Fundamental Rights in India – Part 2

Article 22 Protection Against Arrest and Detention

Punitive detention is to punish a person for an offence committed by him after trial an d conviction in a court .
Preventive detention , on the other hand, means detention of a person without trial and conviction by a court . Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future

Detention under ordinary law
The following rights on a person who is arrested or detained under an ordinary law
(1) Right to be informed of the grounds of arrest .
(ii) Right to consult and be defended by a legal practitioner.
(iii) Right to be produced before a magistrate within 24 hours, excluding the journey time.
(iv) Right to be released after 24 hours unless the magistrate authorises further detention .

protection to persons who are arrested or detained under a preventive detention law
(1) The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention . The board is to consist of judges of a high court. – Real test for article 22(4) is whether delay is explained . Time taken in investigating may excuse delay

(i i ) The grounds of detention should be communicated to the detenu . However , the facts considered to be against the public interest need not be disclosed.

(iii ) The detenu should be afforded an opportunity to make a representation against the detention order

“Th e preven t ive det en t ion laws m ade by t h e Parl iam en t are:
(a) Preven t ive Det en t ion Act , 1950. Ex pi red in 1969.
(b) Main t en an ce of I n t ern al Secu ri t y Act (MI SA), 1971
Terrori st an d Di sru pt ive Act ivi t ies (Preven t ion ) Act (TADA), 1985.
Preven t ion of Terrori sm Act (POTA), 2002″
No democratic country in the world has made preventive detention as an integral part of the Constitution as has been done in India
Article 21 may also supplement the various requirements laid down in article 22
“On June 27 1975, the exercise of powers conferred by clause (1) of Article 359 of the Indian constitution were enforced, within which the right of any person including a foreigner to move to the court to enforce Article 14 (right to equality), Article 21 and Article 22 (prevention against detention in certain cases) of the Constitution and all the proceedings pending in any court concerned with the enforcement of the aforementioned articles will remain suspended for the period of Emergency.

What ensued was a string of illegal and hasty detentions without charge or trial, including those of the major leaders of the opposition party such as Moraji Desai, Atal Bihari Vajpayee, Jayprakash Narayan and L.K.Advani under the Maintenance of Internal Security Act, Preventive Detention Law (MISA). Consequently several writ petitions were filed all over the country. Records show that nine High Courts ruled in favour of the petitioners stating that even though Article 21 was not enforceable, a person could still demonstrate that their detention was not in compliance of the law under which they were detained, or that the action by the State was mala fide or that it was a case of mistaken identity. Highly perturbed the government decided to appeal against these decision in the Supreme Court, which became what is called the Additional District Manager of Jabalpur vs. Shiv Kant Shukla case or the Habeas Corpus case.”

Right against Exploitation

Art 23 Prohibition of traffic in human beings and forced labour
The expression ‘traffic in human beings’ include
1. selling and buying of men , women an d children like goods;
2. immoral traffic in women and children , including prostitution
3. devadasis
4. slavery
5. Begar and forced labour

The Bonded Labour System (Abolition ) Act , 1976; the Minimum Wages Act , 1948; the Contract Labour Act , 1970 were passed to prevent forced labour

Art 24 Prohibition of employment of children in factories, etc.

No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment

Child Labour (Prohibition and Regulation ) Act , 1986 and other similar acts prohibit the employment of children below certain age.
In 1996, the Supreme Court directed the est ablishment of Child L abour Rehabilitation Welfare Fund in which the offending employer should deposit a fine of ` 20,000 for each child employed by him . It also issued directions for the improvement of education , health and nutrition of children .
In 2006, the government banned the employment of children as domestic servants or workers in business establishments like hotels, dhabas, restaurants, shops, f actories, resorts, spas, tea-shops and so on . It warned that anyone employing children below 14 years of age would be liable for prosecution an d penal action .
Presently , children under the age of 14 are prohibited from employment in “hazardous occupations and processes” while their conditions of work in non -hazardous occupations and processes are merely regulated. The amendments include increasing the age of prohibition for employment of children and adolescents in hazardous occupations, such as mining , from 14 to 18.

Right to Freedom of Religion

Arts.25—30 25 Subject to public order, morality and health , all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion Tater PPP contract
26 Freedom to manage religious affairs. Udit affairs with muslim girl in Accenture
27 Freedom as to payment of taxes for promotion of any particular religion. Mandal hotel – amad said I wont give tax on bill as I have ate bakra to promote my religion on bakra eid Rajat bill leke gya mandal ke hotel mei
28 No religious instruction shall be provided in any educational institution wholly maintained out of State funds Raja giving religious intruction to amir nt to tlk to us

Cultural and Educational rights
C 29 “Any sectionhaving a distinct
language, script or culture of its own shall have the right
to conserve the same.”
“No citizen shall be denied admission into any
educational institution maintained by the State or
receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them.”

30 “All minorities, whether based on religion or
language, shall have the right to establish and administer
educational institutions of their choice”
Right to constitutional remedy
32 habeas corpus, mandamus, prohibition, quo warrantoand certiorari B R Ambedkar Life & soul of constitution
certiorari

Secularism
“In the U.S.A. the separation between State and religion meansvthat neither the State nor religion can interfere in the affairs of one another.Unlike the strict separation between religion and the State in American secularism, in Indian secularism the State can intervene in religious affairs. In US , legislature cannot declare any religion as the official religion. Nor can they give preference to one religion. But India has declared that it has no religion , and it can prohibit one religion at the cost of other , and give prefernece to minority till public order is maintained ( Ex pagri) .It can intervene ,art 25 2 b .
In February 2004, France passed a law banning students from wearing any conspicuous religious or political signs or symbols such as the Islamic headscarf, the Jewish skullcap, or large Christian crosses.”
Right to freedom of religion Secularism Art 25 (1) “Subject to public order, morality and health, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

What is the dividing line between the two is for the court to determine. “
“only a secular State can realise its objectives to ensure the following:
1. that one religious community does not dominate
another; art 26- majoirty cant dominate religiously , art 27 – cant dominate economically , 28 – cnt dominate in education by being forced in educational institutions
2. that some members do not dominate other members of
the same religious community; art 25 2 (b)
3. that the State does not enforce any particular religion
nor take away the religious freedom of individuals. art 25 1″ Ex : sikhs allowed to wear pagris in public as they can profess and practice their religion in public , as it does harm the public order
Christian missionaries are allowed to propagate their religion as long as there is no forceful conversions , bcoz forceful conversions breaks public order

Art 25 (2) a State can make any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice
“This means state can regulate any religious activity . This is an extension of Art 25 (1) . These restrictions or regulations should be primarily concerned
with the secular aspects of religious practice rather than with the essentials of religion”

Art 25 (2) b State can make any law providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus ( hindus means hindus , sikhs and buddhists- Laxmikant)
“Constitution makers wanted to remove ills of hindu society and ensure that some members do not dominate other members of
the same religious community,( as in untouchability, hindu women rights) { but feared that incorporating muslims wud lead to intolerance} , so Uniform civil code was introduced based on this article , to remove ills of hindu society”

In keeping with this idea of religious freedom for all, India also adopted a strategy of separating the power of religion and the power of the State ( i.e state religion to none ). Secularism refers to this separation of religion from the State. So , In India,government spaces like law courts, police stations,government schools and offices are not supposed to display or promote any one religion.

Art 15 4 “for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled
Tribes in so far as such special provisions relate to their admission to educational institutions – i.e allows state to make positive discrimination so to protect minority against majority ( not on the basis of religion but on basis of social and educational backwardness , give them reservation in education ( not on religion ) but bcoz muslims are socially backward they get reservations in education under OBC , minority .- This interpretation is my own”

Art 26 every religious denomination can establish and maintain , manage , own and acquire and administer religious institution
“Autonomy in promoting and managing religious institutions. Here , govt is not aiding to religious institutions , but allowing them to function on their own . But 28 3 says state can give aid to religious institution , but that religious institution cant give religious instruction , as he has taken govt money , and not 1 pint of communal blood shud touch govt money as govt has no religion. so if u want give relious instruction , then dont use govt funds 26 B means they can manage affairs thru religious institutions ( even hindus can ) but shud nt harm public order .
26 b is diff from 25 1 bcoz in 25 1( though bth alllows to profess religious affairs), u cn perform religious activity anywhere , but in 26 b , u r referring to activities in a religious institution , so its scope is less than 25 1 , though a part of it.”

Art 27 Freedom as to payment of taxes for promotion of any particular religion
“Article 27 is one of lhe essential consequences of secularism. A ‘tax’ is a compulsory exaction of money for public purpose. If the State exacts money through a taX whoSe proceed are assigned for the benefit of a particular religion. obviously the State favours, patronises and supports that
particular religion. Hence the prohibition against such taxes, The distinction between ‘tax’ and ‘fee’ has been adhered to in the context of this article also so that fees for secular regulation can be charged for defraying expenses of administrative regulation , and not for promotion or maintain religion. ”

A common burden (e.g. land revenue) imposed on all does not violate article 26(c) and article 26{d) or 27

Art 28 (1) “No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
This line says state has no religion(ithough only in education , but I assume its for every field)( though it says only and no religion can be imparted in a state funded institution .So , durga pandals don’t/shouldnt occur in govt schools .( durga pandals happens bcoz constitution says state will not perform religious instruction , though individuals can perform it , till it is in public order”
Art 28 (2) Religious instruction can be given to an educational institution which is administered by the State but has been established under any endowment or trust i.e it is permitted
Art 28 (3) “No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution . i.e voluary participation , jisko aana hai aa jao , nhi aana toh maa chudao . I wont force u
i.e A religious instruction/activity if imparted( though art 28 1 says , it shud not , but if imparted in any state funded education , an individual cant be compelled to attend . He shall go if he wishes . To stop forceful behaviour of one religious community to the other”

Indian Constitution guarantees Fundamental Rights that are based on these secular principles. Teaches religious tolerance
Article 28 of the Constitution prohibits imparting religious instruction in educational institutions which are run or aided by the State. This article has been grievously misrepresented so that spiritual education has been made out of bounds in educational institutions. Religious means the manifestation of the divinity inherent in man (Vivekananda). It could never have been intended by the founding fathers of the Constitution to exclude the manifestation of the divinity in students. On the contrary, manifestation of divinity and manifestation of perfection inherent in man constitute the first and foremost purpose of education. There cannot be a shred of doubt that this was not and could not be prohibited. What was prohibited was sectarian education, that is, promotion of philosophy of any particular sect or sects. Truly speaking, instruction for spiritual development is the basis and foundation of man-making education.

Khilafat question that gandhi mixed religion with politics can be given here .. Ie India declares that state has no religion , but take steps to promote public order , morality ,health..Similarly , gandhiji though secular , but to prevent /undo the injustice done by british to khalifa , took steps , that doesnt make him communal.

Cultural and Education Rights

Protection of interests of minorities
Art 29 (1) Any section of the citizens having a distinct language, script or culture of its own shall have the right to conserve the same.
Although, commonly article 29( I) is assumed to relate to minorities, its scope is not necessarily confined, as it is available to “any section of citizens resident in the territory of India”. This may well include the majority

Art 29 (2) Further , no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion , race, caste, or language.
It guarantees the right of a citizen as an individual irrespective of the community to which he belongs.
The Supreme Court also held that the right to conserve the language includes the right to agitate for the protection of the language. Hence, the political speeches or promises made for the conservation of the language of a section of the citizens does not amount to corrupt practice under the Representation of the People Act , 1951.

Right of minorities to establish and administer educational institutions.

Art 30 All minorities, shall have the right to establish and administer educational institutions of their choice.

Article 30 is confined to minorities-whether based on religion or Janguage-and unlike article 29(1), it cannut be availed of by any ‘section of cnizens’

Art 32 Right to Constitutional Remedy Heart and soul of Constitution – Ambedkar Art 139 + 226 See diff.. Btn SC and HC writ

The Constitution provides that the President can suspend the right to move any court for the enforcement of the fundamental rights during a national emergency (Article 359).

Writs habeas corpus means ‘to have the body of – see Rowlatt act
mandamus “a command issued by the court to a public official asking him to perform his official duties that he has failed or refused t o perform .
Supreme Court has issued directions to check the evil of child prostitution . Directions can be issued to control pollution . Supreme Court issued directions for revival of a company (viable units) having regard to the fact that living had been denied to 10,000 workm for five years; “
Prohibition issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction
Certiorari “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.
Certiorari may be issued where the law. under which the decision was given is void , the decision itself violates a fundamental right , the decision is against natural justice (“fair play in action” ),”
Quo- warranto Issued by the court to enquire in to the legality of claim of a person to a public office. Hence, it prevents illegal usurpation of public office by a person .

Article 32 cannot be invoked simply t o determine t h e constitutionality of an executive order or a legislation unless it directly in fringes any of the fundamental rights
The jurisdiction of the Supreme Court is original but not exclusive. It is concurrent with the jurisdiction of the high court under Article 226.

“In all economic cases. judicial inquiry is confined to the question whether the findings of fact are resonably based on evidence, and whether such findings are consistent with the laws of the land;
Judicial review under articles 32 and 226 is ~ basic feature of the Constitution beyond the pale of amendability”

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8 thoughts on “Fundamental Rights in India – Part 2

  1. there is one question in my mind …why is always Indian Prime Minister goes for any meeting held at foreign Countries , why not President of India ?

    • Because Prime minister is the actual/real head of the government while the President is the nominal head of the government . Also , because Prime minister is directly elected by the people of the country , so he is the real head of the country , while President is indirectly elected by the members of Parliament and legisature . So Prime minister has all the powers

    • Countries like USA , China , etc have a presidential system of govt . where the head of the govt. is the President , while countries like England , Australia , Canada have parliamentary system of govt. where the head of the govt. is the President. So countries sends their head of representatives to international forums depending on the typr of system . To understand presidential and parliamentary system of govt. plz refer to Laxmikant . 🙂

  2. Federal system structure in India,how it relates the involvement of Mughal in India ? And what is Federal system kindly explain….

    • Bcoz in Bengal after Battle of plassey , robert clive introduced Dual system of administration in 1765 , where the East India company had the revenue and police and judicial powers , while the Nawab had to carry day to day welfare activities for the people , thus delagating his powers to the British .

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