contempt of a Legislature or a Court, detention is by a competent Court, and detention is outside the jurisdiction of the Court.

138. Mandamus: literally means 'we command". This writ is a command issued by the Court to a public official, public body, corporation, inferior court, tribunal or government asking them to perform their duties which they have refused to perform. Due to this, Mandamus is also called a 'wakening call' as it awakes the sleeping authorities to perform their duties.

139. Mandamus, thus, demands activity and sets the authority in action. The writ of Mandamus cannot be issued against the following: A private individual or private body To enforce departmental instruction that does not possess statutory force If the duty in question is discretionary and not mandatory

140. The President or the Governors of States The Chief Justice acting in a judicial capacity To enforce some kind of private contract A petition for writ of Mandamus can be filed by any person who seeks a legal duty to be performed by a person or a body. Such a person must have real or special interest in the subject matter and must have the legal right to do so.

141. Prohibition: Prohibition literally means "to forbid’. The writ of Prohibition is used by the Supreme Court and High Courts to prohibit the lower Courts such as Special Tribunals, Magistrates, Commissioners, and other judicial officers who are doing something which exceeds their jurisdiction or acting contrary to the rule of natural justice.

142. It can be issued only against judicial and quasi judicial authorities. It is not available against administrative authorities, legislative bodies, and private individuals or bodies. While Mandamus directs activity, Prohibition directs inactivity.

143. Certiorari: Certiorari means to 'certify. It is a writ that orders to move a suit from a lower Court to a higher Court. It is issued by a higher Court to a lower Court or Tribunal either to transfer a case pending with it to itself or quash its order. This is generally done because the superior Court believes that either the inferior Court had no jurisdiction or that either committed an error of law.

144. Thus, unlike Prohibition, which only preventive, Certiorari is a kind of curative writ. Before 1991, the writ of writ of Certiorari could be issued only against judicial and quasi judicial authorities and not against administrative authorities.

145. Quo-Warranto: Quo warranto means 'by what warrant?". This writ is issued to inquire into the legality of the claim of a person or public office. It restrains the person or authority to act in an office which he/she is not entitled to and thus stops usurpation of public office by anyone.

146. The writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution. It cannot be issued in cases of ministerial or private office. Unlike the other four writs, this can be sought by any interested person and not necessarily by the aggrieved person.

147. These writs go a long way in protecting the rights of the individuals against encroachment by the legislature, the executive or any other authority. Thus, if the Fundamental Rights are the cornerstone of our democracy, then the Right to Constitutional Remedies is the soul of the part III of the Constitutions.

148. Availability of Fundamental Rights to Citizens and Foreigners Available only to citizens Article 15, 16, 19, 29, 30 Available to both citizens and foreigners Article 14, 20, 21, 21A, 22, 23, 24, 25, 26, 27, 28 Note:- Foreigners do not include enemy aliens. Article 16 cannot be conferred to overseas Citizens of India.

149. FUNDAMENTAL RIGHTS AND ARMED FORCES Under Article 33, the Parliament is empowered to restrict or abrogate the Fundamental Rights of the members of the armed forces, para-military forces, police forces, intelligence agencies and analogous forces. This is to ensure the proper discharge of their duties and the maintenance of discipline among them.

150. Only Parliament is empowered to make laws under this Article and any such law made by Parliament cannot be challenged in any court on the ground of contravention of any of the Fundamental Rights. The law enacted under Article 33 can also exclude the court martial from the writ jurisdiction of the Supreme Court and the High Courts, so far as the enforcement of Fundamental Rights is concerned.

151. Fundamental Rights and Martial Law Article 34 provided for restriction on Fundamental Rights while martial law is in force in any area. It confers rights on Parliament to indemnify any person in the service of the Union 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,

152. 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. The Act of Indemnity enacted by the Parliament cannot be challenged in any court on the ground of contravention of any of the Fundamental Rights.

153. The expression 'martial law has not been defined anywhere in the Constitution and it has been borrowed from English common law which means 'military rule’. The Supreme Court has declared that the declaration of martial law does not ipso facto result in the suspension of the writ of habeas corpus.

154. Armed Forces Special Power Act (AFSPA) AFSPA give the armed forces the special power to maintain public order in "disturbed areas". The Act under section (4) allows any commissioned, non-commissioned officer or any other officer of equivalent rank in the armed forces to search, arrest or shoot any person without a warrant and section (6) of the Act has provisions that an armed person cannot be challenged in the court for their actions. Critical analysis of the act puts light on the fact that, this act violates the following Fundamental Rights: Right to life; Prohibiting discrimination on the basis of religion, nationality, race and colour ; Protection of personal dignity; Prohibiting torture and cruel treatment. The state has its own limitations and is absolutely justified in taking precautionary measures in order to overcome terrorism for protecting its civilians, maintain law and order and bring culprits of such offences to justice. But in order to serve justice, it should always be in a reasonable and humane manner. Legislation like AFSPA need to be reviewed, modified or repealed if necessary for their utility and their impact over the issue of human rights of the public at large in the area of their applicability.

155. EFFECTING CERTAIN FUNDAMENTAL RIGHTS Article 35 lays down that only the Parliament is empowered to make laws, to give effect to certain specified Fundamental Rights with respect to any of the matter under Article 16(3), Article 32(3), Article 33 and Article 34 and State Legislatures do not enjoy that right.

156. This provision has been incorporated to ensure uniformity throughout India with regard to the nature of those Fundamental Rights and punishment for their infringement.

157. RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES It is possible to see both Fundamental Rights and Directive Principles as complementary to each other. Fundamental Rights restrain the government from doing certain things while Directive Principles exhort the government to do certain things. Fundamental Rights mainly protect the rights of individuals while Directive Principles ensure the well-being of the entire society.

158. However, at times, when the government intends to implement Directive Principles of State Policy, it can come in conflict with the Fundamental Rights of the citizen. In this conflict Fundamental Rights always supersede except in the case of article 39B and 39C.

159. The Supreme Court in Kesavananda Bharati case also held that the Parliament is empowered to amend Fundamental Rights (or any other provisions of the constitution) to give effect to DPSP or for any other purpose provided it should not violate doctrine of the 'basic structure of the Constitution.

160. Constitutional Provisions Related to Fundamental Rights Article Provision 12 Definition of State. 13 Laws inconsistent with or in derogation of the Fundamental Rights. 14 Equality before law. 15 Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. 16 Equality of opportunity in matters of public employment. 17 Abolition of Untouchability. 18 Abolition of titles. 19 Protection of certain rights regarding freedom of speech, etc. 20 Protection in respect of conviction for offences. 21 Protection of life and personal liberty. 21A Right to education. 22 Protection against arrest and detention in certain cases.

161. Constitutional Provisions Related to Fundamental Rights Article Provision 23 Prohibition of traffic in human beings and forced labour . 24 Prohibition of employment of children in factories, etc. 25 Freedom of conscience and free profession, practice and propagation of religion. 26 Freedom to manage religious affairs. 27 Freedom as to payment of taxes for promotion of any particular religion. 28 Freedom as to attendance at religious instruction or religious worship in certain institutions. 29 Protection of interests of minorities. 30 Right of minorities to establish and administer educational institutions. 31 Compulsory acquisition of property. (Repealed by the 44h Constitutional Amendment Act, 1978) 31A Saving of laws providing for acquisition of estates, etc. 31B Validation of certain Acts and Regulations. 31C Saving of laws giving effect to certain directive principles. 31D Saving of laws in respect of anti-national activities. (Repealed Amendment Act, 1977)

162. Constitutional Provisions Related to Fundamental Rights Article Provision 32 Remedies for enforcement of rights conferred by this Part. 32A Constitutional validity of State laws not to be considered in proceedings under Article 32. (Repealed by the 43rd Constitutional Amendment Act, 1977) 33 Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc. 34 Restriction on rights conferred by this Part while martial law is in force in any area. 35 Legislation to give effect to the provisions of this Part.