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Fundamental Rights

Study Material > Polity
  • Fundamental Rightsis acharter of rights contained in Part III of Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India.
  • Part III of the Constitution is rightly described as the Magna Carta of India.
  • The Fundamental Rights are guaranteed by the Constitution to all persons without any discrimination.
  • They uphold the equality of all individuals, the dignity of the individual, the larger public interest and unity of the nation.
  • The Fundamental Rights are meant for promoting the ideal of political democracy.
  • They prevent the establishment of an authoritarian and despotic rule in the country, and protect the liberties and freedoms of the people against the invasion by the State.
  • They operate as limitations on the tyranny of the executive and arbitrary laws of the legislature. In short, they aim at establishing ‘a government of laws and not of men’.
  • The Fundamental Rights are named so because:
    1. They are guaranteed and protected by the Constitution, which is the fundamental law of the land.
    2. They are most essential for the all-round development (material, intellectual, moral and spiritual) of the individuals.
  • The Constitution provided for six Fundamental Rights viz,
    1. Right to equality (Articles 14– 18)
    2. Right to freedom (Articles 19–22).
    3. Right against exploitation (Articles 23–24).
    4. Right to freedom of religion (Articles 25–28).
    5. Cultural and educational rights (Articles 29–30)
    6. Right to constitutional remedies (Article 32).
  • The right to property was deleted from the list of Fundamental Rights by the 44th Amendment Act, 1978. It is made a legal right under Article 300-A in Part XII of the Constitution. So at present, there are only six Fundamental Rights.

Important Facts about Fundamental Rights

  • Some of them are available only to the citizens while others are available to all persons whether citizens, foreigners or legal persons like corporations or companies.
  • They are not absolute but qualified. The state can impose reasonable restrictions on them.
  • Some of them are negative in character, that is, place limitations on the authority of the State, while others are positive in nature, conferring certain privileges on the persons.
  • They are justiciable, means allowing persons to move the courts for their enforcement, if and when they are violated.
  • They are defended and guaranteed by the Supreme Court. Hence, the aggrieved person can directly go to the Supreme Court, not necessarily by way of appeal against the judgement of the high courts.
  • They are not sacrosanct or permanent. The Parliament can curtail or repeal them but only by a constitutional amendment act and not by an ordinary act. Moreover, this can be done without affecting the ‘basic structure’ of the Constitution.
  • They can be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21.
  • Further, the six rights guaranteed by Article 19 can be suspended only when emergency is declared on the grounds of war or external aggression (i.e., external emergency) and not on the ground of armed rebellion (i.e., internal emergency).
  • Their application can be restricted while martial law is in force in any area. Martial law means ‘military rule’ imposed under abnormal circumstances to restore order (Article 34). It is different from the imposition of national emergency.
  • Most of them are directly enforceable (self-executory) while a few of them can be enforced on the basis of a law made for giving effect to them. Such a law can be made only by the Parliament and not by state legislatures so that uniformity throughout the country is maintained (Article 35).

DEFINITION OF STATE

  • Article 12 has defined the term for the purposes of Part III.
  • According to it, the State includes the following:
    1. Government and Parliament of India, that is, executive and legislative organs of the Union government.
    2. Government and legislature of states, that is, executive and legislative organs of state government.
    3. All local authorities, that is, municipalities, panchayats, district boards, improvement trusts, etc.
    4. All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.
  • Thus, State has been defined in a wider sense so as to include all its agencies. It is the actions of these agencies that can be challenged in the courts as violating the Fundamental Rights.
  • According to the Supreme Court, even a private body or an agency working as an instrument of the State falls within the meaning of the ‘State’ under Article 12.

LAWS INCONSISTENT WITH FUNDAMENTAL RIGHTS

  • Article 13 declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void. In other words, it expressively provides for the doctrine of judicial review.
  • This power has been conferred on the Supreme Court (Article 32) and the high courts (Article 226) that can declare a law unconstitutional and invalid on the ground of contravention of any of the Fundamental Rights.
  • The term ‘law’ in Article 13 has been given a wide connotation so as to include the following:
    1. Permanent laws enacted by the Parliament or the state legislatures.
    2. Temporary laws like ordinances issued by the president or the state governors.
    3. Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-law, rule, regulation or notification and
    4. Non-legislative sources of law, that is, custom or usage having the force of law.
  • Thus, not only a legislation but any of the above can be challenged in the courts as violating a Fundamental Right and hence, can be declared as void.
  • Further, Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged. However, the Supreme Court held in the Kesavananda Bharati case2 (1973) 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.

RIGHT TO EQUALITY

  • Equality before Law and Equal Protection of Laws
  • Article 14 says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
  • This provision confers rights on all persons whether citizens or foreigners.
  • Moreover, the word ‘person’ includes legal persons, viz, statutory corporations, companies, registered societies or any other type of legal person.
  • The concept of ‘equality before law’ is of British origin while the concept of ‘equal protection of laws’ has been taken from the American Constitution.
  • The first concept connotes:
    1. The absence of any special privileges in favour of any person,
    2. The equal subjection of all persons to the ordinary law of the land administered by ordinary law courts, and
    3. No person (whether rich or poor, high or low, official or non-official) is above the law.
  • The second concept, on the other hand, connotes:
    1. The equality of treatment under equal circumstances, both in the privileges conferred and liabilities imposed by the laws,
    2. The similar application of the same laws to all persons who are similarly situated, and
    3. The like should be treated alike without any discrimination.
  • Thus, the former is a negative concept while the latter is a positive concept. However, both of them aim at establishing equality of legal status, opportunity and justice. 

Exceptions to Equality

  • The rule of equality before law is not absolute and there are constitutional and other exceptions to it. These are mentioned below:
    1. The President of India and the Governor of States enjoy the following immunities (Article 361):
      1. The President or the Governor is not answerable to any court for the exercise and performance of the powers and duties of his office.
      2. No criminal proceedings shall be instituted or continued against the President or the Governor in any court during his term of office.
      3. No process for the arrest or imprisonment of the President or the Governor shall be issued from any court during his term of office.
      4. No civil proceedings against the President or the Governor shall be instituted during his term of office in any court in respect of any act done by him in his personal capacity, whether before or after he entered upon his office, until the expiration of two months next after notice has been delivered to him.
    2. No person shall be liable to any civil or criminal proceedings in any court in respect of the publication in a newspaper (or by radio or television) of a substantially true report of any proceedings of either House of Parliament or either House of the Legislature of a State (Article 361-A).
    3. 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 (Article 105).
    4. 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).
    5. Article 31-C is an exception to Article 14. It provides that the laws made by the state for implementing the Directive Principles contained in clause (b) or clause (c) of Article 39 cannot be challenged on the ground that they are violative of Article 14. The Supreme Court held that “where Article 31-C comes in, Article 14 goes out”.
    6. The foreign sovereigns (rulers), ambassadors and diplomats enjoy immunity from criminal and civil proceedings.
    7. The UNO and its agencies enjoy the diplomatic immunity.

Prohibition of Discrimination on Certain Grounds

  • Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth.
  • The two crucial words in this provision are ‘discrimination’ and ‘only’.
  • The word ‘discrimination’ means ‘to make an adverse distinction with regard to’ or ‘to distinguish unfavourably from others’.
  • The use of the word ‘only’ connotes that discrimination on other grounds is not prohibited.
  • The second provision of Article 15 says that no citizen shall be subjected to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex, or place of birth with regard to
    1. Access to shops, public restaurants, hotels and places of public entertainment; or
    2. The use of wells, tanks, bathing ghats, road and places of public resort maintained wholly or partly by State funds or dedicated to the use of general public.
  • This provision prohibits discrimination both by the State and private individuals, while the former provision prohibits discrimination only by the State.
  • There are three exceptions to this general rule of non-discrimination:
    1. The state is permitted to make any special provision for women and children. For example, reservation of seats for women in local bodies or provision of free education for children.
    2. The state is permitted to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes. For example, reservation of seats or fee concessions in public educational institutions.
    3. The state is empowered to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes or the scheduled tribes regarding their admission to educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions.
  • The last provision was added by the 93rd Amendment Act of 2005.

Equality of Opportunity in Public Employment

  • Article 16 provides for equality of opportunity for all citizens in matters of employment or appointment to any office under the State.
  • No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds of only religion, race, caste, sex, descent, place of birth or residence.
  • There are three exceptions to this general rule of equality of opportunity in public employment:
    1. Parliament can prescribe residence as a condition for certain employment or appointment in a state or union territory or local authority or other authority.
    2. The State can provide for reservation of appointments or posts in favour of any backward class that is not adequately represented in the state services.
    3. A law can provide that the incumbent of an office related to religious or denominational institution or a member of its governing body should belong to the particular religion or denomination.

Abolition of Untouchability

  • Article 17 abolishes ‘untouchability’ and forbids its practice in any form. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law.
  • This is one of the few fundamental rights available against individuals.
  • To make Untouchability law further strong, parliament passed Untouchability (offences) Act in 1955 which came into force on 1st June, 1955. This act was further amended and renamed in 1976 as Protection of Civil Rights Act, 1955. This act lays down that whatever is open to general public should be open to the members of the scheduled castes. No shopkeeper can refuse to sell them; no person may refuse to render any service to any person on the ground of untouchability. The act made provision for imprisonment and fine.
  • In 1976, the Untouchability (Offences ) Act, 1955 has been  comprehensively amended and renamed as the Protection of Civil Rights Act, 1955 to enlarge the scope and make penal provisions more stringent.
  • 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.
  • A person convicted of the offence of ‘untouchability’ is disqualified for election to the Parliament or state legislature.

Abolition of Titles

  • Article 18 abolishes titles and makes four provisions in that regard:
    1. It prohibits the state from conferring any title (except a military or academic distinction) on anybody, whether a citizen or a foreigner.
    2. It prohibits a citizen of India from accepting any title from any foreign state.
    3. A foreigner holding any office of profit or trust under the state cannot accept any title from any foreign state without the consent of the president.
    4. No citizen or foreigner holding any office of profit or trust under the State is to accept any present, emolument or office from or under any foreign State without the consent of the president.
  • However, Certain titles like Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Sri etc do not amount to ‘titles’ within the meaning of Article 18 and thus the state can accord such titles to eminent personalities.
  • Certain accolades awarded by foreign States like “Legion de Honour” awarded by France is not considered to be a title. Therefore, they are not violative of Article 18.

RIGHT TO FREEDOM

  • Protection of Six Rights: Article 19 guarantees to all citizens the six rights. These are:
    1. Right to freedom of speech and expression.
    2. Right to assemble peaceably and without arms.
    3. Right to form associations or unions or co-operative societies.
    4. Right to move freely throughout the territory of India.
    5. Right to reside and settle in any part of the territory of India.
    6. Right to practice any profession or to carry on any occupation, trade or business.
  • Originally, Article 19 contained seven rights. But, the right to acquire, hold and dispose of property was deleted by the 44th Amendment Act of 1978.
  • These six rights are protected against only state action and not private individuals.
  • These rights are available only to the citizens and to shareholders of a company but not to foreigners or legal persons like companies or corporations, etc.
  • The State can impose ‘reasonable’ restrictions on the enjoyment of these six rights only on the grounds mentioned in the Article 19 itself and not on any other grounds.
  • Freedom of Speech and Expression : It implies that every citizen has the right to express his views, opinions, belief and convictions freely by word of mouth, writing, printing, picturing or in any other manner. The Supreme Court held that the freedom of speech and expression includes the following:
    1. Right to propagate one’s views as well as views of others.
    2. Freedom of the press.
    3. Freedom of commercial advertisements.
    4. Right against tapping of telephonic conversation.
    5. Right to telecast, that is, government has no monopoly on electronic media.
    6. Right against bundh called by a political party or organisation.
    7. Right to know about government activities.
    8. Freedom of silence.
    9. Right against imposition of pre-censorship on a newspaper.
    10. Right to demonstration or picketing but not right to strike.
  • The State can impose reasonable restrictions on the exercise of the freedom of speech and expression on the grounds of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to an offence.

Freedom of Assembly:

  • Every citizen has the right to assemble peaceafuly and without arms.
  • It includes the right to hold public meetings, demonstrations and take out processions.
  • This freedom can be exercised only on public land and the assembly must be peaceful and unarmed.
  • This right does not include the right to strike.
  • The State can impose reasonable restrictions on the exercise of right of assembly on two grounds, namely, sovereignty and integrity of India and public order including the maintenance of traffic in the area concerned.
  • Freedom of Association :All citizens have the right to form associations or unions or co-operative societies.
  • It includes the right to form political parties, companies, partnership firms, societies, clubs, organisations, trade unions or any body of persons.
  • Reasonable restrictions can be imposed on the exercise of this right by the State on the grounds of sovereignty and integrity of India, public order and morality.

Freedom of Movement:

  1. This freedom entitles every citizen to move freely throughout the territory of the country.
  2. This right underline the idea that India is one unit so far as the citizens are concerned. Thus, the purpose is to promote national feeling and not parochialism.
  3. The grounds of imposing reasonable restrictions on this freedom are two, namely, the interests of general public and the protection of interests of any scheduled tribe.
  4. The entry of outsiders in tribal areas is restricted to protect the distinctive culture, language, customs and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation.
  5. The freedom of movement has two dimensions, viz, internal (right to move inside the country) and external (right to move out of the country and right to come back to the country). Article 19 protects only the first dimension. The second dimension is dealt by Article 21 (right to life and personal liberty).

Freedom of Residence:

  • Every citizen has the right to reside and settle in any part of the territory of the country.
  • This right has two parts:
    1. The right to reside in any part of the country, which means to stay at any place temporarily, and
    2. The right to settle in any part of the country, which means to set up a home or domicile at any place permanently.
  • This right is intended to remove internal barriers within the country or between any of its parts. This promotes nationalism and avoids narrow mindedness.
  • The State can impose reasonable restrictions on the exercise of this right on two grounds, namely, the interest of general public and the protection of interests of any scheduled tribes.
  • The right of outsiders to reside and settle in tribal areas is restricted to protect the distinctive culture, language, customs and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation.

Freedom of Profession:

  • All citizens are given the right to practise any profession or to carry on any occupation, trade or business.
  • This right is very wide as it covers all the means of earning one’s livelihood. The State can impose reasonable restrictions on the exercise of this right in the interest of the general public.
  • Further, the State is empowered to:
    1. prescribe professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business; and
    2. Carry on by itself any trade, business, industry or service whether to the exclusion (complete or partial) of citizens or otherwise.
  • Thus, no objection can be made when the State carries on a trade, business, industry or service either as a monopoly (complete or partial) to the exclusion of citizens (all or some only) or in competition with any citizen.
  • The State is not required to justify its monopoly. This right does not include the right to carry on a profession or business or trade or occupation that is immoral (trafficking in women or children) or dangerous (harmful drugs or explosives, etc,). The State can absolutely prohibit these or regulate them through licencing.

Protection in Respect of Conviction for Offences

  • Article 20 grants protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal person like a company or a corporation.
  • It contains three provisions in that direction:
    1. No ex-post-facto law: No person shall be
      1. convicted of any offence except for violation of a law in force at the time of the commission of the act, nor
      2. Subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the act.
    2. No double jeopardy: No person shall be prosecuted and punished for the same offence more than once.
    3. No self-incrimination: No person accused of any offence shall be compelled to be a witness against himself.
  • However, this limitation of ex-post-facto is imposed only on criminal laws and not on civil laws or tax laws.
  • In other words, a civil liability or a tax can be imposed retrospectively.
  • Finally, the protection (immunity) under this provision cannot be claimed in case of preventive detention or demanding security from a person.
  • The protection against double jeopardy is available only in proceedings before a court of law or a judicial tribunal. In other words, it is not available in proceedings before departmental or administrative authorities as they are not of judicial nature.
  • The protection against self-incrimination extends to both oral evidence and documentary evidence. However, it does not extend to
    1. compulsory production of material objects,
    2. compulsion to give thumb impression, specimen signature, blood specimens, and
    3. compulsory exhibition of the body.
  • Further, it extends only to criminal proceedings and not to civil proceedings or proceedings which are not of criminal nature.

Protection of Life and Personal Liberty

  • Article 21 declares that no person shall be deprived of his life or personal liberty except according to procedure established by law.
  • This right is available to both citizens and non-citizens.
  • The protection under Article 21 should be available not only against arbitrary executive action but also against arbitrary legislative action.
  • court held that the ‘right to life’ as embodied in Article 21 is not merely confined to animal existence or survival but it includes within its ambit the right to live with human dignity and all those aspects of life which go to make a man’s life meaningful, complete and worth living.
  • It also ruled that the expression ‘Personal Liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights that go to constitute the personal liberties of a man.

Right to Education

  • Article 21 A declares that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may determine.
  • Thus, this provision makes only elementary education a Fundamental Right and not higher or professional education.
  • This provision was added by the 86th Constitutional Amendment Act of 2002.
  • This amendment is a major milestone in the country’s aim to achieve ‘Education for All’.
  • The government described this step as ‘the dawn of the second revolution in the chapter of citizens’ rights’.
  • Even before this amendment, the Constitution contained a provision for free and compulsory education for children under Article 45 in Part IV. However, being a directive principle, it was not enforceable by the courts.
  • It now reads—‘The state shall endeavour to provide early childhood care and education for all children until they complete the age of six years.’
  • It also added a new fundamental duty under Article 51A that reads —‘It shall be the duty of every citizen of India to provide opportunities for education to his child or ward between the age of six and fourteen years’.
  • In pursuance of Article 21A, the Parliament enacted the Right of Children to Free and Compulsory Education (RTE) Act, 2009.

Protection Against Arrest and Detention

  • Article 22 grants protection to persons who are arrested or detained.
  • The Article 22 has two parts— The first part of Article 22 confers the following rights on a person who is arrested or detained under an ordinary law:
    1. Right to be informed of the grounds of arrest.
    2. Right to consult and be defended by a legal practitioner.
    3. Right to be produced before a magistrate within 24 hours, excluding the journey time.
    4. Right to be released after 24 hours unless the magistrate authorises further detention.
  • These safeguards are not available to an alien or a person arrested or detained under a preventive detention law.
  • The Supreme Court also ruled that the arrest and detention in the first part of Article 22 do not cover arrest under the orders of a court, civil arrest, arrest on failure to pay the income tax, and deportation of an alien. They apply only to an act of a criminal or quasi-criminal nature or some activity prejudicial to public interest.
  • The second part of Article 22 grants protection to persons who are arrested or detained under a preventive detention law.
  • This protection is available to both citizens as well as aliens and includes the following:
    1. The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention. The board is to consist of judges of a high court.
    2. The grounds of detention should be communicated to the detenu. However, the facts considered to be against the public interest need not be disclosed.
    3. The detenu should be afforded an opportunity to make a representation against the detention order.
  • Article 22 also authorises the Parliament to prescribe:
    1. the circumstances and the classes of cases in which a person can be detained for more than three months under a preventive detention law without obtaining the opinion of an advisory board;
    2. the maximum period for which a person can be detained in any classes of cases under a preventive detention law; and
    3. the procedure to be followed by an advisory board in an inquiry.
  • The Constitution has divided the legislative power with regard to preventive detention between the Parliament and the state legislatures.
  • The Parliament has exclusive authority to make a law of preventive detention for reasons connected with defence, foreign affairs and the security of India.
  • Both the Parliament as well as the state legislatures can concurrently make a law of preventive detention for reasons connected with the security of a state, the maintenance of public order and the maintenance of supplies and services essential to the community.
  • It is unfortunate to know that no democratic country in the world has made preventive detention as an integral part of the Constitution as has been done in India. It is unknown in USA. It was resorted to in Britain only during first and second world war time. In India, preventive detention existed even during the British rule. For example, the Bengal State Prisoners Regulation of 1818 and the Defence of India Act of 1939 provided for preventive detention.

RIGHT AGAINST EXPLOITATION

  • Prohibition of Traffic in Human Beings and Forced Labour: Article 23 prohibits traffic in human beings, begar (forced labour) and other similar forms of forced labour.
  • This right is available to both citizens and non-citizens.
  • It protects the individual not only against the State but also against private persons.
  • The expression ‘traffic in human beings’ include
    1. Selling and buying of men, women and children like goods;
    2. Immoral traffic in women and children, including prostitution;
    3. devadasis; and
    4. slavery.
  • To punish these acts, the Parliament has made the Immoral Traffic (Prevention) Act13, 1956.
  • The term ‘begar ’ means compulsory work without remuneration. It was a peculiar Indian system under which the local zamindars sometimes used to force their tenants to render services without any payment.
  • In addition to begar, the Article 23 prohibits other ‘similar forms of forced labour’ like ‘bonded labour’.
  • Article 24 prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous activities like construction work or railway. But it does not prohibit their employment in any harmless or innocent work.

RIGHT TO FREEDOM OF RELIGION

  • Freedom of Conscience and Free Profession, Practice and Propagation of Religion: Article 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion.
  • The implications of these are:
    1. Freedom of conscience.
    2. Right to profess.
    3. Right to practice.
    4. Right to propagate. (But, it does not include a right to convert another person to one’s own religion). Forcible conversions impinge on the ‘freedom of conscience’ guaranteed to all the persons alike.
  • From the above, it is clear that Article 25 covers not only religious beliefs (doctrines) but also religious practices (rituals). Moreover, these rights are available to all persons—citizens as well as non-citizens.
  • However, these rights are subject to public order, morality, health and other provisions relating to fundamental rights.
  • Freedom to Manage Religious Affairs: According to Article 26, every religious denomination or any of its section shall have the following rights:
    1. Right to establish and maintain institu-tions for religious and charitable purposes;
    2. Right to manage its own affairs in matters of religion; (c) Right to own and acquire movable and immovable property; and
    3. Right to administer such property in accordance with law.
  • Article 25 guarantees rights of individuals, while Article 26 guarantees rights of religious denominations or their sections.
  • Freedom from Taxation for Promotion of a Religion: Article 27 lays down that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination.
  • This provision prohibits only levy of a tax and not a fee. This is because the purpose of a fee is to control secular administration of religious institutions and not to promote or maintain 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.
  • Freedom from Attending Religious Instruction: Under Article 28, 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 of religious instruction in such institution.
  • Further, no person attending any educational institution recognised 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 case of a minor, the consent of his guardian is needed.
  • Thus, Article 28 distinguishes between four types of educational institutions:
    1. Institutions wholly maintained by the State.
    2. Institutions administered by the State but established under any endowment or trust.
    3. Institutions recognised by the State.
    4. Institutions receiving aid from the State.
  • In (a) religious instruction is completely prohibited while in (b), religious instruction is permitted. In (c) and (d), religious instruction is permitted on a voluntary basis.

CULTURAL AND EDUCATIONAL RIGHTS

Protection of Interests of Minorities

  • Article 29 provides that any section of the citizens residing in any part of India having a distinct language, script or culture of its own, shall have the right to conserve the same.
  • Further, no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, or language.
  • The first provision protects the right of a group while the second provision guarantees the right of a citizen as an individual irrespective of the community to which he belongs.
  • Article 29 grants protection to both religious minorities as well as linguistic minorities.
  • Right of Minorities to Establish and Administer Educational Institutions: Article 30 grants the following rights to minorities, whether religious or linguistic:
    1. All minorities shall have the right to establish and administer educational institutions of their choice.
  • Thus, the protection under Article 30 is confined only to minorities (religious or linguistic) and does not extend to any section of citizens (as under Article 29). However, the term ‘minority’ has not been defined anywhere in the Constitution.
  • The right under Article 30 also includes the right of a minority to impart education to its children in its own language.
  • Minority educational institutions are of three types: 
    1. institutions that seek recognition as well as aid from the State;
    2. institutions that seek only recognition from the State and not aid; and
    3. institutions that neither seek recognition nor aid from the State.
  • The institutions of first and second type are subject to the regulatory power of the state with regard to syllabus prescription, academic standards, discipline, sanitation, employment of teaching staff and so on. The institutions of third type are free to administer their affairs but subject to operation of general laws like contract law, labour law, industrial law, tax law, economic regulations, and so on.

WRITS—TYPES AND SCOPE

  • The Supreme Court (under Article 32) and the high courts (under Article 226) can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo-warranto.
  • Further, the Parliament (under Article 32) can empower any other court to issue these writs. Since no such provision has been made so far, only the Supreme Court and the high courts can issue the writs and not any other court.
  • The writ jurisdiction of the Supreme Court differs from that of a high court in three respects:
    1. The Supreme Court can issue writs only for the enforcement of fundamental rights whereas a high court can issue writs not only for the enforcement of Fundamental Rights but also for any other purpose. The expression ‘for any other purpose’ refers to the enforcement of an ordinary legal right. Thus, the writ jurisdiction of the Supreme Court, in this respect, is narrower than that of high court.
    2. The Supreme Court can issue writs against a person or government throughout the territory of India whereas a high court can issue writs against a person residing or against a government or authority located within its territorial jurisdiction only or outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction. Thus, the territorial jurisdiction of the Supreme Court for the purpose of issuing writs is wider than that of a high court. 3.  A remedy under Article 32 is in itself a Fundamental Right and hence, the Supreme Court may not refuse to exercise its writ jurisdiction. On the other hand, a remedy under Article 226 is discretionary and hence, a high court may refuse to exercise its writ jurisdiction.
    3. The Supreme Court is thus constituted as a defender and guarantor of the fundamental rights.

Habeas Corpus

  • It is a Latin term which literally means ‘to have the body of’.
  • It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. The court then examines the cause and legality of detention. It would set the detained person free, if the detention is found to be illegal.
  • This writ is a bulwark of individual liberty against arbitrary detention.
  • The writ of habeas corpus can be issued against both public authorities as well as private individuals. The writ, on the other hand, is not issued where the
    1. detention is lawful,
    2. The proceeding is for contempt of a legislature or a court,
    3. detention is by a competent court, and
    4. detention is outside the jurisdiction of the court.

Mandamus

  • It literally means ‘we command’. It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform.
  • It can also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose.
  • The writ of mandamus cannot be issued
    1. against a private individual or body;
    2. to enforce departmental instruction that does not possess statutory force;
    3. when the duty is discretionary and not mandatory;
    4. to enforce a contractual obligation;
    5. against the president of India or the state governors; and
    6. against the chief justice of a high court acting in judicial capacity.

Prohibition

  • Literally, it means ‘to forbid’. It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.
  • Thus, unlike mandamus that directs activity, the prohibition directs inactivity. The writ of prohibition can be issued only against judicial and quasi-judicial authorities. It is not available against administrative authorities, legislative bodies, and private individuals or bodies.

Certiorari

  • In the literal sense, it means ‘to be certified’ or ‘to be informed’. It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case.
  • It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law.
  • Thus, unlike prohibition, which is only preventive, certiorari is both preventive as well as curative.
  • In 1991, the Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting rights of individuals.
  • Like prohibition, certiorari is also not available against legislative bodies and private individuals or bodies.

Quo-Warranto

  • In the literal sense, it means ‘by what authority or warrant’.
  • It is issued by the court to enquire into the legality of claim of a person to a public office. Hence, it prevents illegal usurpation of public office by a person.
  • 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 office or private office.
  • Unlike the other four writs, this can be sought by any interested person and not necessarily by the aggrieved person.

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