Introduction

The Constitution may be classified into two kinds, written like the U.S. Constitution or unwritten and based on conventions like the British. Therefore, no code of Fundamental Rights exists in the Constitution of England. This does not mean that in England there is no recognition of those basic fundamental rights of the individual without which democracy becomes meaningless. In fact, the fundamental rights of an individual are secured here in a different way. The foundation of individual rights in England may be said to be negative, in the sense that an individual has the right and freedom to take whatever action he/she likes, so long as he/she doesn’t violate any rule of the ordinary law of land. Individual liberty is secured by judicial decisions determining the rights of individuals in particular cases brought before the Courts. The Judiciary is the guardian of individual rights in England as elsewhere, but there is a fundamental difference. The Courts have the fullest power to protect the individual against executive tyranny, but the Courts are powerless against legislative aggression upon individual rights. In other words, there are no fundamental rights binding upon the Legislature in England. The English Parliament being theoretically ‘omnipotent’, there is no law which it cannot change. Therefore, in England, the individual has rights, but they are bound by the ordinary law of the land, which can be changed by Parliament like other laws. The consequence of the supremacy of Parliament is that the English Court has no power of judicial review over legislation at all. The English Court cannot declare any law unconstitutional on the ground of contravention of any supposed fundamental or natural right.

                    On the other hand, the Constitution of the United States of America is a written Constitution. Hence, the code of Fundamental Rights exists in the Constitution of the United States. At the time of making the Constitution of America, the framers of the American Constitution were apprehensive of tyranny not only from the Executive but also from the Legislature. So, the American Bill of Rights (contained in the first Ten Amendments of the Constitution of the USA) is equally binding upon the Legislature as upon the Executive. As a result, the ‘judicial supremacy’ is in the United States. The Courts in the United States are competent to declare an Act of Congress as unconstitutional on the ground of contravention of any provision of the Bill of Rights. Furthermore, it is beyond the competence of the Legislature to modify or adjust any of the fundamental rights in view of any emergency or danger to the State. That power has been assumed by the Judiciary in the United States.

                             The Constitution of India is also a written constitution, and the Fundamental Rights in the Indian Constitution are from Article 12 to 35 under Part III. The makers of the Indian Constitution adopted Fundamental Rights to safeguard individual liberty and also for ensuring (together with the Directive Principles) social, economic, and political justice for every member of the community. Though the Fundamental Rights-related provisions have been taken from the Constitution of the United States. But the Indian Constitution does not go so far and rather affects a compromise between the doctrines of Parliamentary sovereignty and Judicial supremacy.

In fact, the Fundamental Rights in our Constitution are more elaborate than those found in the Constitution of any other country in the world, including the USA. The Fundamental Rights are guaranteed by the Constitution to all persons without any discrimination. These fundamental rights uphold the equality of all individuals, the dignity of the individual, the larger public interest and unity of the nation. Other words, the fundamental rights are meant for promoting the ideal of political democracy. These fundamental rights prevent the establishment of an authoritarian and despotic rule in the country, and protect the liberties and freedoms of the people. These fundamental rights operate as limitations on the tyranny of the executive and arbitrary laws of the legislature. In short, these provisions aim at establishing ‘a government of laws and not of men’.

Originally, the Constitution itself classifies the Fundamental Rights under seven groups as follows:

1. Right to equality. It is covered by Article 14 to Article 18.
2. Right to freedom. It is covered by Article 19 to Article 22.
3. Right against exploitation. It is covered by Article 23 and Article 24.
4. Right to freedom of religion. It is covered by Article 25 to Article 28.
5. Cultural and educational rights. It is covered by Article 29 and Article 30.
6. Right to property. It is covered by Article 31.
7. Right to constitutional remedies. It is covered by Article 32.

However, of these, the Right to Property has been eliminated by the 44th Amendment Act of 1978. It is made a legal right under Article 300-A in Part XII of the Constitution. Hence, at present, there are only six Fundamental Rights.

Features of Fundamental Rights

The Fundamental Rights guaranteed by the Indian Constitution are characterised by the following:

1. Some of the Fundamental Rights are available only to citizens of India while others are available to all persons whether citizens, foreigners or legal persons like corporations or companies.
2. Fundamental Rights are not absolute but qualified. The state can impose reasonable restrictions on the fundamental rights. However, whethersuch restrictions are reasonable or not is to be decided by the courts. Thus, they strike a balance between the rights of the individual and society, between individual liberty and social control.
3. Most of the fundamental rights are available against the arbitrary action of the state, with a few exceptions like those against the State’s action and against the action of private individuals. When the rights that are available against the State’s action are only violated by private individuals, there are no constitutional remedies but only ordinary legal remedies.
4. Some of the fundamental rights are negative in character, place limitations on the authority of the State, while others are positive in nature, conferring certain privileges on individuals.
5. Fundamental Rights are justifiable, allowing persons to move the courts for their enforcement if and when these rights are violated.
6. Fundamental Rights 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 Court.
7. Fundamental Rights are not sacrosanct or permanent. The Parliament can curtail or repeal these rights but only by a constitutional amendment act and not by an ordinary act. However, the amendment of fundamental rights must be done without affecting the ‘basic structure’ of the Constitution.
8. Fundamental Rights can be suspended during the operation of a National Emergency except the rights guaranteed by Article 20 and Article 21. Moreover, the six rights guaranteed by Article 19 can be suspended only when an emergency is declared on the grounds of war or external aggression and not on the ground of armed rebellion or internal emergency.
9. Fundamental Rights has been narrowed down by introducing certain exceptions to the scope of fundamental rights, these are, Articles 31A, 31B, 31C, 31D. Article 31A, 31C are exceptions to the fundamental rights enumerated in Article 14 and 19. This means that any law falling under the ambit of Article 31A (a law for agrarian reform) or Article 31C (saving of laws giving effect to certain Directive Principles) cannot be invalidated by any Court on the ground that it contravenes any of the fundamental rights guaranteed by Article 14 and Article 19. However, Article 31B offers almost complete exception to all the fundamental rights enumerated in Part III of the Constitution. If any enactment is included in the 9th Schedule, which is to be read along with Article 31B, then such enactment shall be immune from constitutional invalidity on the ground of contravention of any of the fundamental rights. But it shall be open to challenge on the ground of damage to the basic structure of the Constitution subsequent to 24 April 1973 (i.e., the date of decision in Keshavananda’s case).
10. The fundamental rights application to the members of the armed forces, paramilitary forces, police forces, intelligence agencies and analogous services can be restricted or abrogated by the Parliament by Article 33.
11. The fundamental rights application can be restricted by Article 34 when martial law is in force in any area. Martial law means ‘military rule’ imposed under abnormal circumstances to restore normal conditions.

Article 12 – Definition of State

The term ‘State’ has been used in different provisions relating to the fundamental rights. Hence, under Article 12 has defined the term ‘State’ for the purposes of Part III of the Constitution. According to Article 12, the State includes the following:

1. The government and Parliament of India, i.e., executive and legislative organs of the Union government.
2. The government and Legislature of States, i.e., executive and legislative organs of the state government.
3. All local authorities like municipalities, district boards, Panchayats, Improvement Trusts etc.
4. All other authorities within the territory of India or under the control of the Government of India, like LIC, ONGC, SAIL, BHEL, NTPC, etc.

Thus, the term ‘State’ has been defined by Article 12 in a wider sense so as to include all the agencies. In case of violation of Fundamental Rights, these agencies can be challenged in the courts.

Furthermore, according to the Supreme Court, even a private body or an agency working as an instrument of the State comes within the meaning of the ‘State’ under Article 12.

Article 13-Laws Inconsistent with Fundamental Rights

Article 13 declares that all laws and executive orders are inconsistent with or in derogation of any of the fundamental rights, they shall be void. In other words, that means Article 13 expressly provides for the doctrine of judicial review. This power has been conferred on the Supreme Court under Article 32 and the High Court under 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 State legislature.
2. Temporary laws like ordinances issued by the President or State Governors.
3. Delegated legislation laws like ordering, rule, bye-law, regulation or notification by the executive.
4. Non-legislative sources of law, i.e., custom or usage having the force of law.

Hence, the term ‘law’ in Article 13 has been defined in a wider sense so that any of the above can be challenged in the courts as violating Fundamental Rights and can be declared void. Furthermore, Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged. But the constitutional amendment shall be open to challenge on the ground of damage to the basic structure of the Constitution subsequent to 24 April 1973 (i.e., the date of decision in Keshavananda’s case) and hence, the constitutional amendment can be declared as void.

Article 14-Equality before the Law and Equal Protection of the Laws

Article 14 of the Constitution provides 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’. Here the protection provided by the Articles 14 is 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 two expressions “equality before the law” and “equal protection of the laws” used in Article 14, in fact, embody the concepts of the rule of law and of equal justice in our Constitution. ‘Law’ in the singular in the term ‘equality before the law’ means that the rule of law or no one is above law. There is absolute supremacy of law as opposed to arbitrary power of Government, and there is one system of law and the Courts for all. On the other hand, the word ‘laws’ in the plural in the term ‘equal protection of the ‘laws’ clearly makes the provision in the laws, thereby enjoins the State to ensure that the laws that are made should provide equal protection to all without any distinction.

The concept of “equality before law” is taken from the British Constitution while the concept of “equal protection of laws” has been taken from the American Constitution. The concept of “equality before law” connotes:

1. Absence of any special privileges in favour of any person.
2. Equal subordination of all persons to the ordinary law of the land administered by ordinary courts.
3. No person is above the law, i.e., whether rich or poor, high or low, official or non-official.

On the other hand, the concept of “equal protection of laws” connotes:

1. The equality of treatment under equal circumstances to all persons who are similarly situated.
2. Similar application of the same laws to all persons who are similarlysituated.
3. The like should be treated alike without any discrimination.

Thus, both of the concepts aim to establish equality of legal status, opportunity and justice in the country. However, the Supreme Court held that where equals and unequal are treated differently, Article 14 does not apply. While Article 14 forbids class legislation, it permits reasonable classification of persons, objects and transactions by the law, but the classification should not be arbitrary, artificial or evasive. It should be based on an intelligible differential and a substantial distinction.

Rule of Law-

The concept of “equality before law” is derived from the concept of “Rule of Law”, propounded by A.V.Dicey, the British jurist. His concept has the following three aspects:

1. Absence of arbitrary power, i.e., no man can be punished except for a breach of law.
2. Equality before the law, i.e., equal subordination of all citizens to the ordinary law of the land administered by the ordinary law courts.
3. The primacy of the rights of the individual, i.e., the constitution is not the source of the individual rights while individual rights are to be defined and enforced by the courts of law.

The first and the second aspects are applicable to the Indian System and not the third one because in the Indian System, the constitution is the source of the individual rights. The Supreme Court held that the “Rule of Law” as embodied in Article 14 is a ‘basic feature’ of the Constitution. Hence, it cannot even be destroyed by an amendment.

Exceptions to Equality-

The rule of equality before law is not absolute. There are constitutional and other exceptions to it. These are mentioned below:

1. Article 361 provides the President of India and the Governor of States with the following immunities:

1. 1. The President or the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his/her office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.
   2. No criminal proceedings shall be instituted or continued against the President or the Governor in any court during his/her term of office.
   3. No civil proceedings against the President or the Governor shall be instituted during his/her term of office in any court in respect ofany act done or purporting to be done by him in his/her personal capacity, whether before or after he/she entered upon his/her office as President or Governor, until the expiration of two months next after a notice in writing has been delivered to him.                

However, the above-mentioned immunities shall not bar impeachment proceedings against the President and suits or other appropriate proceedings against the Governor.

2. Under Article 361-A, no person shall be liable to any civil or criminal proceedings in any court in the respect of the publication in a newspaper or radio or television of a substantially true report of any proceedings of either the House of Parliament or either House of the Legislature.
3. Under Article 105, no member of the House 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.
4. Under Article 194, 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.
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 in violation 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 United Nations Organization and its agencies enjoy diplomatic immunity.

Article 15- Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth

The clauses (1) of Article 15 provide that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. The significance of the word ‘only’ is that if there is any other ground or consideration for the differential treatment besides those prohibited by this Article, the discrimination will not be unconstitutional. In other words, the word ‘only’ connotes that discrimination on other grounds is not prohibited. The clause (2) of Article 15 says that no citizen shall on grounds only of religion, race, caste, sex, place of birth or any of them, be subjected to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment, or (b) the use of wells, tanks, bathing Ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public. The clause (3) of Article 15 says that the State is permitted to make any special provision for women and children. For example, the provision of free education for children or reservation of seats for women in local bodies. The clause (4) of Article 15 says that 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 the Scheduled Tribes. For example, reservation of seats or fee concessions in public educational institutions. The clause (5) of Article 15 empowers the State to make special provisions 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 ones whether aided or unaided by the State, except the minority educational institutions. This provision was added by the 93 Constitution Amendment Act of 2005. This provision makes clear that the Central Government enacted the Central Educational Institutions (Reservation in Admission) Act, 2006, providing a quota of 27% for candidates belonging to the Other Backward Classes (OBCs) in all central higher educational institutions including the Indian Institutes of Technology (IITs) and the Indian Institutes of Management (IIMs). On 10 April 2008, the Supreme Court upheld the validity of both the Amendment Act and the OBC Quota Act. But the Court directed the Central Government to exclude the “creamy layer” among the OBCs while implementing the law and a review of the quota every five years. The clause (6) of Article 15 was added by the 103 Constitution Amendment Act of 2019. It provides for special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clause (4) and clause (5) in so far as such special provisions relate to their admission to educational institutions including private ones whether aided or unaided by the State, except the minority educational institutions.

Who is called Creamy Layer in the OBCs-

The children of the following different categories of people belong to the ‘creamy layer’ among Other Backward Classes (OBCs), and, therefore, they will not get the quota benefit:

1. Persons holding constitutional posts like President, Vice-President, Judges of the Supreme Court and the High Courts, Chairman and Members of UPSC and SPSCs, CEC, CAG and so on.
2. Group ‘A’/ Class I And Group ‘B’/ Class II Officers of the All India, Central and State Services, and Employees holding equivalent posts in PSUs, banks, Insurance Organizations, Universities etc., and also in private employment.
3. Persons who are in the rank of colonel and above in the Army andequivalent posts in the Air Force, Navy and the Paramilitary Forces.
4. Professionals like lawyers, doctors, engineers, artists, authors, consultants and so on.
5. Persons engaged in trade, business and industry.
6. People holding agricultural land above a certain limit and vacant land or buildings in urban areas.
7. Persons having gross annual income of more than ₹ 8 lakh or possessing wealth above the exemption limit. When the “creamy layer” ceiling was introduced in 1993, it was ₹ 1lakh. It was subsequently revised to ₹ 2.5 lakh in 2004, ₹ 4.5 lakh in 2008, ₹ 6 lakh in 2013 and ₹ 8 lakh in 2017. The annual income for the creamy layer ceiling is to be revised every three years, and as per the last revision order of ceiling issued in 2017, it is fixed at Rs 8 lakh.

Article 16- Equality of Opportunity in Public Employment

The Constitution of India guarantees equality of opportunity in matters of public employment. Under clause (1) of Article 16 provides that all citizens of India are guaranteed equality of opportunity in matters relating to employment or appointments to any office under the State. The clause (2) of Article 16 says that no citizen can be ineligible for, or discriminated against in respect of any employment or office under the State on grounds only of religion, race, caste, sex, descent, place of birth or residence. The subsequent clauses (3), (4), (4A), (4B), (5) and (6) are exceptions to this general rule of equality of opportunity in public employment. Thus, under clause (3) of Article 16 provides that Parliament can prescribe residence as a condition for certain employment or appointment in a state or union territory or local authority or other authority. By virtue of this power, Parliament passed the public Employment (Requirement as to Residence) Act, 1957, empowering the Government of India to prescribe residence as a condition for employment in certain posts and services in the State of Andhra Pradesh and in the Union Territories of Himachal Pradesh, Manipur and Tripura. At present, Himachal Pradesh, Manipur and Tripura are states. This Act having expired in 1974, there is no provision to prescribe residence as a condition for public employment, except that for Andhra Pradesh and Telangana special provisions have been made by inserting a new Article 371-D in the Constitution itself. The clause (4) of Article 16 makes a clear provision that the State can provide for reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.  The expression ‘backward class of citizens’ contained in Article 16 (4) would take Scheduled Castes and Scheduled Tribes within its purview. In clause (5) of Article 16 which provides

that a law may be prescribed that the incumbent of an office related to a religious or denominational institution, or a member of its governing body should belong to the particular religion or denomination.

The clause (6) of Article 16 was added by the 103 Constitution Amendment Act of 2019. It provides that the State can provide any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens, other than the classes mentioned in clause (4) of Article 16, in addition to the existing reservation. The additional reservation will be a maximum of ten per cent of the posts in each category.

Mandal Commission-

The Morarji Desai Government appointed the Second Backward Classes Commission under the chairmanship of B P Mandal to investigate the condition of the socially and educationally backward classes and suggest measures for their advancement in 1979. B P Mandal was a member of Parliament. The commission submitted its report in 1980 and identified as many as 3743 castes as socially and educationally backward classes. They constitute nearly 52 per cent of the population, excluding the Scheduled Castes and Scheduled Tribes. The commission recommended the reservation of 27% government jobs for the Other Backward Classes (OBCs). Thus, the total reservation for all (SCs, STs and OBCs) amounts to 50%. In 1990, after ten years, the V P Singh Government declared reservation of 27% jobs for the OBCs. Again, in 1991, the Narasimha Rao Government introduced two changes: (a) preference to the poorer sections among the OBCs in the 27% quota, i.e., adoption of the economic criteria in granting reservation, and (b) reservation of another 10% of jobs for poorer (economically backward) sections of higher castes who are not covered by any existing schemes of reservation.

However, in 1992, the famous Indra Sawhney & Others versus Union of India Case, the scope and extent of Article 16 (4), which provides for reservation of jobs in favour of backward classes, has been examined thoroughly by the Supreme Court. Though the Supreme Court has rejected the additional reservation of 10% for poorer sections of the higher castes, it upheld the constitutional validity of 27% reservation for the OBCs with certain conditions. These conditions are:

1. The advanced sections (the creamy layer) among the OBCs should be excluded from the list of beneficiaries of reservation.
2. No reservation in promotions, and reservation should be confined to initial appointments only. Any existing reservation in promotions can continue for five years only, i.e., up to 1997.
3. The total reserved quota should not cross 50% except in some extraordinary situations. This rule should be applied every year.
4. The ‘carry forward rule’ in case of unfilled (backlog) vacancies is valid. But it should not violate the 50% rule.
5. A permanent statutory body should be established to examine complaints of over-inclusion and under-inclusion in the list of OBCs.

The Government of India has taken actions in this regard in accordance with the rulings of the Supreme Court. The Narasimha Rao Government appointed the Ram Nandan Committee to identify the creamy layer among the OBCs. This committee submitted its report in 1993, which was accepted. Thus, the National Commission for Backward Classes was established in 1993 by an Act of Parliament. It considers inclusion in and exclusions from the lists of castes notified as backward for the purpose of job reservation.

Article 17- Abolition of Untouchability

Article 17 of the Constitution makes clear that the “untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of ‘untouchability’ shall be an offence punishable in accordance with law. The framers of the Constitution of India wanted to liberate the society from the inhuman practice of treating certain fellow human beings as dirty and untouchable by reason of their birth in certain castes. The objective of Article 17 is to abolish the caste system as expeditiously as possible for the smooth functioning of the rule of law and democracy in our country. Parliament is authorised to make a law prescribing the punishment for such an offence. Parliament has enacted the Untouchability (Offences) Act, 1955, which has been amended and renamed in 1976 as the Protection of Civil Rights Act, 1955.

The word ‘untouchability’ has not been defined either in the Constitution or in this Act. However, the Mysore High Court held that the ‘untouchability’ term used in Article 17 meant not literal or grammatical but the ‘inhuman practice as it had developed historically in the country’. It refers to the social disabilities imposed on certain classes of persons by reason of their birth in certain castes. Hence, it does not cover social boycotts of a few individuals or their exclusion from religious services, etc. The Untouchability (Offences) Act, 1955, declares the following acts as offences. These acts are described below:

1. Refusing admission to any person to public institutions, such as an educational institution, hospital, dispensary, hostels.
2. Preventing any person from entering any place of public worship or from worshipping therein.
3. Subjecting any person to any disability with regard to access to any shop, public restaurant, hotel or public entertainment or with regard to the use of any reservoir, tap or other source of water, road, cremation ground or any other place where services are rendered to the public.

In 1976, this Act was amended and renamed as the Protection of Civil Rights Act, 1955. Under the Protection of Civil Rights Act, 1955, also added more the following acts as offences. These acts are described below:

1. Insulting a person belonging to a Scheduled Caste on the ground of untouchability.
2. Preaching untouchability, directly or indirectly.
3. Justifying untouchability on historical, philosophical, religious grounds or traditional ones.

The Untouchability (Offences) Act, 1955, makes provision for penal sanction that the offences committed on the ground of untouchability are punishable either by imprisonment up to six months or by fine up to ₹500 or both. However, in 1976, the penal sanction has been enhanced by the Protection of Civil Rights Act, 1955, (a) in the case of subsequent convictions, the punishment may range from one to two-year imprisonment, (b) a person convicted of the offence of ‘untouchability’ shall be disqualified for election to the Parliament or State Legislature.

However, the Supreme Court has held that the fundamental right against untouchability guaranteed in this Article 17 is available against private individuals, and said that it is the constitutional duty of the State to take necessary steps to see that this fundamental right is not violated. Most importantly, it is the bounden duty of every citizen to ensure that untouchability is not practised in any form.

Article 18- Abolition of Titles

‘Title’ is something that hangs to one’s name, as an appendage. During British rule, the power to confer titles was being abused by the government for imperialist purposes and for corrupting public life. The framers of the Constitution wanted to seek to prevent such abuse by prohibiting the State from conferring any title at all. Article 18 abolished titles and makes four provisions in that regard:

1. It prohibits the State from conferring titles on anybody, whether an Indian citizen or a foreign national. However, an exception has been made in the case of military and academic distinctions.
2. It also prohibits a citizen of India from accepting a title from any foreign state.
3. A foreigner holding any office of profit or trust under the State cannot accept any title from a foreign State without the permission of the President.
4. No person holding any office of profit or trust under the State is to accept any present, employment, or office from or under any foreign State without the consent of the President.

Hence, it is clear that the hereditary titles of nobility like Maharaja, Raj Bahadur, Rai Saheb, Dewan Bahadur, etc, which were conferred by colonial States are banned by Article 18 because these are against the principle of equal status of all.

In 1954, the Government of India introduced civilian awards conferred by the President on Republic Day namely, Bharat Ratna, Padma Vibhushan, Padma

Bhushan and Padma Shri. Then, a question had arisen that these awards violated Article 18 of the Constitution. The protest raised by Acharya Kripalani against such civilian awards, which went unheeded earlier, the Janata Party Government headed by Morarji Desai discontinued such civilian awards in 1977. But such civilian awards were again restored in 1980 by the Indira Gandhi government.

However, in 1996, the matter was taken to court, and the Supreme Court upheld the constitutional validity of the National Awards, and ruled that these awards are not titles of nobility and hence, do not violate Article 14 or Article 18. The Supreme Court also ruled that such civilian awards should not be used as titles or prefixes or suffixes to the name of the awardees. If anyone used it as such, he/she should forfeit the award.

Article 19- Protection of Six Rights

At the time of the Constitution commencement, there were seven freedoms in Article 19, but that one of them, namely, ‘the right to acquire, hold and dispose of property’ has been omitted by the 44th Constitutional Amendment Act in 1978. Now at present, Article 19 of the Constitution specifically guarantees to the citizens of India six basic freedoms. These six basic freedoms 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 cooperative 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

The right to the protection of the six freedoms against State action is available to all citizens. These rights are not available to private individuals. Moreover, these rights are available only to citizens and shareholders of a company but not to foreigners or legal persons of corporations or companies, etc. The State can impose ‘reasonable’ restrictions on the enjoyment of these six rights only on the grounds mentioned in Article 19 itself and not on any other ground. Hence, Article 19 does not confer absolute or unlimited rights.

Freedom of Speech and Expression-

Every citizen has the right to freedom of speech and expression. In other words, every citizen is free to express his/her views, beliefs and convictions freely and without inhibitions by word of mouth, through writing, printing, picturing or in any other manner. Moreover, the Supreme Court held that the freedom of speech and expression includes the following:

1. Freedom of the press.
2. Right to propagate one’s views as well as views of others.
3. Freedom of commercial advertisements.
4. Right to telecast, that is, the government has no monopoly on electronic media.
5. Right against tapping of telephonic conversation.
6. Right against bundh called by a political party or organization.
7. Right to know about government activities.
8. Right against imposition of pre-censorship on a newspaper.
9. Freedom of silence.

The Constitution guarantees freedom of speech and expression. But this freedom is subject to reasonable restrictions imposed by the State relating to defamation, contempt of court, security of the State, friendly relations with foreign states, public order, incitement to an offence, and maintenance of the sovereignty and integrity of India.

Freedom of Assemble-

In India every citizen has the right to assemble peaceably and without arms. It includes the right to hold public meetings and demonstrations and take out processions peacefully. This freedom can be exercised only on public land, and the assembly must be peaceful and unarmed. The provision of the right to assemble does not protect violent, disorderly, riotous assemblies, or one that causes a breach of public peace or one that involves arms. This right does not include the right to strike.

The State can impose reasonable restrictions on the exercise of the right of assembling on the grounds of public disorder or a breach of the peace, or to prejudice the sovereignty or integrity of India.

A magistrate can restrain an assembly, meeting, or procession if there is a risk of obstruction, annoyance or danger of human life, health, or safety or a disturbance of the public tranquillity or a riot or any affair by Section 144 of Criminal Procedure Code of 1973.

Freedom of Association-

In India all citizens have the right to form associations or unions or co-operative societies. It also includes the right to form societies, clubs, companies, partnership firms, political parties, trade unions, organizations. It does not only include the right to start an association or union but also to continue with the association or union as such.

The citizens have complete liberty to form associations or unions for lawful purposes, but subject to reasonable restrictions imposed by the State in the interest of public order or morality or the sovereignty or integrity of India.

Thus, this freedom does not entitle any group of individuals to enter a criminal conspiracy or form any association dangerous to the public peace or to make illegal strikes or to commit a public disorder or to undermine the sovereignty or integrity of India. However, the right to obtain recognition of the association is not a fundamental right.

The Supreme Court held that the trade unions have no guaranteed right to strike. The right to strike can be controlled by appropriate industrial legislation. Similarly, nobody can be compelled to become a member of a government-sponsored union.

Freedom of Movement-

The right of every citizen of India “to move freely throughout the territory of India” is guaranteed under Article 19 by the Constitution of India. The citizens of India can move freely from one state to another or one place to another within a state.

Though every citizen has the right to move freely throughout the territory of India, but subject to reasonable restrictions imposed by the State in the interest of the general public or for the protection of any Scheduled Tribes.

Furthermore, the Supreme Court held that the freedom of movement of prostitutes can be restricted on the ground of public health and in the interest of public morals. Restrictions on the movements of persons affected by AIDS have been held by the Bombay High Court to be valid. However, the freedom of movement has two dimensions, the first one is internal (the right to move inside the country), and the second is external (the right to move out of the country). Article 19 protects only the first dimension and the second dimension is protected by Article 21.

Freedom of Residence-

The right of every citizen of India “to reside and settle in the territory of India” is guaranteed under Article 19 by the Constitution of India. This right has two dimensions: (a) the right to reside in any part of the country, which means to stay at any place temporarily, and (b) 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 important for promoting nationalism or avoiding narrow mindedness or removing internal barriers within the country.

Though every citizen has the right to reside and settle in the territory of India, but subject to reasonable restrictions imposed by the State in the interest of the general public or for the protection of any Scheduled Tribes. The right of outsiders to reside and settle in tribal areas is restricted to protect the language, customs and distinctive culture.

Furthermore, the Supreme Court held that certain areas can be banned for certain kinds of persons like prostitutes and habitual offenders. However, it is clear that the right to movement and the right to residence are overlapping to some extent. Both are complementary to each other.

Freedom of Profession and Trade-

The right of every citizen of India to practise any profession or carry on any occupation, trade or business is guaranteed under Article 19 by the Constitution of India. This right is very wide as it covers all the means of earning one’s livelihood. This provision makes clear that the right to carry on a business also includes the right to close it anytime depending upon its owner. Thus, no citizen can be compelled to carry on business against his/her will.

Like the various rights of freedom, the State can impose reasonable restrictions on the exercise of this right in the interest of the general public. Furthermore, the State can make law for prescribing professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business. Also, the State can carry on any trade or business to the exclusion of citizens wholly or partially. In fact, the State is competent to nationalise any trade or business wholly or partially to the exclusion of all citizens.

This right does not include the right to carry on a profession or business or occupation or trade that is immoral (trafficking in children or women) or dangerous (harmful drugs or explosives, etc,). The State can absolutely prohibit these or regulate them through licensing.

Article 20- Protection in Respect of Conviction for Offences

Article 20 guarantees protection against arbitrary and excessive punishment to an accused person, whether a citizen or a foreigner or a legal person like a company or a corporation. It contains three provisions in that direction:

1. Ex-post-facto law- According to clause (1), of Article 20, no person shall be convicted of any offence except for a violation of law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Thus, the Legislature is prohibited to make criminal laws retrospective.However, this limitation is imposed only on criminal laws, and not on civil laws or tax laws. The protection under this provision cannot be claimed in the case of preventive detention or demanding security from a person.
2. Double jeopardy- According to clause (2), of Article 20, no person shall be prosecuted and punished for the same offence more than once. The protection against double jeopardy is available only in proceedings before a court of law or a judicial tribunal. Hence, it does not immunize a person from proceedings which are not before a court of law.
3. Prohibition against self-incrimination- According to clause (3), of Article 20, no person accused of any offence shall be compelled to be a witness against himself/herself. The protection against self-incrimination extends to both oral evidence and documentary evidence. However, the immunity granted to the accused does not extend to compulsory production of material objects or compulsion to give specimen writing, specimen signature, finger impression or compulsory exhibition of body or giving of blood specimen.

However, Article 20 has been considered so important that the 44th Constitutional Amendment Act makes a provision in the Constitution that it cannot even be suspended during an emergency by an order under Article 359.

Article 21- Protection of Life and Personal Liberty

Article 21 of the Constitution declares that no person shall be deprived of his/her life or personal liberty except according to the procedure established by law. It means that no member of the Executive shall be entitled to interfere with the liberty of a citizen unless he/she can support his/her action by some provision of law. This right is available to both citizens as well as non-citizens. The word ‘law’ which figures in Article 21 of the Constitution would mean validity of enacted law, and in order to be a valid law, it must be reasonable, fair and just.

In 1950, the famous Gopalan case, the Supreme Court took a narrow interpretation of the ‘personal liberty’ held to mean only liberty relating to or concerning the person or body of the individual. Also, the protection under Article 21 is available only against arbitrary executive action and not from arbitrary legislative action. Later in 1978, in Maneka Gandhi versus Union of India Case, the Supreme Court overruled its judgment in the Gopalan case by taking a wider interpretation of Article 21. Therefore, it ruled that the right to life and personal liberty of a person can be deprived by a law provided the procedure prescribed by that law is reasonable, fair and just. Now, the Supreme Court said that the protection under Article 21 should be available not only against arbitrary executive action but also against arbitrary legislative action. Further, the Supreme Court held that the ‘right to life’ as embodied in Article

21 is not merely confined to physical existence but includes within its ambit the right to live with human dignity. In 1981, Francis Coralie versus Union Territory of Delhi, the Court said that the right to live is not restricted to mere animal existence. The Court further held that non-payment of minimum wages to the workers amounted to denial of their right to live with basic human dignity and violated Article 21.

The Supreme Court has added several rights in Article 21 to make life more meaningful and worth living. They may be enumerated as under:

1. Right to live with human dignity.
2. Right to a decent environment including pollution free water and air and protection against hazardous industries.
3. Right to privacy.
4. Right to health.
5. Right to shelter.
6. Right to livelihood.
7. Right to free legal aid.
8. Right to free education up to 14 years of age
9. Right against solitary confinement.
10. Right to speedy trial, fair and open trial.
11. Right against inhuman treatment.
12. Right against delayed execution.
13. Right against bar fetters and handcuffing.
14. Right to travel abroad.
15. Right against bonded labour.
16. Right against custodial harassment.
17. Right to emergency medical aid.
18. Right to timely medical treatment in government hospitals.
19. Right of prisoners to have necessities of life.
20. Right of women to be treated with decency and dignity.
21. Right against public hanging.
22. Right to hearing.
23. Right to information.
24. Right to reputation.
25. Right of appeal from a judgement of conviction.
26. Right to social security and protection of the family.
27. Right to social and economic justice and empowerment.
28. Right to appropriate life insurance policy.
29. Right to sleep.
30. Right to freedom from noise pollution.
31. Right to electricity.

Article 21A- Right to Education

Article 21A was added as a new Article by the 86th Constitutional Amendment Act of 2002. This amendment is a major milestone in the country’s aim to achieve ‘Education for All’. Article 21A provides that the State shall provide

free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. Thus, this provision makes only elementary education a Fundamental Right and not higher or professional education. However, the right of a child should not be restricted only to free and compulsory education, but it should be extended to have quality education without discrimination on the ground of the child’s economic, social and cultural background. 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. Now, there is scope for judicial intervention in this regard.

Article 22- Protection Against Arrest and Detention

Detention of persons without trial was a common feature of colonial rule. Article 22 grants protection to a person who is arrested or detained. However, detention is two types, namely, punitive and preventive. Punitive detention is, by definition, to punish a person for an offence committed by him/her after trial and conviction in a court. Preventive detention is, by definition, the detention of a person without trial and conviction by the court. Its purpose is not to punish a person for a past offence but to prevent him/her from committing an offence in the near future. Thus, preventive detention is only a precautionary measure and based on suspicion.

The clause (1) and clause (2) of Article 22 provides the following rights given to 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 enemy alien or a person arrested or detained under a preventive detention law.

The Supreme Court has clarified that the arrest or detention by rules of the clause (1) and clause (2) of Article 22 do not protect arrest under the orders of a court, civil arrest, arrest on failure to pay the income tax, and also deportation of an alien. These safeguards only apply to an act of criminal or quasi-criminal nature or some activity prejudicial to public interest.

The clauses (3) to (7) of Article 22 provide the protection to persons who are

arrested or detained under a preventive detention law. When a person has been arrested under a law of preventive detention, they have the following rights given under the preventive detention law:

1. The Government is entitled to detain such a person in custody only for three months. If it seeks to detain the arrested person for more than three months, it must obtain a report from an Advisory Board. The board is to consist of judges of the high court. The board examines the papers submitted by the Government and by the accused as to whether the extended detention is justified.
2. The person so detained shall, as soon as possible, be informed of the grounds of his/her detention excepting facts which the detaining authority considers to be against the public interest to disclose. The detenu has to be supplied with copies of all documents, statements and other materials relied upon on the ground of detention without delay.
3. The person detained must have the earliest opportunity of making a representation against the order of detention.

A law which violates any of the conditions imposed by Article 22, as stated above, is liable to be declared invalid and an order of detention which violates any of these conditions will, similarly, be invalidated by the Court, and the detained person shall be set free.

However, Parliament has the power to prescribe, by law, the maximum period for which a person may be detained under a law of preventive detention. Preventive detention means the detention of a person without trial. Preventive detention is distinct from punitive detention. The object of punitive detention is to punish a person for an illegal act committed by them. On the other hand, the object of preventive detention is to prevent him from doing something wrong which comes within any of the grounds specified by the Constitution, viz., acts prejudicial to the security of the state, public order, maintenance of supplies and services essential to the community, defence, foreign affairs, or security of India. However, the law of preventive detention is divided by the Constitution between the Union and the States. Parliament has exclusive power only when such a law is required for reasons connected with defence, foreign affairs, or 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 the state, the maintenance of public order, or the maintenance of supplies and services essential to the community.

The 44th Amendment Act of 1978 reduced the period of detention without obtaining the opinion of an advisory board from three to two months. However, this provision has not yet been brought into force, so the original period of three months still continues.

The following preventive detention laws made by Parliament are:

1. Preventive Detention Act of 1950: It was a temporary Act, originally passed for one year only. The term of this Act was extended several times until it expired at the end of 1969.
2. Maintenance of Internal Security Act (MISA):  It contains provisions broadly similar to those of the Preventive Detention Act of 1950.MISA’s aim was to prevent the anarchist forces’ subversive activities. MISA was repealed in 1978.
3. Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA): This Act was passed in 1974 by the Parliament. COFEPOSA aim is to prevent anti-social activities like smuggling, racketing in foreign exchange and the like. COFEPOSA still remains.
4. National Security Act (NASA): The Central and State governments have been given additional powers of preventive detention under the National Security Act of 1980 in order to protect the country’s or state’s defence and security and to maintain public order.
5. Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act (PBMSECA): The Central and State governments have been given powers of preventive detention under the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act of 1980 in order to maintain public order and essential supplies and services.
6. Terrorist and Disruptive Activities (Prevention) Act (TADA): To control the terrorist activities, the government had passed in 1985 the Terrorist and Disruptive Activities (Prevention) Act of 1985 (commonly known as TADA). This has widely been used to curb terrorism. However, TADA was repealed in 1995.
7. Prevention of Terrorism Act (POTA): Again, to control the terrorist activities, the government had passed in 2002 the Prevention of Terrorism Act of 2002 (commonly known as POTA). This has widely been used to curb terrorism. However, POTA was repealed in 2004.

However, 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. In India, preventive detention even existed during British rule.

Article 23-Prohibition of Traffic in Human Beings and Forced Labour

Our Constitution lays down certain provisions to prevent exploitation of the weaker sections of the society by unscrupulous individuals or even by the State. Article 23 says that traffic in human beings and other similar forms of forced labour are prohibited, and any contravention of this provision shall be an offence punishable in accordance with law. This right is available to both citizens and non-citizens. It protects the individual not only from private persons but also against the State.

In Article 23, the more comprehensive meaning of the term ‘traffic in human beings’ which includes a prohibition not only of slavery but also of traffic in children or women or the crippled, for immoral or other purposes. To punish

these acts, the Parliament has made the Immoral Traffic (Prevention) Act of 1956.

Article 23 prohibits ‘begar’ and also other ‘similar forms of forced labour’ like ‘bonded labour’. The term ‘begar’ means compulsory work without remuneration. Under the old zamindari system, the tenants were sometimes forced to render free service to their landlords. This was called ‘begar’. The term ‘forced labour’ means to compel a person to work against his/her will.

Clause (2) of Article 23 provides for an exception for the State to impose compulsory service for public purposes, such as, for example, military service or social service, for which it is not bound to pay. However, in imposing such service, the State is not permitted to make any discrimination on grounds only of religion, race, caste or class.

Article 24- Prohibition of Employment of Children in Factories, etc.

Article 24 says that no child below the age of fourteen years can be employed to work in any factory or mine or engaged in other hazardous employment. It must be noted that the prohibition imposed by Article 24 is absolute and does not admit any exception for the employment of a child in a factory or mine or in any other hazardous employment.

The Child Labour (Prohibition and Regulation) Act of 1986 is the most important law in this direction. The Child Labour (Prohibition and Regulation) Act of 2016 amended the Child Labour (Prohibition and Regulation) Act of 1986. It has renamed the Principal Act as the Child and Adolescent Labour (Prohibition and Regulation) Act of 1986. This Amendment Act prohibits the employment of children below 14 years in all occupations and processes. Earlier, this prohibition was applicable to 18 occupations and 65 processes. This Amendment Act also prohibits the employment of adolescents (14 to 18 years of age) in certain hazardous occupations and processes. This Amendment Act also introduces more stringent punishment for the offenders. It is an imprisonment of 6 months to 2 years or a fine of ₹ 20,000 to ₹ 50,000 or both. In case of repeated offences, the imprisonment is from 1 year to 3 years.

In 2006, the government banned the employment of children as domestic servants or workers in business establishments like hotels, dhabas, restaurants, shops, resorts, spas, tea-shops and so on. It warned that anyone employing children below 14 years of age would be liable for prosecution and penal action.

Article 25- Freedom of Conscience and Free Profession, Practice and Propagation of Religion

Article 25 says that all persons, not only citizens of India, are equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion. The implications of sentences of Article 25 are:

1. Freedom of conscience; Inner freedom of an individual to mould his relation with Creatures or God in whatever way he desires.
2. Right to profess: Declaration of one’s religious beliefs and faith openly and freely.
3. Right to practice: Performance of religious worship, rituals, ceremonies, and exhibition of beliefs and ideas.
4. Right to propagate: Each member of every religion has the right to spread or disseminate the tenets of his religion (say, by advocacy or preaching), but it would not include the right to convert another, because each man has the same freedom of conscience guaranteed by Article 25.

From the above implications of sentences of Article 25, it is clear that Article 25 covers not only religious beliefs (doctrines) but also religious practices (rituals). This right to religious freedom is, however, subject to public order, morality, health and other fundamental rights. Further, the State is permitted to:

1. To restrictions imposed by the State in the interests of public order, morality and health.
2. To regulations or restrictions made by the State relating to any economic, financial, political or other secular activity which may be associated with religious practice, but do not really appertain to the freedom of conscience.
3. To provide for social welfare and reform or the throwing open of Hindu temples etc. to all classes of Hindus.

Subject to the above limitations, a person in India shall have the right not only to religious belief but also to practice the rules observances dictated by such belief, and the right to freely preach his or her views.

Article 26- Freedom to Manage Religious Affairs

Article 25 provides the freedom of the individual to profess, practice, and propagate his/her religion. Article 26 provides that every religious denomination or any of its section shall have the following rights:

1. Right to establish and maintain institutions for religious and charitablepurposes.
2. Right to manage its own affairs in matters of religion.
3. Right to own and acquire movable and immovable property.
4. Right to administer such property in accordance with law.

It is clear that Article 25 makes provision for religious freedom of an individual person, while Article 26 makes provision for religious denominations or their sections.  Like Article 25, the rights under Article 26 are also subject to public order, morality, and health but not subject to other fundamental rights.

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

1. A collection of individuals who have a system of beliefs (doctrines) which they regard as conducive to their spiritual well-being.
2. It should have a common organisation.
3. It should be designated by a distinctive name.

Under the above criteria, the Supreme Court held that the ‘Ananda Marga’ and ‘RamaKrishna Mission’ are religious denominations within the Hindu religion. The Supreme Court also held that ‘Aurobindo Society’ is not a religious denomination.

Article 27- Freedom Not to Pay Taxes for Religious Promotion

Article 27 says that no person shall be compelled to pay any taxes for expenses on promotion or maintenance of any particular religion or religious denomination. In other words, the State should not spend the public money collected by way of tax for the promotion or maintenance of any particular religion. This provision prohibits the State from favouring, patronising and supporting one religion over the other. In other words, this provision is in keeping with the concept of secularism, which means equal respect for all religions. This means that the taxes can be used for the promotion or maintenance of all religions.

Article 27 prohibits only the levy of a tax and not a fee. This is because the purpose of the 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.

Article 28- Freedom from Attending Religious Instruction

Article 28 forbids totally any religious instruction being imparted in educational institutions wholly maintained by State funds. Further, even though religious instruction be imparted in educational institutions recognised by or receiving aid from the State, no person attending such institution shall be compelled to receive that religious instruction without the consent of himself or of his guardian (in case of pupil be a minor). In other words, while religious instruction is totally banned in State-owned educational institutions, in other denominational institutions it is not totally prohibited but it must not be imposed upon people of other religions without their consent.

However, 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 (1) type of educational institutions, religious instruction is completely prohibited while in (2) type of educational institutions, religious instruction is permitted. In (3) and (4) types of educational institutions, religious instruction is permitted on a voluntary basis.

Article 29- Protection of Interests of Minorities

Clause (1) of Article 29 says 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. Furthermore, in the clause (2) of Article 29, no citizen can be denied admission to any educational institution maintained or aided by the State on grounds only of religion, caste, race, or language.

The first provision of Article 29 protects the right of a group while the second provision of Article 29 guarantees the right of a citizen as an individual irrespective of the community to which he/she belongs. It grants protection to both religious minorities as well as linguistic minorities.

However, the Supreme Court held that the scope of Article 29 should not necessarily restrict to minorities only, it should also cover majorities. This is because of the use of the words ‘section of citizens’ in clause (1) of Article 29 that include minorities as well as the majority.

Article 30- Right of Minorities to Establish and Administer Educational Institutions

The Indian Constitution does not anywhere define the “minorities”. However, the expression “minority” has been used in two senses – one based on religion and the other on the basis of language.  Clause (1) of Article 30 says that all minorities, whether religious or linguistic, shall have the right to establish and administer educational institutions of their choice. Clause (1)(A) of Article 30 says that if the property of any minority institution is acquired, the compensation paid should be proper and adequate. This clause was added by the 44th Amendment Act of 1978 to protect the rights of minorities. Clause (2) of Article 30 provides that in the matter of giving aid, the State shall not discriminate against any educational institution managed by a minority.

Thus, the protection under Article 30 is confined only to minorities (religious or linguistic). This means that Article 30 is intended to protect only the rights of minorities. 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. Such minority educational institutions that seek recognition as well as aid from the State.
2. Such minority educational institutions that seek only recognition from the State and not aid.
3. Such minority educational institutions that neither seek recognition nor aid from the State.

The minority educational institutions of first and second types 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 minority educational institutions of the third type are free to administer their affairs but subject to the operation of general laws like contract law, labour law, industrial law, tax law, economic regulations, and so on.

In the year 2007, judgement delivered by the Supreme Court in the case of the Secretary of Malankara Syrian Catholic College v/s T. Jose & Others allowed the minority educational institutions to admit eligible students of their choice and to set up a reasonable fee structure. The SC also held that the right to establish and administer educational institutions is not absolute. Furthermore, the Supreme Court has summarized the general principles relating to the establishment and administration of minority educational institutions in the following way in this judgement:

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

1. 1. To choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution.
   2. To appoint teaching staff (teachers/lecturers and head-masters/principals) as also non-teaching staff, and to take action if there is dereliction of duty on the part of any of its employees.
   3. To admit eligible students of their choice and to set up a reasonable fee structure.
   4. To use its properties and assets for the benefit of the institution.

2. The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-a-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation etc., applicable to all, will equally apply to minority institutions also.
3. The right to establish and administer educational institutions is not absolute. Nor does it include the right to mal-administer. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).
4. Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of section.
5. Extension of aid by the State, does not alter the nature and character of the minority educational institutions. The conditions can be imposed by the State to ensure proper utilization of the aid, without however diluting or abridging the right under Article 30(1).

However, the rights of the minorities are not absolute and are subject to regulations. Reasonable regulations can be imposed for protecting the larger interest of the State and the nation. While imposing the regulations, the State shall be cautious not to destroy the minority character of the institution.

Article-31 Right to Property and Saving of Certain Laws

The right to property has proved to be the most complicated and controversial for the framers of the Constitution of India. The Constitution of 1949 had a three-fold provision for safeguarding the right of private property. It not only guaranteed the right of private ownership but also the right to enjoy and sell property free from restrictions other than reasonable restrictions.

It guaranteed to every citizen the right to acquire any property by any lawful ways such as inheritance, personal earning or other lawful ways, to hold it as his own and to dispose of it freely.  These rights can be restricted only by (a) to serve the exigencies of public welfare, and (b) to protect the interests of any Scheduled Tribe. However, the restrictions must be ‘reasonable’, from the substantive as well as the procedural standpoints.

Under clause (1) of Article 31, the Constitution guaranteed that no person shall be deprived of his/her property save by the authority of law. This implied that, short of the consent of the owner, a man’s property can be taken only by the consent of the nation as embodied in the laws passed according to the Constitution. Any property which is seized by the police or the Government without proper legal authority will be released at the intervention of the Courts.

This clause of Article 31 was intended to be a protection against the executive, but not against the legislative.

However, the Constitution enjoined that if the State wants to acquire the private property of an individual or to requisition (that is, to take over its possession for a temporary period) it, it could do so only on two conditions-

(a) It should be for public purpose, and

(b)  The State should provide for payment of compensation (amount) to the owner of property by under clause (2) of Article 31.

The Fundamental Right to Property has been the most controversial right since the time of the commencement of the Constitution. Confrontations between the Supreme Court and the Parliament have been caused due to the Right to Property several times. Thus, it has led to a number of Constitutional amendments, that is, 1st, 4th, 17th, 25th, 39th, 40th and 42nd Amendments. By a number of successive amendments, certain exceptions to Article 31 (2) were introduced, in Article 31A-31D, to exclude the obligation to pay any amount as compensation for acquisition by the State or nationalisation. These exceptions to the obligations under Article 31 are discussed in detail below one by one. However, the last exception, Article 31D, has been repealed by the 43rd Amendment Act, 1977.

However, the Congress Government for over a quarter of a century had eaten into the vitals of Article 31 (2) by successive amendments, it was left to the Janata Government to eliminate the Right of Property altogether from the list of Fundamental Rights in Part III. Therefore, the 44th Amendment Act of 1978 abolished the right to property as a Fundamental Right by repealing Article 19 (1)(f) and Article 31 from Part III. This Amendment Act made a separate new Article 300A in Part XII under the heading ‘Right to Property’. It provides that ‘no person shall be deprived of his/her property save by authority of law’. The word ‘law’ which figures in Article 300A of the Constitution would mean validity of enacted law, and in order to be a valid law, it must be just, fair and reasonable.

The compensation has to be understood in relation to the right to property. The right of the ousters is protected only to a limited extent as enumerated in Article 300A of the Constitution. In other words, if an individual’s property is taken away by a public official without legal authority or in excess of the power conferred by the law in this behalf, he/she can no longer have a speedy remedy direct from the Supreme Court under Article 32 (because the right under Article 300A is not a Fundamental Right). He shall have to find his remedy from the High Court under Article 226 or by an ordinary suit.

Thus, the ‘right to property’ still remains a legal right or a constitutional right, though no longer a fundamental right. It is not a part of the basic structure of the Constitution. In spite of the repeal of Article 31, Article 31A, 31B and 31C remain part of the Fundamental Rights. These Articles have been retained as exceptions to Fundamental Rights.

Article 31A- Saving of Laws Providing for Acquisition of Estates, etc.

Article 31A was added by the 1st Amendments in 1951 and amended by the 4th, 17th, 42nd and 44th Amendments. Article 31A relates to a law for the acquisition by the State of any ‘estate’ or land. It makes a provision taking out the acquisition of land from the obligation to pay compensation. It also protects five categories of laws from being challenged and invalidated on the ground of contravention of the fundamental rights conferred by Article 14 and Article 19.

Article 31A does not immunise a state law from judicial review unless it has been reserved for the president’s consideration and has received his/her assent. This Article also provides for the payment of compensation at market value when the state acquires the land of any person’s his/her cultivation land and the land is within the statutory ceiling limit.

Article 31B- Validation of Certain Acts and Regulations

Article 31B was added by the 1st Amendments in 1951. It offers almost complete exception to all the fundamental rights enumerated in Part III. If any enactment is included in the 9th Schedule, which is to be read along with Article 31B, then such enactment shall be immune from constitutional invalidity on the ground of contravention of any of the fundamental rights. But it shall be open to challenge on the ground of damage to the basic structure of the Constitution subsequent to 24 April 1973 (i.e., the date of decision in Keshavananda’s case).

Article 31C- Saving of Laws Giving Effect to Certain Directive Principles

Article 31C was added by the 25th Amendments in 1971 and amended by the 42nd and 44th Amendments. It provided that no law that seeks to implement the socialistic directive principles specified in Article 39(b) or 39(c) shall be void on the ground of contravention of the fundamental rights conferred by Article 14 or 19. 

But the effectiveness of Article 31C was crippled by the decision of the majority of the Supreme Court in the case of Kesavananda that judicial review is one of the essential features of the Indian Constitution which cannot be taken away by the process of amendment under Article 368, and that, accordingly, that part of Article 31C, which stated that any legislative declaration that a particular law was made to implement the Directives in Article 39(b)-(c) shall not be open to question in a Court, is itself unconstitutional.

After the Kesavananda case, the 42nd Amendment Act, 1976, extended the scope of Article 31C by including within its protection any law to implement any of the directive principles specified in Part IV of the Constitution and not merely in Article 39(b)-(c). However, this extension was declared unconstitutional and invalid by the Supreme Court in the Minerva Mills case (1980).

Article 32- Right to Constitutional Remedies

Only the declaration of fundamental rights in the Constitution is meaningless,

useless and worthless without providing effective machinery for their enforcement, if and when they are violated.  At the time of framing the Constitution, Dr. Ambedkar had described this provision as the very soul and heart of the Constitution. Article 32 confer the right to remedies for the enforcement of the fundamental rights of an aggrieved citizen. In other words, the right to get the Fundamental Rights protected is in itself a fundamental right. The Supreme Court has ruled that Article 32 is a basic feature of the Constitution. Hence, it cannot be abridged or taken away even by way of an amendment to the Constitution.

Clause (1) of Article 32 says that the right to move the Supreme Court by appropriate proceedings for the enforcement of the Fundamental Rights is guaranteed. Clause (2) of Article 32 says that the Supreme Court shall have power to issue directions or orders or writs for the enforcement of any of the fundamental rights. The writs issued may include habeas corpus, mandamus, prohibition, certiorari, and quo-warranto. Parliament may empower any other courts also the exercise these powers. The rights so guaranteed by Article 32 cannot be suspended except during a Proclamation of Emergency.

Thus, it is clear that the Supreme Court has been constituted as the defender and guarantor of the fundamental rights of the citizens. However, the Supreme Court, under Article 32, cannot determine a question that does not involve Fundamental Rights. The sole object of Article 32 is the enforcement of the fundamental rights guaranteed by the Constitution. Only the fundamental rights guaranteed by the Constitution can be enforced under Article 32 and not any other right like non-fundamental constitutional rights, statutory rights, customary rights and so on. When the fundamental rights of any citizen are violated, the aggrieved party has the option of moving either the high court or Supreme Court directly. The Supreme Court and High Court have a power to issue directions, orders and writs of all kinds for the enforcement of the Fundamental Rights.

Writs- Types and Scope

The Supreme Court under Article 32 and the High Court under Article 226 can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo-warranto. However, the Parliament under Article 32 can empower any other court to issue these writs. Because no such provision has been made so far, only the Supreme Court and the High Court can issue the writs and not any other court. Before 1950, only the High Courts of Bombay, Calcutta and Madras had the power to issue the writs. These writs are borrowed from English law where they are known as “prerogative writs “. The writ jurisdiction of the Supreme Court differs from that of a high court in three respects:

1. The power of the High Court to issue writs is wider than that of the Supreme Court. Under Article 32 of the Constitution, the Supreme Court has the power to issue writs only for the purpose of enforcement of the Fundamental rights, whereas under Article 226, a High Court can issuewrits not only for the purpose of enforcement of the Fundamental Rights but also for any other purpose.
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.
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.

The meaning and scope of different kinds of writs mentioned in Article 32 and 226 of the Constitution are discussed in detail below:

1. Habeas Corpus: The words ‘habeas corpus’ literally mean ‘to have a body of’. It is an order issued by the court to a person who has detained another person to produce that person before the court. Through this writ, the court secures the body of a person who has been imprisoned, and the court also examines the cause and legality of the detention. It would set the detained person free if there was no lawful justification for the imprisonment. Through this writ may be addressed to any person whatever, an official or a private person who has another person in his/her custody and disobedience to the writ is met with punishment for contempt of court. The writ of habeas corpus is thus a very powerful safeguard against arbitrary acts not only of private individuals but also of the executive.
2. Mandamus: Mandamus literally means a command. It is a command issued by the court to a public official asking him/her to perform his/her official duties that he/she has failed or refused to perform. This writ 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 (a) against the President of India or the state governors (b) against private individuals or body (c) against the chief justice of a high court acting in judicial capacity.
3. Prohibition: The object of the prohibition writ is to compel inferior courts to keep themselves within the limits of their jurisdiction. The writ of Prohibition differs from the writ of mandamus in that while mandamus commands activity, prohibition commands inactivity. Further, while mandamus is available not only against judicial authorities but also against administrative authorities, prohibition is issued only against judicial or quasi-judicial authorities. The prohibition writ is not issued against administrative authorities, legislative bodies, and private individuals or bodies.
4. Certiorari: In the literal sense, certiorari 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. Unlike prohibition, which is only preventive, certiorari is both preventive as well as curative. The certiorari writ could be issued only against judicial andquasi-judicial authorities. It is not issued against administrative authorities. However, in 1991, the Supreme Court ruled that the certiorari writ can even be issued against administrative authorities affecting rights of individuals. The certiorari writ is also not available against legislative bodies and private individuals or bodies.
5. Quo-Warranto: Quo-warranto is issued by the court to enquire into the legality of a claim of a person to a public office. Hence, it prevents illegal usurpation of public office by a person. This writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution. It cannot be issued in the case of a private office. Quo-warranto is a very powerful instrument for safeguarding against the usurpation of public offices.

Article 33- Armed Forces and Fundamental Rights

Article 33 empowers the Parliament to modify the application of the Fundamental Rights to the members of armed forces, paramilitary forces, police forces or intelligence organizations so as to ensure proper discharge of their duties and maintenance of discipline amongst them. The power to make law under Article 33 is conferred only on Parliament and not on State legislatures. Any such law made by Parliament cannot be challenged in any court on the ground of contravention of any of the fundamental rights. The Central Government to make rules restricting the fundamental rights of the defence personnel for the sake of discipline, which is absolutely essential to maintain the security of India.

‘Members of the armed forces’ in Article 33 also covers such employees of the armed forces as barbers, carpenters, mechanics, cooks, chowkidars, bootmakers, tailors who are non-combatants.

Article 34- Martial Law and Fundamental Rights

Article 34 provides for the restrictions on fundamental rights when martial law has been in force in any area within the territory of India. It empowers the Parliament to indemnify any government servant for any act done by him/her in connection with the maintenance or restoration of order in any area where martial law was in force. The Parliament can also validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such an area.

The Act of Indemnity made by the Parliament cannot be challenged in any court on the ground of contravention of any of the fundamental rights. However, the expression ‘martial law’ has not been defined anywhere in the Constitution of India. Literally, it means ‘military rule’. The martial law is imposed under extraordinary circumstances like war, invasion, insurrection, rebellion, riot or any violent resistance to law. During the operation of martial law, the military authorities are vested with abnormal powers to take all the necessary steps. They impose restrictions and regulations on the rights of the civilians, can punish the civilians and even condemn them to death.

Article 35- Effecting Certain Fundamental Rights

Article 35 lays down that the power to make laws to give effect to certain specified fundamental rights shall vest only in the Union Parliament and not in State Legislatures. These fundamental rights are Article 16, Article 17, Article 23, Article 32, Article 33, and Article 34.

It should be noted that Article 35 extends the competence of the Parliament to make a law on the Articles specified above, even though some of those matters may fall within the sphere of the state legislatures.

Right Outside Part III

There are certain other rights contained in other parts of the Constitution besides the Part III of the Constitution. These rights are known as constitutional rights or legal rights or non-fundamental rights. They are:

1. No tax shall be levied or collected except by authority of law (Article 265 in Part XII).
2. Trade, commerce and intercourse throughout the territory of India shall be free (Article 301 in Part XIII).
3. No person shall be deprived of his property save by authority of law (Article 300A in Part XII).
4. The elections to the Lok Sabha and the State Legislature Assembly shall be on the basis of adult suffrage (Article 326 in Part XV).

The above rights are also equally justifiable, but they are different from the fundamental rights. In case of violation of a fundamental right, the aggrieved person can directly move the Supreme Court for its enforcement under Article 32. But, in case of a violation of the above rights, the aggrieved person cannot avail this constitutional remedy. He can move the High Court under an ordinary suit or under Article 226.

To know about the Article Related to Fundamental Rights, refer to the table below

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