Fundamental Rights

INTRODUCTION #

Fundamental Right are the features of liberal Democracies. The theory of fundamental rights emerged in works of Johne Locke. The fundamental rights are NATURAL RIGHTS. As per the theory of Natural Rights man is born with certain rights. They are for fundamental existence of man. They are essential components to personality of man and are inalienable. Government does not have any original powers. Government has only those rights which man has transferred to the government. People are trustee and government is trust. There are limitations on government that they can’t take away these rights in an arbitrary manner.

During our freedom struggle, the leaders of the freedom movement had realised the importance of rights and demanded that the British rulers should respect rights of the people. The Motilal Nehru committee had demanded a bill of rights as far back as in 1928. It was therefore, natural that when India became independent and the constitution was being prepared, there were no two opinions on the inclu- sion and protection of rights in the Constitution. The Constitution listed the rights that would be specially protected and called them ‘fundamental rights’.

The word fundamental suggests that these rights are so important that the Constitution has separately listed them and made special provisions for their protection. The Fundamental Rights are so important that the Constitution itself ensures that they are not violated by the government. Fundamental Rights are different from other rights available to us. While ordinary legal rights are protected and enforced by ordinary law, Fundamental Rights are protected and guaranteed by the constitution of the country.

Ordinary rights may be changed by the legislature by ordinary process of law making, but a funda- mental right may only be changed by amending the Constitution itself. Besides this, no organ of the government can act in a manner that violates them. Judiciary has the powers and responsibility to protect the fundamental rights from violations by actions of the government. Executive as well as legislative actions can be declared illegal by the judiciary if these violates the fundamental rights. Fundamental rights are not absolute or unlimited rights. Government can put reasonable restrictions on the exercise of our fundamental rights.

SALIENT FEATURES OF FUNDAM- ENTAL RIGHTS IN INDIAN CONSTI- TUTION #

• Integral part of the Constitution: Funda- mental Rights have been made an integral part of the Constitution and hence cannot be taken away by ordinary legislation. Any law passed by any legislature in the country would be declared null and void if it is derogatory to the rights guaranteed by the Constitution.
• Comprehensive and detailed: The rights enumerated in the part III of the Constitution are very elaborate. Each Article has been described with its scope and limitations.
• Lack of Social and Economic Rights: The Constitution guarantees only civil rights and freedoms. Rights like Right to work, Right to Health and Right to Social Security have not been included in the Fundamental Rights.
• Rights are qualified: The fundamental rights of the people are not absolute except the right

against untouchability. They are qualified with limitations and reasonable restrictions in the collective interest of the society. While describing the scope of each right, the Con- stitution also describes its limitations. These have been laid down for protecting public health, public order, morality and security of India. Some exceptions are also provided to Fundamental Rights through their non appli- cability to members of security and law and order related forces, during martial law and, for certain laws necessary for socio-economic reforms.

• Enforceability of Right: Fundamental Rights have been made justiciable. Justiciable rights mean if any of these rights are violated by the government or anyone else, the individ- ual has the right to approach the Supreme Court or High Court for the protection and enforcement of his/her Fundamental Rights. Thus, the Constitution not only grants but also guarantees these rights. There are elaborate instruments to protect these rights, such as Right to Constitutional remedy, public Inter- est Litigation, Human Rights Commissions.
• Fundamental Rights are amendable: Fundamental Rights are not sacrosanct and permanent. Parliament has the power to amend any part of the Constitution includ- ing Fundamental Rights. The Fundamental Rights, despite having inviolable nature, can be amended by the Parliament, subject to the ‘basic structure’ of the Constitution. The par- liament has, in practice, exercised this power on several occasions.
• Provision for the Suspension of Rights: The Constitution provides for suspension of all or any of the Fundamental Rights during an emergency. However, such a suspension auto- matically ends when the emergency ceases or when the President withdraws it.
• Constitutional superiority of Fundamental Rights: TheFundamental Rights of the citi- zens are superior to ordinary laws. No law can violate Fundamental Rights.

• Special Rights for the minorities: TheFunda- mental Rights guarantees some special rights to the minorities of various kinds. This is a part from the guarantee of the secular nature of the Constitution. Cultural and educational rights have been granted to them. It abolished untouchability and makes it a crime. It has also granted special protections to women, children and the weaker sections of society.
  • No natural right: Thechapter on Fundamen- tal Rights is not based on theory of ‘natural rights’. Natural rights are said to belong to man by ‘nature’ and are inalienable from him. It is claimed that man possessed these rights even before the (concept of) state came into existence. Accordingly, natural rights do not owe their existence to their enumeration in the Constitution. The Constitution of India does not give any recognition to natural or un-enumerated rights. People of India are guaranteed only those rights which are men- tioned in part III of the Constitution.
  • Right to Property not a Fundamental Right: Right to property which is a feature of particularly liberal democracies is not guaran- teed by the Constitution of India. Actually, the original Constitution as in 1949 granted to the citizens the fundamental right to property. However, because of the hindrances posted by this right in the way of implementation of some socio-economic reforms, right to property was deleted from the list of Funda- mental Rights. It was made a legal right under Article 300A. Thus, now right to property is a legal right and not a Fundamental Right of the people.

Now, we shall see the provisions in part III of Constitution in the sequence of articles.

Article 12 #

It enumerates institutions which will be treated as state. It is not an exhaustive list but an indicative list. It includes:

• Union executive, State executive, Union Par- liament, State legislatures.
  • Local or other industries/authorities within

territory and within control of government of India.

• Local authorities: Municipalities, Panchayats, boards.

The other authority means

• Authority created by constitution, created by statute which have power to make Laws.
• Now, ‘STATE’ also includes Judiciary.

It is the action of all the above agencies that can be challenged in the courts as violating the Fundamental Rights.

Article 13 provides for the doctrine of judicial review and the definition of ‘law’. It declares that all laws that are inconsistent with or in derogation of the Fundamental Rights shall be void. Clause 2 of this Article says that “the state shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.” This clause of Art.13 along with some other articles grants judiciary the power to review laws made by the Legislatures and the Executive orders.

On the other hand, clause 3(a) of the Article provides the meaning of law. It says that unless the context otherwise requires, the “law” includes any Ordinance, order, byelaw, rule, regulation, notification, custom or usage having the force of law in the territory of India. That means if any of the above Ordinance, order, etc. violates any of the Fundamental Rights, then they will be declared null and void. Thus definition is provided for the purpose of actual operation of Part III of the constitution. The Fundamental Rights provided therein are for the most part guaranteed against state action. It is to be noted that the ‘Constitutional Amendment’ is not included in the meaning of ‘law’.

As seen above in clause 2, any law of parliament which violates of Fundamental Rights, will be void but the Article 368 allows to amend any part of the Constitution, including Fundamental Rights, the only exceptions being the ‘basic structure’ of the Constitution. This is what the clause 4 in Article 13 says that “Nothing in this Article shall apply to any amendment of the Constitution made under Article

368.” Article 368 deals with the power of Parliament to amend the Constitution and procedure thereof.

CLASSIFICATION OF FUNDAMENTAL RIGHT #

The provisions of Part III of our Constitution which enumerated the Fundamental Rights are more elaborately mentioned than those in any other exist- ing written constitutions.

1. The constitution itself classifies the Funda- mental Rights. Originally, the constitution provided for seven Fundamental Rights. There are now six Fundamental Rights which are grouped as follows:
   1. Right to equality (Art. 14 – 18)
   1. Right to freedom (Art. 19 – 22)
   1. Right against exploitation (Art. 23 – 24)
   1. Right to freedom of religion (Art. 25 – 28)
   1. Cultural and educational rights (Art. 29 – 30)
   1. Right to constitutional remedies (Article 32).

However, the Right to property was removed from the list of Fundamental Rights by the 44th Amendment Act of the Constitution in 1976. It is made a legal right under Article-300A in part XII of the Constitution. So now there are only six rights in Part III of the Constitution.

1. Another classification which is obvious is from the point of view of persons to whom they are available.
2. Fundamental Rights exclusive to citizens
3. Art. 15. Prohibition of discrimination only on grounds of religion, race, caste, sex, place of birth.
4. Art. 16. Equality of opportunity in mat- ters of public employment.
5. Art. 19. Protection of certain rights, re- garding freedom of speech etc.
6. Art. 29. Protection of cultural rights.
7. Art. 30. Right of minorities to establish and administer educational institutions.

Right to law and Equality (Arts. 14-18) Article 14: Equality before equal protection of lawArticle     15:      Prohibition   of discrimination only on   grounds of religion, race,   caste, sex or place of birth.   Article    16:    Equality    of   opportunity  in  matters of   public employment   Article  17:  Abolition  of   untouchability and prohibi-   tion of its practices   Article  18:  Abolition  of   titles, Military and academic   distinctions  are,  however,   exempted Right to Freedom (Art. 19-22) Article 19: It guarantees the citizens of India the following six Fundamentals   freedoms:   —  Freedom of Speech and   Expression   —  Freedom of Assembly   —  Freedom to form Asso-   ciations   —  Freedom of Movement   —  Freedom of Residence   and Settlement   —  Freedom of Profession,   Occupation, Trade and   Business   Article  20:  Protection  in   respect  of  conviction  for   offences   Article  21:  Protection  of   life and personal liberty   Article 21A: Right to pri-   mary education.   Article      22:      Protection   against arrest and detention   in certain cases

Right Against Exploitation (Arts. 23-24)	Article 23: Prohibition of trafficof human beings and forced labour.Article 24: Prohibition of employment of children in factories etc.
Right to Free- dom of Religion (Arts.25-28)	Article 25: Freedom of con- science and free profession, practice and propagation of religion.
	Article              26:              Freedom     to manage religious affairs.
	Article 27: Freedom as to payment of taxes for promotion of any particular religion.
	Article 28: Freedom as to attendance at religious instruction or religious ceremonies in certain edu- cational institutions
Cultural and Educational Rights (Arts. 29-30)	Article 29: Protection of language, script and culture of citizens.Article 30: Right of minor- ities to establish and admin- ister educational institutions.
Right to	Article 32: Right to move
Constitutional	the Supreme Court for the
Remedies (Art.	enforcement of Fundamen-
32)	tal    Rights       including       the
	writs of – Habeas Corpus,
	Mandamus, Certiorari, Pro-
	hibition and Quo Warranto.

Fundamental Rights available to any person on the soil of India, including foreigners (except the enemy aliens) #

• Art. 14. Equality before law and equal protec- tion of laws.
  • Art. 20. Protection in respect of conviction for offences.
  • Art. 21. Protection of life and personal liber- ty.
  • Art. 21A. Right to education

• Art. 23 and 24 – Rights against exploitation.
  • Art. 25, 26, 27, and 28 – Freedom of religion.

RIGHT TO EQUALITY #

Article 14 #

• Equality before Law
  • Equal protection of Law

Equality before Law: It is British in origin and considers as second Principle of Rule of Law by Dicey. It is negative in orientation. It suggests that state shall not deny equality before Law to anyone. Everyone to be treated equal in the eyes of Law.

Equal protection of Law: It is based on US tradition. It is a positive obligationon state to ensure that everyone gets equal protection of Law and no one should be deprived from protection of law because of circumstances. It work on – “like to be treated alike”. It permits state to go for reasonable classification amongst persons, it enables state to make special provisions in favour of those who are placed in disadvantageous situations.

Both articles provide general framework for conception of equality in Indian Constitution. Both these principles are applied in specific contexts in Article 15 & 16.

Exception to

Equality before Law. #

• Immunities enjoyed by foreign diplomats, UN officials, head of state as per conventions of international Law.
• Under Article 361, President and Governor also enjoy some immunities.
• MPs, MLAs enjoy certain previleges.
• Article 31C also mentions the execption.

Thus, concept of differentiated equality along with, Universal Citizenship is present.

Article 15: (Specific Application of Principle of equality)

15 (1) Prohibits state from discriminating against citizens on five grounds – religion, race, caste, sex and place of birth. It establishes secular state in India. Preferential discrimination or affirmative

action in favour of the weaker sections is permitted. State can not use only above grounds or any of them, but above grounds in combination with some other grounds like “social” or “Educational” Backward- ness is permitted.

15 (2) It restrains state as well as private per- sons from imposing any type of social disability on citizens on above five grounds with respect to public places etc. This provision is in context of very specific from of social exclusion faced by certain communities in India.

15 (3) Permits state to make special provisions for woman and Children.

15 (4) Permits state to make special provisions for any socially and educationally backward classes of citizens for the Schedule Caste and Schedule Tribe.

The above provision was added by 1st Consti- tutional Amendment Act because of limitation that have emerged due to Supreme Court’s Judgment in champakam Dorai Rajan case in 1951.

• Though it come out of Champakam Dorai Rajan case, it does not restrict state with respect to special provisions, only with respect to admissions in educational institutions. It is an open ended enabling clause.
• Here social and educational status qualify the backwardness, which implies:
• Any socially and educationally back- ward classes of citizens (classes used not caste) and
• Schedule Caste and Schedule Tribe are considered to be backward.

15 (5) 93rd Constitutional Amendment Act, 2005 Article 15 (5) was introduced by this Act, it provides for specific form of “Affirmative Action” in the specific field. It permits state to make special provisions “by LAW” for advancement of –

• Socially and educationally Backward classes.
• Schedule Castes.
• Schedule Tribes with respect to admissions in educational Institutions. It covers even pri- vate educational both aided as well as unaid- ed. It only ‘excludes’ minority institutions.

Issue of Reservation #

For long there has been a concern that the Constitution has provided for reservation in public employment since beginning through Article 16

(3). However, providing reservation in jobs was not sufficient step to uplift those who has been historically disadvantaged. The priority should be on providing Right to education at primary level as well as higher educational Institutions. Number of seats in reserved category could not be filled because of lack of availability of persons having minimum necessary Qualification.

• In 1993, the Supreme Court, in Unni Krishnan Case held that education cannot be treated as trade/business or profession like other professions under Article 19 (1)g. This was also first case where Supreme Court called for introduction of “RIGHT TO EDUCATION”.
• Supreme Court judgment in Inamdar case in, 2002 and TMA pai foundation case 2005 held that reservations can not be introduced in private, un aided institutions.

Ashok Kumar Thakur Case 2008 #

• In this case Supreme Court upheld the validity of 93rd Constitutional Amendment Act.
• Supreme Court also upheld the validity of “Central educational Institutions Reservations in Admissions Act, 2006”, which introduces reservation in government and private aided Institutions.
• The status of legality of any law meant for reservations in private un-aided educational institutions was left open to be decided in future.
• Supreme Court held that criteria of creamy layer will apply in case of educational Insti- tutions.
• In Supreme Court’s judgment of 2013, for Unaided private schools cases Supreme Court upheld introduction of Quota in private unaided school to achieve objective of Right to education. It again asserted that education can not be purely commercial enterprises.

• In another judgment, Supreme Court clarified that seats vacated by meritorious students of reserved category in general category will not be given/meant for filling quota seats.

Article 16 #

Equality of opportunity in matter of Public employment.

16 (1) There shall be equality of opportunity in matters of public employment.

16 (2) State is prohibited from discriminating among citizens on the grounds only of religion, race, caste, sex, place of birth. There are two additional grounds – ‘descent’ and ‘residence’ with respect to certain category of post under government of any state or union territory any local or other authority. Parliament may prescribe requirement of residence. Only parliament can do and state legislatures are prohibited.

16 (3) It enables state to make special provisions for reservation in appointment of posts in favour of any backward class of citizen.

The pre condition is that if in the opinion of state, class is not adequately represented in service under state.

Government of India has introduced reservations in appointments and posts for members of Schedule Caste and Schedule Tribe community. Constitution prescribes provisions by which class of persons can be declared as Schedule Caste and Schedule Tribe, Article 341 and 342 prescribe the procedure. The Schedule Caste are identified as those who ever been excluded from society because of practice of untouchability. Schedule Tribe has been identified on the basis of primitive tribes, distinctive culture, geographical isolation, educational and social back- wardness.

Identification of OBCs #

It has been easier to identify, members of Schedule Caste and Schedule Tribe, but it’s not been so easy to identify OBCs. Article 340, of Indian constitution suggests that president may appoint a commission to investigate conditions of socially and educationally backward classes to make recommendation by what should be taken by

government to improve conditions. In this context, the first backward class commission was appointed in 1953, under “Kaka Kalelkar”. Later on, second Backward classes Commission known as MANDAL COMMISSION was appointed by Janta Party. Mandal Commission recommendations were not implemented by government. It was V.P. Singh’s government which decided to introduce Quota to the OBCs in job. This has resulted into agitation against government policies.

Indira Sawhney Case (Mandal Judgement) #

• Supreme Court accepted that caste can be taken as prominent criteria for identification of Backwardness, as far as Hindu community is concerned. Among non Hindus, govern- ment can go for other criteria, may be certain groups or sect which have been historically backward.
• Reservation can not go beyond 50% of total vacancies in years, otherwise it taken as – REVERSE DISCRIMINATION though in

exceptional situation it can go beyond 50%.

• Reservation has to be only at entry level of not in promotions.
• Creamy layer criteria in OBCs.
• Reservation in super specialty jobs.

Subsequent Amendments by Government to remove obstacles from Indira Sawhney case.

Article 16(4) introduced by 77th Constitutional Amendment Act to remove limitation with respect to reservation in promotions prohibited by Supreme Court. It introduces reservation in promotion for Schedule Caste and Schedule Tribe.

82nd Constitution Amendment Act, 2000 has added a provision in Article 335. The Article deals with consideration of efficiency in administration in context of reservation in appointment. The Amend- ment held that Lowering standards of evoluation for reservation and relaxation of qualifying marks in any exam will not be considered as contrary to Article 335.

In the Ajit Singh Case, Supreme Court held validity of reservations in promotions but directed to introduce – “Catch up Rule”.

85th Constitution Amended Act 2001 the Act applicable with retrospective effect from 17th June 1995. This negates “Catch up Rule” and introduces promotion with consequential reality.

Nagaraja Case: Challenged validity of 85 Con- stitution Amendment Act. Supreme Court upheld validity but gave new guidelines to be observed by government.

• Government has to ascertain that class for which promotion is introduced is not ade- quately represented.
• Government has to provide verifiable data.
• Government should ensure that efficiency in administration required by Article 335 is not compromised.

117th Constitution Amendment Bill – In this bill, it has been mentioned that Schedule Caste and Schedule Tribe shall be deemed to be backward and it is not necessary to collect data.

• Secondly the limitation by Article 335 shall not be apply.

Arguments in Favour: #

• Since the introduction of new economic policies, employment opportunities in public sector has reduced.
• Private sector gets direct/indirect benefit from government.
• The idea of Justice in Indian constitution cannot be realized without the participation of private sector.
• India is not alone, even Malaysia had “Bhoomi Putra” policy by which firms had to employ 30 % workforce from native people.
• Recently, government of Saudi Arabia has also introduced the NITAQAT LAWS.

Arguments against #

• It may impact competitiveness of Indian economy.
• Private sector can’t work on the same princi- ples like Public Sector, it cannot have policy of permanent appointment and promotion in total disregard of performance.

• It cannot carry burden of ‘Non Performing Assets’.
• The government approach is based on vague assumption that employment opportunities are increasing in private sector.
• It suggests that government should ensure that while employing in private sectors, Company should follow criteria of merit alone. It should be prohibited from following tacit discrimina- tion on basis of caste or religion on the basis of “Canadian Bill of Right”.

Conclusion #

Government can explore options. Industry in India is divided on the issue. Tata group supports Government’s approach. Whereas, groups like Info- sys suggested economy can be criteria rather caste. Its suggested that private sector should take “volun- tary Affirmative Action”. CSR is a better alternative.

Some Observations on Reservation Policy #

• Reservations in India, especially OBC res- ervation has become a tool to meet narrow political ends.
• Reservations has become political necessity. No major party opposes reservation. Though its not mandatory but all government in all states have gone for reservation.
• There has been no discourse on whether res- ervation should exist or not among decision makers.
• Government should determine more objective criteria, government should have time bound plan.

Few suggestions include #

• Government should collect latest relevant data of different caste, religion etc. on the basis of ‘social & educational backwardness’, and decide criteria for reservation on the ‘social & educational backwarness’ not on the basis of caste.

Article 17: Abolition of Untouchability #

• Untouchability is declared as an offence.
• Practice of Untouchability in any form is forbidden.

• Practice of Untouchability shall be offence and punishable according to law.

Caste based Untouchability is one of foremost Human Right concerns in Indian context. There have been attempts since beginning by social-reli- gious reform movements and later on leader like Gandhi and Ambedkar. Indian Constitution declared Untouchability as an offence, punishable by law. It empowers union parliament to make law and to prescribe punishment. In this context, government has brought Untouchability offences Act,1955, later renamed as Civil Rights Protection Act, based on LAYA PERUMAL COMMITTEE.

The Civil Rights protection Act makes Untouch- ability as ‘Cognizable’ and ‘non-compoundable’ offence. It provides that state should create special courts for speedy trial of such offences. Despite such Act, practice of Untouchability, neglect of Civil rights continued in th country. Not only practice of Untouchability in various forms but atrocities against Schedule Caste and Schedule Tribe continued.

This act aims at prevention from atrocities. It means state can take ‘proactive steps’ – which include mapping of atrocity prone area; increased surveillance; collection of all licensed Arms of upper caste; it even permits police to provide arms in some situations to members of Schedule Caste and Schedule Tribe communities for self protection.

• It provides special courts and special police forces.
• It is first act to mention ‘Relief and Reha- bilitation’
• It also prescribes punishment for public serv- ant for deliberate neglect of duty.

Despite above laws, atrocities based on caste continue in the country. The report on National Commission on Human Rights 2004 mentions that Law enforcement machinery, police is the greatest violator of above laws. Caste based atrocities and violation of Civil Rights of community has been an international concern also. Number of times Inter- national community has equated caste system with Racism and Apartheid. Government of India has consistently opposed inclusion of casteism within the definition Racial discrimination. India as a mem- ber of Universal Declaration of Human Right, has

been at the forefront of global fight with apartheid. However back home we have not been successful in ending one of the worst form of discrimination. India does have watchdog institutions like National commission for Schedule Caste and Schedule Tribe, NHRC, various state commissions, independent Judiciary. But the problem continues. Its suggested that we need to change attitude. We need to:-

• Focus on education system that can change deeply rooted social and cultural prejudices. We need a generation of citizens that respect Human Rights. According to UN Commis- sioner for Human Right:-
• Government of India should have more focused policy. Simply welfare measures and reservation won’t help.
• Punish private agents and state actors in- volved in crime.
• Give high priority to protection of Dalit women.
• It’s a high time, India should take effec- tive steps as this plight cannot be Justi- fied as traditional culture.

Abolition of titles (Article 18) #

As per Article 18- #

• 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.
• 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 for- eign State.

Are Bharat Ratna Padma Vibhushan, Padmashree, etc. violative of Art. 18? #

In 1954, the Government of India introduced decorations (in the form of medals) of four cate- gories, namely, Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri. While the Bharat

Ratna is to be awarded for “exceptional services towards the advancement of Art, literature and Science, and in recognition of public service of the higher order”, the others would be awarded for “distinguished public service in any field, including service rendered by Government servants”, in order ‘of the degree of the merit of their service’.

It is necessary that there should be a system of awards and decorations to recognize the excellence in performance of duties by a person. These awards merely denote the State’s recognition of good work by citizens in various fields of activities. These fits in the category of academic distinctions. They are mere decorations and not the hereditary titles of nobility like Maharaja, Rai Bahadur, Rao sahib, etc. So, these awards are not violative of the provisions of Art. 18. But, they cannot be used as a title and cannot be used as suffix or prefix. Otherwise the awards are liable to be forfeited. It can be noted here that the Bharat Ratna awardees have been assigned a place in the ‘Warrant of Precedence’ (9th place, i.e., just below the Cabinet Ministers of the union), which is usually meant for indicating the rank of the different dignitaries and high officials of the State in the interests of discipline in the administration.

ARTICLE – 19 RIGHT TO FREEDOM #

Article 19 forms foundation of Democratic- politi- cal system and rule of law. The nature of freedom are not libertarian. Reasonable restrictions are imposed with each freedom to establish balance between freedom and authority, and individual and society.

Reasonable restrictions: #

Work in favour of rights and puts restrictions on state. It means-

• Restrictions can be imposed only by authority of law and not merely by executive order.
• Judiciary has power of Review to ascertain if there is a rationale behind magnitude of restriction imposed and objective sought to put restrictions.

Article – 19 (1) (a) Freedom of speech and expression #

Significance #

This is the first condition for Democracy and evolution of Deliberative Democracy in particular.

In the absence of these rights, it is not possible to form public opinion and hold government responsi- ble. It is necessary for development of personality of human.

In Indian context, it is regarded to be a ‘Com- pound Right’ that includes many rights. Article 19 is to be seen with Article 21 as an integrated scheme and an essential component of Golden Triangle. It includes

1. Freedom of Press
   1. RTI
   1. Right to Privacy
   1. Right to Protest

Above rights are not absolute and Indian Constitution mention eight grounds of reasonable restrictions –

• Security of state;
• Friendly Relations with foreign states;
• Sovereignty and Integrity of India (16th Con- stitutional Amendment Act);
• Decency and Morality;
• Contempt of Court;
• Defamation;
• Enactment to an offence;
• Public order (1st, Constitutional Amendment Act, 1951);

I.     Freedom of Press #

It is not explicitly mentioned in the Indian Con- stitution as in USA Constitution. However, Supreme Court of India has clarified that, the freedom of press is included in Freedom of speech and expression. It has clarified that there is no Censorship on press, and it does not require government’s permission before publishing any material. This right includes—

• Right to seek information.
  • Right to Publish.
  • Right to circulation of information.

44th Constitutional Amendment Act, 1948 has included Article 361A that provides protection to person, publishing proceedings of parliament. In 1997, Prasar Bharti Act granted autonomy to DD

and AIR. At present, press council of India, 1966 act as “WATCHDOG” on press. The print media is under the regulation, but press council of India is an autonomous body. It establishes principles and participation of Ethical behaviors in print media with participation with members from press.

The press council of India is headed by retired judge of Supreme Court and twenty-eight mem- bers. 20 members are nominated from press, 5 are nominated by parliament, 3 members representing cultural and literary field are nominated by UGC, sahitya Academy and Bar council of India.

There is no parallel body for Private Broadcast Media as well as for social Media. With respect to private TV channels another concern is that FDI is permitted. Press council of India has suggested to bring private TV channels and social media under its regulation and rename it as ‘MEDIA COUNCIL’. Approach of present government is that media cannot be controlled and it should undergo self regulation. Through there are acts dealing with cyber security and programmes like CMS control Monitoring sys- tem, Netra, do impact the freedom of expression of Indian Citizens. Recently, even government of Britain had established committee – LEVENSON COMMITTEE REPORT also highlights unethical practices prevailing in India. The GOI has taken into consideration the recommendations of this report. In India, number of studies point towards negative role of social media in some recent incidents of commu- nal violence in the country.

Envisaged Role of Media in a country like India:

• India is largest Democracy – both in terms of number as well as diversity.
  • India faces various type of challenge – Nation Building, as well as developmental.

In the above situations media has a social responsibility and it cannot be considered as simply any other perfusion or simply for entertainment. Media has to leave yellow Journalism and develop responsible Development Journalism.

II.   Right to Privacy #

It means to possess a sphere where man is free from state and society’s interference. Right to privacy is considered as an integral part of freedom of speech and expression. It is also recognised as a

Human Right by the UN. Recently, the UN General Assembly has adopted a non-binding resolution sponsored by more than 50 countries led by Brazil and Germany and has approved unanimously by all members of UN. India has also been the sponsoring country. The resolution titled Right to privacy in Digital Age, UN has adopted Right to privacy as Human Right & integral to freedom of speech and declared that “mass surveillance system” within state and outside state have negative impact on rights.

Idea Behind this Resolution is that the rights available in physical world should also be available in digital world or rights available offline should also be available online.

Thus the resolution suggests the governments are entitled to gather sensitive information but they have to comply with international Human Rights laws. Unlawful arbitrary surveillance interception and collection of data violates the Right to privacy. It request the countries to:

• Respect and protect Rights of person in dig- ital world.
  • Ensure that National legislation are in compli- ance with International Human Rights.
  • Review National procedures and practices, and streamline them.
  • The system has to be made transparent and accountable.
  •   See 66A of IT Act, GOI has became a classical case study of violation of Right to Privacy and misuse of provision.

Sec 66A provides disproportionate penalty and a very broad basis for government to interfere in freedom of speech and expression in social media. It criminalises any email posting blog on the ground that matter is “grossly offensive cause annoyance,” inconveniences “besides insult, enmity, hatred and false information”. The punishment is imprisonment upto 3 years and fine.

It is expected that GOI brings necessary reforms in IT Act, Indian Telegraph Act and similar laws. Government should bring legislation on Right to pri- vacy, should observe guidelines given in resolution.

Recently, GOI’s data mining programme known as CMS and Netra has also been challenged for violation of Right to privacy.

III.   Right to Information (RTI) #

RTI is also a significant component of Dem- ocratic governance. Democracy works by ‘public reasoning’. It means government is accountable to people. RTI makes these conditions possible. The unique features of the Act are –

• It is a citizen centric law. It does not provide any prescribed format to seek information. It can be asked on a simple paper in any language.
  • No fee for people below poverty line. A very meager sum of Rs 10 for other people.
  • Person has right to receive information within stipulated time.
  • Right to verify information received.
  • Every public work department or government authority has to designate public Informa- tion office. Information can be taken from government authorities, NGOs receiving government funds or performing function of public nature that comes under definition of public Authority. There is a debate related to inclusion of political parties and office of chief Justice of India within the scope. The act also excludes some organisation from scope of RTI because of National Security. The act creates institutional structure: central information commission and state information commissions.

From official secrets Act, 1923 to RTI Act, 2005 a big transformation has happened where much of information is in public domain and very limited information is held in secret. There are certain information’s available without demanding.

Information demanded to be provided within 30 days. If party is involved then within 40 days. In case of information concerned with life and liberty to be provided within 48 hours. Penalty of 250 rupees per day to maximum of Rs 25,000 can be held for the responsible official.

Article 19 (1) (b) Freedom to Assemble ‘without arms’ #

Restrictions (i) Sovereignty and Integrity of India (ii) Public order

Recently, Lucknow bench of Allahabad High Court has banned caste based rally in U.P on the ground that it disturbs public order and generates animosity among castes.

Freedom to form associations or unions or co-operatives [Art.19 (1)(c)] #

Article 19(1)(c) confers on citizens the right to form associations or unions. The right guaranteed under Article 19(1)(c) is not merely to form asso- ciation but also to continue with the association as such. The freedom to form association implies also the freedom to form or not to form, to join or not to join an association or union.

The State can impose reasonable restrictions on freedom of association or union in the interest of – public order, morality, and the sovereignty and integrity of India.

Strikeis a temporary stoppage of work by a group of employees in order to express a grievance or to enforce a demand concerning changes in work conditions. In the Indian Constitution, the right to strike is not an absolute right but it flows from the Fundamental Right to form union. It is subject to reasonable restrictions. The Supreme Court has stated that “no person has the right to destroy anoth- er’s property in the guise of bandh, or hartal or strike or to cause inconvenience to others or to create a risk to life, liberty or property of any citizen or to public property”. Central Civil Services Conduct Rules, 1955 reads: “No Government servant shall participate in any demonstration or resort to any strike in connection with any matter pertaining to his conditions of service”. In private sector, the right to strike or the right to declare lock-out is allowed in limited forms, controlled or restricted by appropriate industrial legislations such as Trade Unions Act of 1926, Industrial Disputes Act of 1947 etc. The right to form co-operatives was introduced under Article 19(1 )(c) by the 97th Constitution (Amendment) Act, 2011.

Right of Association and Armed Forces #

The Constitution empowers the Parliament, under Article 33 to modify the rights conferred by Part III of the Constitution in their application to members of the Armed Forces or other forces engaged with the maintenance of public order. Exercising this power, Parliament has banned the

formation of trade unions to the members of the Armed Forces, Police etc.

Freedom of movement [Art. 19(1)(d)] #

Art. 19(1)(d) guarantees freedom to move freely throughout the territory of India. Though reasona- ble restrictions can be imposed on this right in the interest of the –

• general public, or
• for protection of the interests of any Sched- uled Tribe.

For example, restrictions may be imposed on movement and travelling, so as to control epi- demics or for that matter to protect environment or biodiversity or to, protect tribal culture such as Jarawas in Andaman. Similarly, restrictions may be put by an order of the District Magistrate or Police Commissioner to remove a person from a particular area (Tadipar) for a temporary period of up to three months. Supreme Court has also ruled that the right of movement of prostitutes may be curbed. The free- dom of movement has two dimensions viz. internal (right to move inside the country) and external (right to move out of the country and the right to come back to the country). Article 19 protects only the first dimension while the second dimension is dealt by Right to life and personal liberty guaranteed by Article 21.

Freedom to reside and settle [Art. 19(1)(e)] #

Art. 19(1)(e) guarantees citizens the right to reside (temporary stay) and settle anywhere in the territory of India. The freedom of movement and freedom to reside and settle are complementary to each other. Their object is to remove the barriers within India. They promote national unity and integrity of India. The right is subject to reasonable restrictions by the State in the interest of the – a) general public or

b) for the protection of the scheduled tribes, from exploitation and coercion. The freedom to reside or settle in North-eastern states of India, Jammu and Kashmir, Uttarakhand, etc. has been restricted for the same reasons mentioned above.

Freedom to practise any profession or to carry on any occupation, trade or business [Art. 19(1)(g)] #

[Art. 19(1)(g)] guarantees a citizen the right to choose a source of livelihood of his choice. The

right covers the right to not to choose a business or right to close a business. The second right comes with certain conditions such payment of workers’ compensation, pension, etc. Citizen’s right to carry on a profession is basic to the life of a man and state imposes no particular restriction on it, except the interest of the general public. Of course, there is no right to carry on a business which is dangerous or immoral.

Two conditions have been put on the freedom of citizens to practice any profession –

• The State may prescribe requisite professional or technical qualifications for carrying on any occupation, trade or business.
  • The State may exclude, completely or partially, the citizens or other entities from carrying on any trade, business, industry or service where the State or a corporation owned or controlled by the State is involved.

Article 20: Protection in Respect of conviction for offences #

• The right is available to all.
  • Enforcement is never suspended (44th Con- stitutional Amendment Act).
  • This is the right to a person to protect him in respect of conviction of offences. In such situation person has three rights:
    • Protection from ex-post facto laws.
    • No double jeopardy.
    • No self-incrimination.
  • Person will be punished for violation of law at the time of commission of Act.
  • And the punishment shall not be more than what is prescribed in the law. It can be less than what is prescribed.
  • Protection is available only in criminal cases, and with respect to criminal laws. No protec- tion from ex-post facto laws with respect to civil and financial laws.
  • Person will get benefit of lesser punishment introduced by law ex post facto.

Supreme Court has also banned certain tests like Narco Analysis, Brain mapping without consent. However, police can take finger print, DNA testing.

The last two principles are of US tradition, and an essential component of Natural law and Natural Justice.

Article 21: Right to life and Personal liberty #

• This is also available to non citizens.
  • It is also never suspended. It gives following rights:

— State cannot deprive any person from-

(a) his life (b) personal liberty, except, ac- cording to “Procedure established by law”.

• Procedure Estabilished By Law: This is a limitation on executive and a necessary condition for Rule of law.
  • There has to be a law, it means executive can- not deprive a person from his life and liberty on its own in an arbitrary manner without the authority of law.
  • Executive has to follow procedure prescribed in law. Thus, judiciary has power to review acts of executive.

In the A.K. GOPALAN CASE, 1950 the peti- tioners challenged reasonableness of PREVENTIVE DETENTION ACT, 1950. They petitioned that Right to life and liberty to be interpreted in light of view represented in preamble. Supreme Court rejected petition and held that preamble cannot be used to modify the meaning of explicit provision of Indian Constitution. Judiciary applied the principle of Reading Down, rather than liberal interpretation. It rejected that procedure established by law contains the principle of “Due process of law.”

Judiciary can review act of legislature on proce- dural grounds. It cannot challenge intention of law.

Mainka Gandhi Case 1978 #

In this case the Judiciary had changed its view and Supreme Court overruled its previous judgment and going for LIBERAL INTERPRETATION and acknowledged that principle of “Due process of law” is inherent in procedure established.

“Due Process of law” – US Tradition #

It limits power of states, both executive as well as legislature based on concept of Natural law. State/

government is a trust, it has to work in accordance to the wishes of people. It cannot do what is not per- mitted by Natural law. According to Locke, natural law says that state cannot limit Man’s right to liberty and property, because they are man’s property and not state’s property. Any state law has to meet test of fairness and reasonability. Even by following proper procedures, state can’t pass a law which is not fair, just or reasonable.

Issues Related To Right To Life #

Meaning of Right to life #

Supreme Court has gone for liberal interpreta- tion of life. Supreme Court quoted observation of the US Constitution, which is that ‘Right means right to live with human dignity.’ It was quoted by Supreme Court in 1963 in Kharak Singh case. Later on Bandhua Mukti Morcha case, SC clarified that Right to life means living with dignity – freedom from exploitation, right to livelihood and right to shelter. In Mohini Jain case, 1992 Supreme court considered Right to education as an essential com- ponent of Right to live with dignity.

Debate on Capital Punishment or Death Penalty #

Capital punishment is considered to be one of the most torturous punishments. The global trend is that many countries has abolished Death penalty constitutionally or in practice. At the same time, major countries like USA, China, India and Iran representing significant proportion of population continued with Capital punishment.

Situation in India: Supreme Court in Bachan Singh case held that Death Penalty will not be the rule but an exception. It is to be given in rarest of rare situation.

Machli Singh case, Supreme Court tried to explain situations which can be considered as Rar- est of rare. However, this Rarest of Rare Doctrine is ambiguous. It has been reported that there has been situations when Judiciary has overlooked this doctrine. Supreme Court acknowledges, at least in 13 cases where Death penalty was awaited, judiciary has overlooked this parameter. The logic behind continuation of Death penalty in Indian context is “Deterrence”.

However, the “Deterrence” effect of Death Penalty remains questionable. Social scientists have not been able to provide sufficient study to establish direct linkage between continuation of Death penalty and Deterrence effect. Some studies in USA shows, that states abolishing Death penalty have witnessed decline in such crimes rather than those continuing.

In Indian context when Judiciary itself main- tains rarest of rare principle, the deterrence effect automatically goes.

There has to be some principles or philosophy shaping the system of punishment.

Personal Liberty #

Personal liberty is not to be treated in literal sense of arbitrary confinement of person, it should be treated in broadest sense to include different type of rights.

Article 21. A Right to Education (RTE) #

History of Right to Education #

For the first time, Gokhale moved a resolution in Imperial legislative council for free and compulsory primary education in India in 1910.

After almost 100 years of this demand that RIGHT TO EDUCATION ACT came into exist- ence. In Mohini Jain case for the first time Supreme Court mentioned, right to education as necessary for dignified life (1992) Later on, in UNNI KRISHNAN case, Supreme Court issued directive to introduce RTE for children up to 14 years of age. It mentions that this is not an absolute right. The parameter of RTE to be determined in context of Article 41 and 45.

Article 41 #

State shall within the limits of its ECONOMIC CAPACITY AND DEVELPOMENT will  make

effective provision for securing Right to Work, Education and public assistance in case of unem- ployment, old age, sickness and disability.

Article 45 #

State shall endeavour to provide primary educa- tion to children up to 14 years of age.

86th Constitutional Amendment Act, 2002 #

Introduces Right to education and making it Fundamental Rights. It is an obligation on state to

provide free and compulsory education to all chil- dren from 6-14 years such as manner that state may by law determines.

As per to critics, 86th Constitutional Amend- ment Act dilutes Supreme Court’s judgment in Unni Krishnan case, as it was upto 14 years and not 6-14 years. Similarly it has demanded, upper age limit to be 18 years.

Article 22: Protection in case of arrest and detention. #

Here, two types of detention are mentioned –

• PUNITIVE
  • PREVENTIVE

Rights Available To Persons Under Punitive Detention #

The rights are available to citizens, non-citizens, and those detained under punitive Detention law-

• Right to be informed of ground of arrest as soon as possible. Reason: Person can go for quick remedy for his defense.
  • Right to consult and defended by a legal practitioner of his choice.
  • Right to be produced before nearest magistrate within 24 hours of arrest excluding journey time and holidays.

This will allow to correct the action of police.

Rights   of    Person    Under    Preventive Detention #

• To be informed of ground of arrest as soon as possible.
  • Police can’t detain a person beyond three months.
  • There are two situations where person can be detained even beyond 3 months with-
• Consent of Advisory Board (AB)
• Advisory Board have three members- serving Judges of Supreme Court and High Court.

The person detained has no right to be rep- resented the advisory board has to be taken into consideration. If Parliament has made law and law

prescribes detention, the person can be detained by police. Thus the protection available are actually no protection. India is one such democratic country where preventive detention has constitutional status.

ARTICLE 23: RIGHT AGAINST EX- PLOITATION #

Prohibition of traffic of human beings and forced labour. It prohibits-

• Traffic of human beings.
  • Beggar.
  • Other and similar forms of forced labour.

The constitution makes it an offence, punishable according to law. Though constitution permits that state can impose compulsory service for public purpose. Above rights has special significance for woman, children and members of schedule caste and schedule tribes.

Trafficking #

Trafficking of persons for labour and sexual exploitation is a serious problem in India. 90% of trafficking is domestic, 10% across borders. India is a destination and transit country. Prominent sectors employing trafficked persons are – commercial sex industry, different agriculture and industrial sectors, begging and entertainment sector.

The factors responsible for trafficking are –

• Poverty;
  • Patriarchal value system;
  • The social and cultural value system;
  • Impact of Globalization;
  • Disasters and Conflicts;
  • Governance Issue, where traffickers get away with crime; and
  • Worst aspect is Nexus between traffickers and law enforcement Agency.

Impact: #

• It exploits rights of women and children.
  • It aggravates problems of AIDS and HIVs.
  • Circulation of black money.
  • Perpetuate property.

Overview of Government Efforts #

• India is a signatory to UN protocol to sup- press, prevent and punish trafficking in per- sons especially women and children in 2003.
  • India is also signatory to SAARC protocol.
  • The major act which India has passed is Immoral Trafficking ( Prevention ) Act, 1956.
  • Studies shows that Act contains sections like section – 8 which harass the victims.
  • As required by the act, the state government have not constituted special Court.
  • Trafficking is not an Electoral Issue, it is not the priority of government and Enforcement Agencies.
  • Recently, GOI has taken following steps as mentioned in UN protocol which suggest:
    • Prevention by economic Empower- ment and Awareness.
    • Prosecution, criminalize trafficking.
    • Post Trafficking Protection: shelter homes, counselling Rehabilitation Centre.

Central Government #

• Integrated National plan of Action, 1998 which involves sensitizing law Enforcement Officials.
  • Swadhar scheme to provide shelter to rescued girls.
  • Ujjwala scheme for Rehabilitation.

Article 24: Prohibition of employment of chil- dren in factories. This makes employment of children below 14 years of age in any factory, mine or any other hazardous environment as an offence. Despite this constitutional guarantee, it is unfortunate that India has the largest number of child labour in the world. Initially in Constituent Assembly, Article 24 was to include right to Education also as it was ascertained that two factors are interlinked, but later RTE was placed in part IV. However, recently Arti- cle 21-A has been introduced.

• 12.6 million children are forced to work in order to survive. Majority of them comes from depressed sections – Dalits, STs.

• India has not signed ILO convention – 138 which prescribes minimum age for work, 182- which abolishes worst form of child labour. Though, India is a signatory to –

UN Millennium Development Goal, and Darfur convention on Education for All. The prominent Domestic legislation are-

(i) Child Labor prohibition and Regulation Act, 1986- as per Universal periodic review of India, this act is poorly implemented. Large number of states have not made any rules for implementation of the Act.

ARTICLE 25     TO     ARTICLE 28: RIGHT TO FREEDOM OF RELIGION #

Right to religious freedom and related rights are available to citizens as well as non-citizens. Article 25 establishes nature of Indian state as secular state and evolution of India as tolerant society. Idea of secularism reflects – Gandhian view.

Under Article 25, four rights are available-

• Freedom of Conscience: Freedom of a per- son with respect to the form of God he wants to have faith, freedom of spiritual orientation.
  • Right to profess Religion: Profess means – “To Declare”

E.g. Rights of Sikhs to carry Kripaan is free- dom to profess. It is a foundation of tolerant society, there is no need to hide (scared of) religious application.

• Right to Practice: Right to pursue rituals related to religion.
  • Right to Propagate: However, it does not imply right to forcible conversion.

Nature of Right #

It is not absolute Right. It is subjected to rea- sonable restriction—

• Public order.
  • Morality and Health.
  • Any interlinked provision of Constitution. With respect to right to practice religion,

Supreme Court in Jagdishwara Nanda case, gave Doctrine ofEssential and Non-Essential Practices.

State can interfere in Non –Essential Practices of Tandara Natya in public. According to critics, Supreme Court has become the highest priest to determine what essential aspect of religion is. They consider this is an interference in Right to Practice of Religion.

Article 25 (2) #

This provision permits state’s intervention in religious sphere.

• State may “by law” regulate or restrict any economic, financial, political or other secular activity which may be associated with reli- gious activities.
  • State has power to open – “Hindu Religious Institutions of Public Character” to all classes and sections of citizens for the purpose of social welfare and reform. For above, provi- sion the reference to Hindu Religion include – SIKH, JAIN, BUDDHIST.

Article 26: Freedom to manage Religious Affairs. #

Reasonable restriction: Public order, health and morality.

This right is available only to Religious Denom- inations group of person’s observing particular religion and not to an individual. Four Rights–

• Right to establish and maintain Institutions for –
• Religious and
• Charitable purpose

This right recognizes contribution of religious societies towards social reforms as well as promo- tion of Education.

• Right to manage its own affairs in matters of religion (in other matters, state can intervene)
  • Right to own and acquire movable and immovable property. [Right to property of citizens in person is no more a Fundamental Right but of religious and charitable institu- tions is maintained].
  • Right to administer this property in accord- ance to law.

Article 27: No person shall be compelled to pay tax, the proceeds for this are specifically meant for only particular religion or religious denomination.

Thus, state is to adopt a policy of “EQUIDIS- TANCE” with respect to all religions and cannot give importance to a particular religion.

Article 28: It is with respect to Religious instruc- tion in educational institutions. Here four categories of educational institutions are mentioned –

• Completely maintained by state funds – no religious instructions shall be imparted. Two other categories are –
• Any Educational Institution recognized by state.
• Any Educational Institution receiving aid out of state funds. Religious instructions may be imparted but no one is compelled. In case of minors, consent of guardians is required.
  • Educational Institutions administered by private, religious education can be imparted.

CULTURAL   AND    EDUCATIONAL RIGHTS OF MINORITIES #

Article 29 (1) #

• This is available only to citizens.
  • It is available to any sections of citizens having distinct culture, script or language.
  • Here it can be any sections of citizen’s not necessarily religious or linguistic minorities.

Article 29 (2) #

• It is a restriction on state, not to discriminate only on the grounds of caste, race, religion, language or any of them.
  • It prohibits discriminations with respect to Admission into educational institutions maintained by state or receiving aid out of state funds. Article 15 (4) is an exception to article 29 (2).

Article 30: Right of minority to establish and administer educational institutions of their choice. It is available to all minorities. This means no dif- ference between citizens and non – citizens. Here it

is a qualified term minorities based on religion and language. Indian Constitution does not give param- eter to determine priority status. Supreme Court has determined parameter – Any section religion or linguistic whose proportion in population is less than 50% would be considered as minority.

• To determine status we have to take into considerations geographical context.
  • Educational Institution are best way to con- serve and promote culture.
  • State shall not discriminate against any Educational Institution in granting aid on the ground that it is under the management of minority.

Article 31: Right to Property #

• Repealed by 44th Constitutional Amendment Act, 1978.
  • Now under Article 300-A.
  • It gives protection to certain law related to acquisition by states. It was added by 1st Constitutional Amendment Act, 1951 to give effect to land reforms.

Article 31-B #

• Added by 1st Constitutional Amendment Act, 1951.
  • It added IXth schedule.

Article 31-C #

• Any law giving effect to Directives given in Article 39(b) and Article 39(c) shall not be challenged on ground that it abridges any of rights given by Article 14 and Article 19.
  • This was added by 25th Constitutional Amendment Act and further modified by 42nd Constitutional Amendment Act and 44th Constitutional Amendment Act.

ARTICLE 32: RIGHT TO CONSTI- TUTIONAL REMEDIES #

Considered by Ambedkar as soul of PART–III. Article 32 and 13(2) clearly establish Supreme Court as guarantor or guardian of Fundamental Rights. Supreme Court has power to issue writs for

enforcement of Fundamental Rights. Thus citizens and non–citizens in India have been given this responsibility to reach directly to the Supreme Court for violation of Fundamental Rights. It is right of a person and constitutional obligation of judiciary to provide remedy.

Article 32 (1) #

It provides right to move to SC by “appropriate proceedings for enforcement of rights given in part III.”

Appropriate Proceedings: #

The Indian Constitution does not specify pro- cedure, and keeps it open ended. Supreme Court can determine appropriate procedure. In this context following procedures are available in present situ- ations –

• The aggrieved party approaching to court directly.
  • Supreme Court has also given recognition to PIL – Public Interest Litigation. It means it has expanded the concept of “locus standi” and allowed any social organization or any other person to approach Supreme Court on behalf of the aggrieved person. From time to time, Supreme Court has elaborated on PIL –
• It is not the Fundamental Right. Hence, it is a discretion of Court to give permis- sion.
• It is neither “Private Interest Litigation” nor “Political Interest Litigation”.
• Person should approach to Court with clean hands and clear heart.

Epistolary Jurisdiction #

Supreme Court accepts petition on basis of letters, postcard, suo moto also. Supreme Court applies, “Doctrine Laches”.

Laches: It means a person should not delay in approaching to court.

Res Jurdicata: If person has availed relief of Article 226 for redressed of violation of his right, he can’t reach Supreme Court on same ground in same case for which he opted for approaching the High Court.

The idea is to give recognition to decision of court of Competent Jurisdiction. However, it’s not applied in those cases where writ of Habeas Corpus is sought.

Article 32(2): If person approaches Supreme Court it has power to issue writs, including writs in nature of Habeas Corpus, Mandamus, Prohibition, certiorari, Quo-warranto.

Article 32(3): Parliament may “by Law”, can empower any other court for protection of Fun- damental Rights, to issue writs within limits of its Jurisdiction and without prejudice to power of Supreme Court.

Article 32(4): Rights guaranteed under part III shall not be suspended except as provided by Indian Constitution. As per Indian Constitution they can be suspended as per provisions of Article 358 and article 359.

Article 358: In case of proclamation of emer- gency by war, or by external aggression. Not on ground of armed rebellion. Enforcement of Article 19 is automatically suspended.

Article 359: Since, introduction of 44th Con- stitutional Amendment Act, Article 20 and Article

21 enforcement is never suspended. With respect to other Fundamental Rights, President has to bring an order mentioning what rights to be suspended when proclamation of emergency is in operation. No difference is made on proclamation of emergency on external or internal grounds.

Writs #

• Habeas Corpus: This writ produced by court to protect individual. It is issued whenever a person is wrongfully/illegally detained. Then this writ can be filled before court by indi- vidual or organization and not necessarily by the aggrieved individual. Therefore the prin- ciple of Locus Standi does not apply in case of Habeas Corpus.The writ can be issued both against state and individual. It literally means “to have the body”, i.e. physical protection of person whose detention is questioned be- fore court to enable court to ascertain ground of his detention. If the court finds detention illegal than the court orders for his release henceforth.

• Mandamus: This writ petition can be filled only by aggrieved individual. It can be used by a court to enforce only legal rights but not private rights. This writ can be issued only against public authority or a person holding public office and not against private individ- ual/organization. It was issued when a public official or authority has failed to discharge his duty. The term literally means ‘command’. This writ demands action on part of public authority or official. However this writ can- not be issued against President, governor of state.
• Prohibition: This writ can be issued only against judicial/quasi-judicial body. The pe- tition can be filled against court only by ag- grieved individual. This writ issued when ju- dicial/quasi-judicial body has taken a case in excess of its jurisdiction. The writ when issued has effect of prohibiting quasi-judicial/judicial body from proceeding further with the care.
• Certiorari: It is similar to prohibition in all respect except that it is issued after a judicial/ quasi-judicial body completed its trial case and pronounce its judgment. The purpose of the writ is to quash the decision given by the judicial body in absence of jurisdiction.

Quo –Warranto: This writ is used by court to ensure that a person holding public office is quali- fied to hold that office. It cannot be issued against private office. This petition can be filled by any individual. When this writ issued it has effect of removing person from office with immediate effect.

PUBLIC INTEREST LITIGATION #

History #

The concept of PIL is taken from USA where it is termed as Public Interest Law. Public Interest Law is the name that has recently been given to efforts that provide legal representation to previously unrepresented groups and interests. Such efforts has been undertaken in the recognition that ordinary marketplace for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others.

In India the concept of PIL emerged after 1980s. Prior to 1980s, only the aggrieved party could per- sonally knock the doors of justice and seek remedy for his grievance. In other words, only the affected parties had the locus standi (standing required in law) to file a case and continue the litigation and the non affected persons had no locus standi to do so. But the splendid efforts of Justice P N Bhagwati and Justice V R Krishna Iyer were instrumental of this juristic revolution of eighties to convert the Apex Court of India into a Supreme Court for all Indians.

There are 3 stages of the evolution of PIL in India-

• In the first stage the courts were more con- cerned about the rights of the poor and the marginalized like children, bonded labourers, stone quarry workers and prisoners.
  • In the second stage the focus shifted to environmental matters like cleaning of rivers, air and water pollution, forests and wildlife protection.
  • Now the most recent trend is towards trans- parency and probity in administration. The PILs have focused on reforming the police system, maintaining the independence of the CBI and the like.

Definition #

The court in People’s Union for Democratic Rights v. Union of India defined Public Interest Litigation and observed that the Public interest litigation is a cooperative or collaborative effort by the petitioner, the State of public authority and the judiciary to secure observance of constitutional or basic human rights, benefits and privileges upon poor, downtrodden and vulnerable sections of the society.

Advantages #

• The relaxation of procedural formalities has gone a long way in ensuring that the poor have access to justice. The relaxation of the rule of locus standi has resulted in repre- sentative action where a person or a group, with a sufficient interest in a particular cause, litigates on behalf of a large number of others who cannot afford the cost of litigation.
  • PIL has also given the court an opportunity to address important issues in areas like environ-

mental protection, consumer protection etc., which affects a large number of people.

• The acceptance of even letters and telegrams by the courts, as PILs, reduces the cost of such litigation and also encourages public spirited individuals and groups to bring to the notice of the court any situation which requires the Courts interference.
  • The appointing of commissions by the courts as fact finding bodies to check into the alle- gation made in the petition has established a new mode of proof. These commission reports have formed the basis of direction of the court in cases complaining of violation of rights.
  • The monitoring by the Court of the implemen- tation of the directions at periodic intervals to ensure compliance, enable the vindication of rights in practice.

Abuse of PIL #

• PIL as a handy tool of harassment since friv- olous cases could be filed without investment of heavy court fees as required in private civil litigation.
  • There are cases of publicity litigations. A PIL was filed against the then Chief Justice of India seeking his removal on the grounds that he was unfit for the office and he must be stripped of his citizenship.
  • There has emerged as a tool to promote political interest litigations.
  • Some people have used PIL as a means to take revenge on their opponents. A PIL was filed against a company (TISCO) that it was causing environmental pollution as the company has refused to sell slurry to the other party. Personal matters has raised in the courts.
  • To overcome these challenges the court had to lay down guidelines to encourage only genuine PILs.

Guidelines by the Supreme Court re- garding PILs- #

In State Of Uttaranchal vs Balwant Singh Chaufal the apex court laid the following guidelines-

• The courts must encourage genuine and bona fide PILs and effectively discourage and curb the PILs filed for extraneous considerations.
  • Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discour- aging the PIL filed with oblique motives.
  • The courts should prima facie verify the cre- dentials of the petitioner before entertaining a PIL.
  • The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
  • The court should be fully satisfied that substantial public interest is involved before entertaining the petition.
  • The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
  • The court before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The court should also ensure that there is no per- sonal gain, private motive or oblique motive behind filing the public interest litigation.
  • The court should also ensure that the petitions filed by busybodies for extraneous and ulte- rior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.

RESTRICTIONS ON FUNDAMENTAL RIGHTS #

Parliament by law is allowed to put restrictions on Fundamental Rights of citizens under certain conditions, as follows:

1. Restrictions on Fundamental Rights of mem- bers of armed forces, intelligence forces, law and order (police, etc) and national security related forces, etc. (Article 33);
   1. Restrictions on Fundamental Rights of citi-

zens while martial law is in force in any area (Article 34); and

• Restrictions on Fundamental Rights of citi- zens during the Proclamation of Emergency (Article 352).
• Article 33. Power of Parliament to modify the rights conferred by this Part in their appli- cation to Forces, etc.-

Article 33 provides an exception to the Fun- damental Rights. It empowers the Parliament to restrict or abrogate the Fundamental Rights of members of armed forces, paramilitary forces, police forces, intelligence bureau, etc.

Accordingly the Parliament has passed The Army Act, The Navy Act, The Air Force Act, The Border Security Forces Act, etc which delineate freedoms available to members of these forces in the interest of discipline in the forces and national security.

These imposes restrictions on freedom of speech and expression, right to form unions, right to be associated with political parties, etc. The power to make laws under Article 33 is vested with the Parliament only and not with State Legislatures.

Any such law made by the Parliament can- not be challenged in the court of law on the ground of contravention of Fundamental Rights.

• Article 34. Restriction on rights conferred by this Part while martial law is in force in any area-

Article 34 provides for restriction of Funda- mental Rights while martial law is in force in any area within the territory of India.

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

It can also validate any sentence passed, pun- ishment inflicted, forfeiture ordered or other act done under martial law in such area.

Martial Law: Conditions of extreme dis- order may sometimes arise when the civil authorities, even with the help of the armed

forces, are unable to bring the situation un- der control. For example, insurrection, war, rebellion, riots, etc. In such cases martial law may be imposed in the disturbed area by a military commander.

Martial Law means the suppression of the civil authority, by military authority, whose sole object is to restore conditions, as expedi- tiously as possible, to enable the civil author- ity to resume charge. Martial law is exercise of the right of private defence by repelling force by force.

By imposing Martial law, a military com- mander takes control of the affected area. He may requires the civil authorities to discharge their normal functions according to the rules and regulations prescribed by military com- mander. During the operation of martial law, military authorities are vested with abnormal powers to take all necessary steps. They may impose restrictions on rights of the citizens, can punish the citizens and condemn them to death. Martial law is different from procla- mation under Article 352(1).

• (Article 358 and 359)U: Effect of Funda- mental Rights during emergency- (for details refer to the chapter on emergency)

Under the Indian Constitution, national emer- gency can be imposed by the President under Article 352. Such proclamation impacts on the fundamental rights in the following way:

Article 358 #

As soon as the Proclamation of Emergency is made, the State is freed from limitations imposes by Article 19.

Article 19 is automatically suspended, under Article 358. It means the Legislature and Executive are free to make any law or issue orders which may contravene or restrict the freedoms guaranteed by Article 19.

Article 359 #

During the operation of Emergency, the Presi- dent may further declare by an order the suspension of the right to move a Court for the enforcement of any of the Fundamental Rights. It means the

Fundamental Rights remain theoretically alive, only the right to move to the Court for enforcement of these rights is suspended.

The 44th Amendment Act, 1978 provided an exception that Article 20 and Article 21 shall remain enforceable even during Emergency due to the importance attached to the rights enshrined in these Articles.

RECENT DEVELOPMENTS #

Criminal Defamation #

Why in news? #

The Supreme Court recently upheld the validity of the criminal defamation law. The court pro- nounced its verdict on a batch of petitions challeng- ing the constitutional validity of sections 499 and 500 of the Indian Penal Code providing for criminal defamation.

The court said though free speech is a “highly valued and cherished right”, imprisonment is a proportionate punishment for defamatory remarks.

Why it should be retained? According to Supreme Court #

Reputation of an individual, constituent in Arti- cle 21 is an equally important right as free speech.

Criminalization of defamation to protect individual dignity and reputation is a “reasonable restriction.”

Editors have to take the responsibility of everything they publish as it has far-reaching con- sequences in an individual and country’s life

The acts of expression should be looked at both from the perspective of the speaker and the place at which he speaks, the audience etc.

Other arguments #

It has been part of statutory law for over 70 years. It has neither diluted our vibrant democracy nor abridged free speech

Protection for “legitimate criticism” on a ques- tion of public interest is available in the

• Civil law of defamation &
• Under exceptions of Section 499 IPC

Mere misuse or abuse of law can never be a reason to render a provision unconstitutional rather lower judiciary must be sensitized to prevent misuse

Monetary compensation in civil defamation is not proportional to the excessive harm done to the reputation.

Clean Environment & Article 21 #

Supreme Court, in a landmark judgement has pronounced right to clean environment as a fun- damental right enshrined under right to life and personal liberty under Article 21 of the Constitution.

Though no law has been enacted on regulating the burning of crackers, but the apex court has issued guidelines in this regard. So, it entails legal regulation on burning fire crackers, on account of these guidelines.

In the landmark case of 2005; “Prevention of Environment & Sound Pollution v. Union of India”, the apex court laid down a few essential guidelines relating to firecrackers and addressing other prob- lems of sound pollution. The key highlights being:

• The Department of Explosives may divide

the firecrackers into two categories-

• Sound emitting firecrackers, and
  • Colour/light emitting firecrackers.
• There shall be a complete ban on bursting sound emitting firecrackers between 10 p.m. and 6 a.m. It is not necessary to impose re- strictions as to time on bursting of colour/ light emitting firecrackers.
• Every manufacturer shall on the box of each firecracker mention details of its chemical contents and that it satisfies the requirement as laid down by Department of Explosives.

The court has directed that non-implementation of the guidelines is leading to gross violation of the Fundamental Rights which must be preserved and respected at all times.

Arguments have often been made against such restrictions on the grounds that it violates Article 25 of the Constitution, i.e., to practice and propagate our religion freely. What one must keep in mind that Fundamental Rights are not absolute in nature and falls under the umbrella of certain reasonable restrictions.

The apex court in its landmark judgment; “Church of God in India vs. K.K.R Majestic Colony Welfare Assn.” held that the court can put certain restrictions on controlling the noise, even if such noise was a direct consequence of any religious ritual or activity being held.

In a recent case, 3 toddlers moved to the Supreme Court with a petition to take action against the rising levels of air pollution. The Supreme Court dismissed this petition which was aimed at putting a blanket ban on bursting of crackers on Diwali or designating a particular place for bursting crackers. The Supreme Court exclaimed that such a blanket ban would be lethal and would cause an unnecessary uproar in the society. The court, however, has directed the government to spread awareness about the hazardous effects of crackers.

Bursting crackers has been a custom in our society which is now proving to be lethal for the coming generations. Article 21- Right to Life, is a basic human right and subsequently a Fundamental Right for Indian Citizens, and to breathe clean air constitutes the same.

Hence, it is necessary to exercise certain pru- dence and caution in this situation and one must give precedence to various rights in terms of their necessity.

Significance of this judgement #

The judgement raises reputation to the level of “shared value of the collective” and elevates it to the status of a fundamental right under Article 21 of the Constitution.

According to the judgement, the theory of bal- ancing of rights dictates that along with the right to freedom of speech and expression, there is a correlative duty on citizens not to interfere with the liberty of others, as everyone is entitled to the dignity of person and of reputation.

Why it should be deleted? #

Freedom of speech and expression of media is important for a vibrant democracy and the threat of prosecution alone is enough to suppress the truth. Many times the influential people misuse this pro- vision to suppress any voices against them.

Considering anecdotal evidence, every dissent may be taken as unpalatable criticism.

• Section 295 of Indian Penal Code incriminates any act that outrages the religious feelings or sentiments of others.

The right to reputation cannot be extended to collectives such as the government, which has the resources to set right damage to their reputations.

The process in the criminal cases itself becomes a punishment for the accused as it requires him to be personally present along with a lawyer on each date of hearing.

Given that a civil remedy to defamation already exists, no purpose is served by retaining the criminal remedy except to coerce, harass and threaten.

It goes against the global trend of decriminal- izing defamation

• Many countries, including neighboring Sri Lanka, have decriminalized defamation.
• In 2011, the Human Rights Committee of the International Covenant on Civil and Political Rights called upon states to abolish criminal defamation, noting that it intimidates citizens and makes them shy away from exposing wrongdoing.

Section 295A of IPC #

Recently, comedian Kiku Sharda was arrested for acting out a spoof on godman Gurmeet Ram Rahim Singh.

In past also Section 295A has been used at various occasions. It was also used to issue arrest warrants to AIB, Karan Johar, Ranveer Singh and Arjun Kapoor in the ‘AIB Roast controversy’.

The IPC provision is seen as a tool in the hands of the ruling government to curb dissent

They also use it to promote their political cause by pleasing a certain section of community at the cost of others.

This is seen as a direct violation of Freedom of Speech and Expression guaranteed under A.19

• (a).

It also goes against Article 51A of the Constitu- tion that states that it is a “fundamental duty of every

citizen of India to develop the scientific temper, humanism and the spirit of inquiry and reform”.

Way forward #

The real issue is not the provision itself but its misapplication. The provision clearly states the requirement of ‘malice’ or ‘bad intention’ on the part of the perpetrator. However, the police and the ruling class use this for its own personal benefits many times. There is a need to read down the pro- vision and give clear guidelines to the police for its application. Misapplication should be strictly dealt with.

Coelho Case #

• In this case, a 9 member bench of SC argued that all amendments to the constitution made on or after 1973 by with the 9th schedule has been amended by inclusion of various laws therein shall have to be tested on the touch- stone of the basic structure of the constitution. Further, after is placed in the 9th schedule, its validity has to be tested on the touchstone of the basic structure doctrine.
  • The bench held that judicial review of laws to judge its constitutionality and fundamental rights are the part of the basic structure of the constitution. Since no law should violate the basic structure as per the Keshavananda Bharati case, any law/ act put under the ninth schedule are thus, not immune from judicial review.
  • It says that the objective behind Article 31-B is to remove difficulties and not to wipe out judicial review. Therefore every amendment to the constitution whether it is in the form of amendment of any article or amendment by insertion of an article in 9th schedule, has to be tested by reference to the basic structure.
  • Laws included in 9th schedule does not become part of the constitution, because they derived their validity on account of the exercise undertaken by parliament to include them in 9th schedule and that has to be tested every time.
  • It questions that can parliament increase the amending power by amending Article-368 but

to what extent. Is it not possible that the ulti- mate power of amendment, destroy damage the fundamentals of constitution.

• Article 368, does not vest such a power in parliament. it cannot lift all restriction placed on amending power. It is not unlimited. The power of amendment has to be compatible with the limits on the power of amendment. (Kesvananda Bharti case)
  • Parliament has power to amend the provision of PART 3 to abridge or take away funda- mental rights but subject to limitation of the basic structure doctrine.
  • The golden triangle of article. 14, 19, and 21 as it stand for equality and rule of law, along with article. 15, 20, and 32, etc clearly from part of the basic Structure and cannot be abrogated.
  • Of course, judicial review is the cornerstone phenomenon which protects itself first to protect the essence of constitution as a basic structure doctrine. Thus, full judicial review is an integral part of the constitutional scheme and no law can dilute its powers.

Freedom of Press #

Why in news? #

On November 16, when the country celebrated the National Press Freedom Day, three newspapers in Nagaland were published with blank editorials to protest a notification from Assam Rifles that had the effect of muzzling the press freedom.

The papers were instructed to refrain from publishing news related to Naga insurgent group NSCN-Khaplang [NSCN-K].

The notice said that “any article which projects the demands of NSCN-K and gives it publicity is a violation under the Unlawful Activities [Prevention] Act, 1967 and should not be published by your newspaper.”

Concerns: #

Such notifications have implications for the freedom of the press.

India ranks at 136 among 190 nations on the

World Press Freedom Index published by Reporters without Borders.

This incident draws attention to the problems faced by the press in conflict zones, trapped as media persons between the state armed with the law to enforce varying degrees of censorship, and militant groups who use methods of intimidation to have their versions published.

Role of Press Council of India (PCI): #

PCI has taken suo motu note of the case and served notices to the paramilitary force and the State government.

The PCI has the power to review any develop- ment likely to restrict the supply and dissemination of news of public interest and importance.

Ban on Murugan’s Book Reversed #

Background #

Perumal Murugan, an award-winning Tamil writer had come under sustained attack from local caste-based groups for his fictional novel Mathorub- hagan(translated into English as One Part Woman) for hurting their sentiments.

He was forced to write an ‘unconditional apol- ogy’ at the instance of police, local officials and protestors. He later publicly announced to give up writing.

The Madras HC has rejected the demand for banning the book or prosecuting the author.

High Court Verdict #

It is a liberal and progressive judgment that emphasises and upholds the freedom of writers to write.

The HC lambasted the practice of self-appointed super censors in the society to decide on what the people should read or watch. In Court’s opinion those professing to be hurt by a book should just avoid reading it. This should set a precedent among others.

The Bench also reminded the state authorities, like police and the local officials, of their duty to secure freedom of expression and not to succumb to mob demands in the name of preserving law and order.

Issue of Judicial Censorship #

Indian Criminal law prescribes a two-step safe- guard on freedom of speech in case of banning a book:

• First is the application of mind by the gov- ernment when it bans a book under section 95 and 96 of the CrPC.
  • Second is the judicial review of the govern- ment’s move by a writ petition.

The trouble is the frequent manner of straight- way approaching the court for a ban. This by-pass-

ing of the two-way safeguard is being increasingly entertained by the Courts.

This is an issue as a sole decision over the suitability of the book by the Court is not what the constitution or the law warrants. This form of analysis is heavily judge-centric, depending almost entirely on what an individual judge feels about a controversial work.

Thus, the courts must take care of this fact as well or there will be huge uncertainty over the status of freedom of speech vis-a vis banning a book.