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Territory of the Union (PART – I)
Ø Art 1 (1) – The name of the union is India or Bharat and the members of this union at present are the 28 states and 7 union territories.
Difference between union of India and territory of India
1) Union of India – Union of India includes only states which enjoy the membership in the Federal System of India
2) Territory of India – The entire territory over which the sovereignty of India, for the time being extends – Two classes of territories. (i) Union territories(Uts) (ii) territories that may be acquired by India.
Ø Ist schedule contains the territories and states of India.
Ø The UT Pondichery got the legislature of their own through Pondicheri (Administration Act ) 1962 Under Art 239A.
Ø Art 239AA, 239A were inserted by an amendment in 1992 and Delhi was given the name national capital territory (NCT) and was provided with a legislature and a ministry.
Ø Art 239-240 Union territories are centrally administered areas to be governed by the president through an administrator.
Ø Art 246(4) – Any territory purchased, conquered etc will be the part of Indian territory and these territories will be administrated by the government of India.
Ø As per Art – I the territory of India can be classified into three – (1) territories of states (2) Union territories (3) Territories acquired by Government of India
States / UTS Acquired from
Goa Portuguese (1961) Goa was given
Daman & Diu state status In 1987)
Pondicherry French (1954)
Dastra & Nagar Haveli Portuguese (1961)
Ø Provisions related to the states are applicable to all states in India except Jammu & Kashmir
Ø Special provisions related to states applicable to (Under part XXI) the states of Maharashtra, Gujarat, Andhra Pradesh, Assam, Nagaland, Manipur, Sikkim, Mizoram, Arunachal Pradesh and Goa. These special provisions can override the general provisions related to the states.
Ø 5th & 6th schedule of constitutions contains separate provision for the administration of scheduled and tribal areas.
Ø Modes of acquiring territories By way of gift, lease, purchase, plebiscite, following treaty occupation, conquest several foreign territories have been acquire by the Govt. of India like Goa, Daman & Dou, Dutra & Nagar Haveli, Pondicherry, Sikkim etc
The case of Sikkim
Ø Sikkim was under monarchical rule and was ruled by the King Chogyal subject to British paramountcy But in 1890 there was an agreement with China on the boundary of Sikkim
Ø Sikkim became a protectorate of India after the independence of India (Govt. of India took the responsibility of defence, communication and external affairs of Sikkim, After a section of people in Sikkim opined the states merger with to India)
Ø Govt. of India appointed a political officer to look after the affairs of Sikkim
Ø 1974 Sikkim assembly passed Govt. of Sikkim act and the act provided for the states union with India.
Ø 35th amendment act 1974 – Sikkim will not be a territory of India but it will be an associate state and they will sent two representatives to parliament
Ø The criticism over the 35th amendment was, there was no room for associate state in the original constitution. But soon Sikkim was admitted as the 22nd state of India. In the first schedule of constitution and criticism over the associate state hood lost currency.
Ø Chogyal dissented the state union with India. But the people through a referendum, expressed their wish to join with India. By 36th amendment act of 1975 Sikkim was admitted to Indian union as a state by amending first schedule of the constitution.
Ø Art – 2 - Provides two powers to the parliament
(1) To admit new states to the union of India
(2) power to establish new states
Ø Art – 3 – It provides the parliament the power to
(1) increase the area of states
(2) decrease the area of states
(3) change the names of the states
(4) change the boundaries of the state
(5) Form New states by dividing any other states or uniting two states (6) attaching any part of its territory to any states
Ø Conditions in Art – 3
(1) A bill on the provisions of Art 3 can be introduced in the parliament only on the prior recommendation of the president
(2) Before his recommendation the president should refer the case to the state legislature concerned to obtain their view within a stipulated periods even though the president or parliament is not bound to the views of the state legislature concerned.
Ø No reference to the legislature is needed in the case of UTs when parliament invoke the provisions of Art 3 on them.
Ø If the state does not respond to the presidential reference in connection with the provision of Art 3 within the specified time limit, the time limit may be extended. The bill may be introduced without the opinion of the state concerned.
Demand for New states
States New states demanded
States = categories
Part A - Old governors provinces (9 in No)
Part B - Princely states ( 9 in No)
Part C - Chief commissioners province & some earstwhile
princely states (Total 10 Nos)
Part – D - Andaman & Nicobar Islands
Art – 4 - Declares that laws made for admission of new states or creation of states under article – 2 or law made under the provisions of Art 3 cannot be considered as a constitutional amendment under Art 368. Such laws only requires a simple majority in the parliament to get passed.
Ø In 1960 a presidential reference came in front of parliament to cede Beribari Union (WB) to Pakistan (Under Art – 3) But the supreme court interfered in this case and opined that the power of parliament to diminish the area of a state cannot be used to cede a part to a foreign country and such cessasion can only be done through a constitutional amendment under Art 368. So as per 9th constitutional amendment of 1960 the territory was ceded to Pakistan.
Ø J & K enjoys special states as per Art 370 which came into effect in Nov. 17, 1952. A separate constitution for the state was drafted by the constituent assembly of J & K and became effective on January 26, 1957.
Reorganization of India states
Ø As per India independence Act, the princely states was given three option –
(1) Join with Indian Union,
(2) Join with Pakistan &
(3) Stay independent. So Hyderabad, Junagarh and J & K decided to stay independent. After the independence out of 552 states situated in India, 549 states joined with Indian Union and the above three states remained independent.
But later these states were attached to India through various means
(1) Hyderabad through Police action,
(2) Junagarh through referendum
(3) J &K through instrument of accession.
Ø The constituent assembly appointed S.K. Dhar commission in November, 1947 to study about the reorganization of states on linguistic basis. The commission submitted its report in 1948 (December) and recommended that the states may be reorganized on the administrative convenience rather that on linguistic basis.
Ø Another linguistic province committee was appointed in 1948 with J.L. Nehru, Vallabai Patel and Pattabi Sitaramayya as its members (JVP committee) This committee submitted its report in April 1949 and rejected the linguistic basis to organize states
Ø After a hunger strike of 56 days Potty Sriramulu died on the cause of creating a state of Teligu speaking people. Due to mass agitation government of India was forced to create the state of Andhra in 1953.
Ø State reorganization commission was appointed in December 1953 Under the chairmanship of Fazal Ali. The other members of the commission were H.N. Khunsri and K.M. Panikkar. The committee submitted their report in 1955 and recommended language as the basis for organization of states but not in the manner , one language-one state.
Ø State reorganization Act was passed in 1956 and as per the previsions of this act and 7th amendment of constitution in 1956, 14 states and six union territories came in to existence on Nov. 1, 1956 (See table below)
Ø As per the Stae reorganisation Act and 7th constitutional amendment 1956 part A and B states were done away and Part C states were abolished.
States & UTs in India in 1956
States (14) Andhra Pradesh, Assam, Bihar, Bombay, J & K, Kerala, Madhya Pradesh, Madras, Mysore, Orrisa, Punjab, Rajasthan, Utter Pradesh, Bengal
Union Territories (6) - Andaman & Nicobar Islands, Delhi, Himachal Pradesh, Lack dives, Minicoy & Aminidivi Islands, Manipur, Tripura
Union Territories in 2002 (7 nos) - Andaman & Nicobar Islands, Chandigarh, Dadra & Nagar Haveli, Daman & Dou, Delhi (NCT), Lakshadweep, Puduchery
State and UTs organized after 1956
Ø Maharashtra and Gujarat were organized as separate states in 1960 by dividing Bombay into two (Bombay reorganization Act 1960) Gujarat become the 15th State
Ø Dadra & Nagar Haveli was liberated from Portuguese administration in 1954. By 10th amendment act of 1961 this territory was incorporated to Indian Union as Union Territory.
Ø Through a police action Goa, Daman & Diu were acquired from Portuguese in 1960. 12th constitutional amendment 1962 made them union territories of India. Goa was conferred state hood in 1987 (Goa Daman & Diu reorganization act 1987)
Ø French ceded territory of Pondicheri (included Mahe, Yanam and Kanakkal also) to India in 1954. Up to 1962 the territory was administered as an acquired territories and it was made union territory by 14th constitution amendment.
Ø Nagaland was formed after taking Naga hills and Tvensang area from Assam in 1963. Nagaland was placed under the governor of Assam in 1961 and then it was given the statehood. Nagaland was created to satisfy the Nagas feeling to have their own state (State of Nagaland act 1962) – 16th state
Ø Punjab state was divided into two to from Haryana and the Union territory Chandigarh in 1966. Haryanan was the 17th state of India. But later Akalidal clamoured for a state to Punjabi speaking people. To satisfy this demand, on the recommendation of Shah commission 1966 Punjab was created for Punjabi speaking people.
Ø In 1971, the Union territory of Himachal Pradesh was raised to statehood (State of Himachal Pradesh Act 1970) – 18th State
Ø In 1972 the two union territories Manipur & Tripura got statehood Along with Meghalaya. Meghalaya was treated as an autonomous state or sub state within the state of Assam under 22nd constitutional amendment of 1969, Meghalaya had its own legislature and council of ministers during this time .Manipur was 19th state, Tripura 20th and Meghalaya was 21st state. In the same year, i.e. in 1972, North East frontier agency was bifurcated andTwo union territories were formed naming Mizoram and Arunachal Pradesh (The above changes were made under North East Area Reorganization act 1971)
Ø Case of sikkim is referse earlier .
Ø In 1987 three new states were formed (1) Mizoram (23rd) Arunachal Pradesh (24th) Goa (25th). Mizoram was given full statehood on signing Mizoram place accord in 1986 , between Mizo national front and Union government. Goa was separated from the UT of Goa, Daman & Diu
Ø State formation in 2000 – Chattisgarh (26th) by Madhya Pradesh reorganization act 2000. Uttaranchal (27th) By the Uttar Pradesh Reorganization Act 2000 & Jharkhand (28th) By the Bihar reorganization act 2000. Now 28 states and 7 Union Territories exist .
Change of the names of New states
United provinces was renamed as Uttar Pradesh in `1950. Madras was renamed as Tamilnadu in 1969. Mysore renamed as Karnataka in 1973. Lakhdives, Minicoy and Aminduevi Islands was renamed as Lakshadweep in 1973. Delhi was rename as National Capital Territory in 1990 (69th constitutional amendment act 1991) 2006 – Uttarakandh was renamed as Uttanchal and Pondicheri was renamed as Puducheri.
Citizenship
Ø Citizens of state compose the state and they enjoy all political and civil right of the state. In the case of Aliens they do not enjoy all of the civil and political rights enjoyed by citizens of a state .
Ø Two types of Aliens -= Friendly aliens (citizens from friendly countries) and enemy alien (citizens from enemy country)
Ø Enemy aliens have lesser rights in India than the friendly alien eg: They do not enjoy protection against arrest and detention (Art 22)
The rights offered to the citizens (Aliens do not have)
Ø Art – 15 - Rights against discrimination on grounds of caste, religion, sex etc
Ø Art – 16 – Equal opportunity in the matter of public employment
Ø Art – 19 – Right to freedom of speech and expression, Assembly, association, profession, movement, residence etc
Ø Art – 29 – 30 - Educational and cultural rights
Ø Eligibility for certain offices – President (Art 58(1) (a); Vice President (Art 66(3)(a), Judge SC (Art 124(3) Judge HC ( Art 217 (2) attorney general (76(2), Advocate General (Art 165) governor of a state (Art 157)
Ø Right of suffrage – to House of people and state assembly
Ø Right to become member of parliament (Art 84)
Ø Right to become member of legislature of a state (Art 191(d)
Ø The constitution describes the persons deemed to be citizens of India at the commencement of the constitution. Citizenship Act (57 of 1955) elaborately describes about the acquisition and termination of citizenship after the commencement of the constitution as the constitution do not explain about this much. Citizenship act had been amented in 1986, 1992, 2003 & 2005.
Indian citizens on January 26, 1950
(1) Art – 5 A person born as well as domiciled in India and he full fills three conditions – (1) born in India (2) either of his parents was born in India. (3) resided in India for five years immediately before the commencement of the constitution (Art – 5)
(2) Art – 6 A person migrated from Pakistan provided – (1) He or either of his parents or grand parents born in India. (2) Since the date of migration , if the migration was before July 19, 1948, he had resided in the territory of India.
(3) Those who migrated on or after July 19, 1948 should register an application before an officer for appointment by government of India for citizenship and he should reside in India at least six months before making such application (Art – 6)
(4) Art – 7 Those who migrated from India to Pakistan after March 1, 1947 and later returned to India to settle here should reside in India at least six months preceeding his application for citizenship
(5) Art – 8 A person who or any of his parents or grand parents who were born in undivided India but they ordinarily reside out side India shall become an Indian Citizen since he had again registered as an Indian citizen by the censular representative of India in the country of his residence (This provisions was made for Indians living in foreign countries)
(6) Art – 9 Those who voluntarily acquired the citizenship of any foreign state will not be citizen of India
(7) Art – 10 Citizenship of India shall continue on the basis of law made by the parliament. People can enjoy citizenship on the provisions of this law
(8) Art – 11 Parliament is empowered to make any provisions on the acquisition or termination of citizenship and all other matters related to citizenship
Acquisition of citizenship
Citizenship act 1955 put forth various modes of acquisition of citizenship. They are
1 By birth – Every person born in India on or after January 26, 1950 but before June 30, 1987 and those born on or after July 1,1987, if either of his parents was a citizen of India at the time of his birth. (citizenship act amended in 1986 to tackle the refuge influx from Bangladesh & Sri Lanka) Those born in India on or after 3rd December 2004 can only be citizen of India if both of their parents are citizen of India or one of the parents is a citizen of India and the other not an illegal migrant.
2 Citizen of foreign diplomats and enemy aliens cannot acquire citizenship by birth .
3 By Descent - (a) A person born outside India on or after 26 January, 1950 but before 10thDecember 1992 is considered as the citizen of India if his father is Indian citizen at the time of his birth. (b) Person born out side India on or after 10th December 1992, if either of his parents is a citizen of India at the time of his birth (c) From 3rd December 2004 onwards those who born outside India are not citizens of India. Unless their birth is registered in an Indian consulate within one year of his birth. The application for registration should be accompanied with an undertaking by the parents that the Minor child does not held the passport of another country.
4 By Registration - By registering infront of the prescribed authority if he full fills the following conditions
1 Person of Indian origin who is a resident in India for seven years before forwarding an application for registration
2 Person of Indian origin who resides out side undivided India
3 Person who married Indian citizen and resides in India for seven years before making application
4 Minor children of Indian citizen
5 An adult whose parents are Indian citizens
6 A person of full age whose either of the parents was a citizen of India and reside in India for one year before making application’
7 Person of full age and capacity who has been registered as an overseas citizen of India for five years and residing in India for one year before making an application
8 Person of Indian origin - If he or either of his parents born in undivided India or in its territory after 15th August 1947.
9 An oath is to be taken by those who register for citizenship in prescribed form.
4) By incorporation of territory:
When any territory become part of India the people of that territory is treated as the citizens of India by the parliament through its order – eg Citizenship ( Pondichery order) 1962 under citizenship Act 1955
5) By Natuaralisation :
A foreigner ( not an illegal migrant ) can acquire India citizenship by forwarding an application for naturalisation to the central government if he full fills the following conditions
a) He is not a subject or citizen by naturalisation of a country in which he is prevented from being so.
b) If application for Indian citizenship accepted he should renounce his citizenship of the country which he accepted.
c) Either resided in India or in government service or partly one and other for twelve months immediately before the date of application.
d) Eleven years aggregate stay in India or in government service or partly one and the other in 14 years immediately before the 12 months of continuous stay in India.
e) He is of good character.
f) Adequate knowledge in of a language in the 8thshedule.
g) He is intended to reside in India, on grating naturalisation, or enter into service under government or international organisation in which India is a member or under the organisations established by govt of India.
· exceptions on the above provisions can be made by the Govt. in the case of persons of excellence in the field of art, literature, peace, science etc.
Loss of citizenship:
Three ways of losing citizenship as per the citizenship act 1955.
1) By the way of renunciation :
Any citizen of India of full age and capacity can renounce his India citizenship by a declaration and its registration. During war central govt has the power to withheld the registration of such declaration. In the case of such renunciation.All of his minor children loses the citizenship of India and they may attain again the citizenship of India only often they are at 18.
2) By way of termination:
If an Indian citizen voluntarily acquires the citizenship of another country His Indian citizenship is automatically terminated. But this provision cannot be applied when India is engaged in a war.
3) By way of Deprivation:
This is the compulsory termination of Indian citizenship by the central govt of following condition:
a) citizenship obtained through fraud methods
b) when citizens show disloyalty to the constitution
c) unlawful engagements of the citizens, during the war, with enemy countries
d) after registration or naturalization, if the citizens had imprisoned in a foreign country, within five years for two years.
e) when citizens ordinarily reside out of India continuously for 7 years (not applicable to those who – are a student, employee of any Govt. of India’s organization, registering annually in Indian consulate to retain his Indian citizenship)
FUNDAMENTAL RIGHTS
Ø In part III of the constitution, Article 12 to 35 deals with Fundamental Rights. As it contains Fundamental Rights part III is honorably called “the magna carta of India.”
Ø Fundamental rights contained in Indian Constitution are more elaborate than the Fundamental rights contained in any other constitution in the world.
Ø Fundamental rights basically ensure political democracy and it envisages a government of laws rather than an autocratic one. The provisions of fundamental rights are meant also for the all-round development of individuals
Important Aspects of fundamental rights
1) All fundamental Rights are not available to all, some are available to citizens only and some are available to all individuals including legal entities like companies etc.
2) Fundamental Rights reasonably maintains a balance between the rights of society and the rights of individual. They are not absolute in the nature because sometimes state imposes some restrictions on them according to the situations.
3) Most of them are available against the arbitrary action of the state
4) They are justifiable. They are guaranteed by supreme court
5) Parliament can curtail and repeal them through amendments
6) Fundamental rights except art 20 &21 can be suspended during National emergency
7) Rights guaranteed by art 19 can only be suspended during National Emergency on the grounds of war or external aggression
8) Their application can be controlled by the parliament while martial law is in force and parliament can restrict the application of these rights on members of armed forces
Art 13, 32 & 226
Art 13 declares that any laws that are inconsistent with fundamental right are null and void. To scrutinize the legal validity of the laws in connection with Fundamental rights passed, art 32 empowers the Supreme Court to have judicial reviews. High courts are provided with the power of judicial review under art 226.
Important fundamental rights
Ø Originally, the Constitution provided for seven Fundamental Rights viz,
Ø Right to equality (Article 14-18)
Ø Right to freedom (Article 19-22)
Ø Right against exploitation (Articles 23-24)
Ø Right to freedom of religion (Articles 25-28)
Ø Cultural and educational rights (Articles 29-30)
Ø Right to property (Article 31)
Ø Right to constitutional remedies (Article 32)
Ø However, the right to property was deleted from the list of Fundamental Rights by the 44th Amendment Act, 1978.
Ø it is made a legal right under Article 300-A in Part XII of the Constitution.
Ø So at present, there are only six Fundamental Rights.
Right to Equality (Art. 14 to 18)
The right to equality includes the following.
Equality before law. Art 14 - The state shall not deny to any person the equality before the law or the equal protection of the laws within the territory of India.
Ø The idea of equality before law is received from British constitution while the concept of equal protection of law is adopted from American constitution.
Ø Art 14 denies class legislation by ensuring reasonable classification of people.
Ø Supreme Court has defined Art 14 forms one of the basic features of the constitution.
Exceptions to Art 14: president, governors, Members of parliament etc. enjoys some immunity to legal proceedings against them. The laws made to implement DPSPs stands against Art 14. Foreign sovereigns and UNO and it agencies enjoy diplomatic immunities against Art 14.
Ø Prohibition against discrimination. Art. 15 - The state shall not discriminate on the grounds of religion, race, caste, sex, and place of birth or any of them
Exceptions to Art 15: special provisions can be made for children and women, socially backward classes, scheduled tribes and scheduled castes. By 93rd amendment act parliament enacted central education institutions (reservation in admission) act 2006 to provide 27% reservation to OBC students to get ad mission in Central institutions like IITs, IIMs etc.
Equality of opportunity in matters of public employment Art 16: There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state (Art.16)
Exceptions to Art 16: parliament has the right to prescribe residence as the condition for some employment. Reservations in appointment can be made in case of backward classes. Appointments in religious institutions can be resaved for the persons from that particular religion.
Ø Mandal commission Report:
Ø Morarji Desai Government appointed B.P. Mandal commission as the 2nd backward class’s commission.
Ø The commission submitted its report in 1980 and it recommended 27% reservation for OBC and identified 3743 castes socially backward. in 1990 V.P.Singh government declared 27% reservation.
Ø The famous mandal case came in front of the Supreme Court in 1992 and the scope of Art 16 was thoroughly examined by the court during the trail and it upheld the constitutional validity of 27% reservation for OBCs
Abolition of untouchability: Untouchability is abolished and its practice in any form is forbidden. Untouchability is an offence punishable in accordance with law. (Art.17)
Abolition of titles: No title, not being military or academic, distinction shall be conferred by the state. No citizen of India shall accept any title from any foreign state. (Art.18)
Art 19 – Right to freedom
Ø Originally Art 19 ensured 7 fundamental Rights. But among these rights Right property was deleted by 44thamendment of 1978. Now it is only a legal right under Art 300 A
Ø Reasonable restrictions on fundamental freedom can be imposed by govt.
Six fundamental freedoms are.
(1) Freedom of speech and expression
It envisages that every citizen can express his views and opinions through speech, in writing, printing, picturing etc; it includes the freedom of press, telecasting, advertising, conducting demonstrations or picketing (no right to strike) and right against taping of telephonic conversations. Right against bandh, right to know about government activities etc
Ø State can impose reasonable restrictions on this right on the grounds of integrity and sovereignty of the country and on the grounds of public safety, morality decency of India the parliament passed unlawful activities (prevention) Act 1967 and based on this act Govt. has banned LTTE, National Socialist Council of Nagaland, National Council of Khalisthan etc.
Ø No specific provision in the constitution guarantees freedom of press. Freedom of press comes under the scope of Art 19 (1) (a). Freedom of press is to be protected by the courts.
Ø Censorship on press cannot be considered unconstitutional. As the inclusion of the words ‘Public order’ and ‘reasonable’ in clause 2 of Art 19 ( 1st amendment 1951) Censorship can be justified on the grounds of public order
Ø Art 19 provides protection from imposing presensorship on a News paper, but it can be imposed during emergency. Value of presensorship in the case of cinemas has upheld by Supreme Court.
Provisions related to the Freedom of press - Article 19(1) (a)
1. Press is subject to ordinary taxation
2. Press is subject to general laws on industrial relations
3. Subject to labor laws
4. By legislations the state should not abridge the freedom of expression of presses
5. Through legislation state should not restrict the circulation of press and thus fettering the dissemination of opinions and ideas.
6. State should not deliberately impose specific tax on press to limit the circulation
Ø To supplement the expiry of press (objectionable matter) Act, 1951, in 1956, Parliament passed prevention of publication of objectionable matter Act in 1976, but the Janata Government repeated this Act in 1977.
Civil Servants Freedom of Speech- As per the directions of Supreme Court freedom of speech can be curtailed for the public servants when it come for the effective performance of their duties because criticism on Government policies or superiors may affect the effective functioning of their duties.
Freedom of speech and expression – intervention by courts
Ø In 1997 Kerala High Court banned bandhs and this verdict was upheld by Supreme Court in 1997 itself. But right to peaceful protest is upheld by supreme court while it referred the protest of Baba Ramdhev in Ramlila Madian in 2011 against black money and corruption.
Ø The Arakshan case – Arakshan, the film criticizes reservation system in India in the admissions to educational institutions was banned by U.P, Andhra and Punjab. The director of the film approached Supreme Court and court directed to lift the ban on the film and opined that such issues should be discussed in a vibrant democracy.
Ø Da Vinci code case – When some people argued against the releasing of Da Vincy Code in India, on the ground that the film hurt Christian feelings. In this case Madras high court opined that when the people have their full right and freedom whether to accept or not what film says, there is no need of a ban on the film.
Ø Viswaroopan Case (2013) - As the film shows some Afghani Jihadis recite Quranic prayers before Jihadh, Some Muslim groups from Tamil Nadu protested against the release of the film on the grounds that it will harm law and order of the state. Supreme court held the view that it is the duty of state to maintain law and order and as the film had been given clean chit by CBFC, there is not hindrance in releasing the film in the state.
(2) Freedom of Assembly
Ø Citizens have the right to assemble peacefully and without arms. Citizens can conduct public meetings, demonstration and take out processions.
Ø On grounds of public order (including maintenance of traffic) and sovereignty and integrity of the country reasonable restrictions can be imposed on this freedom.
Ø Under section 144 of CrPC (1973) a magistrate can impose restrictions on assembly, demonstrations etc if there is a threat to public order or danger to human life, health etc
Ø Section 141 of IPC defines the assembly of five or more persons unlawful if such assembly is indented to (1) resist the execution of any legal process (2) occupy the property of some person (3) commit any criminal activities (4) force some one to commit criminal offences and (5) prevent state authorities from conducting legal activities.
(3) Freedom of movement
Ø This freedom ensures the free movement of every citizens throughout the territory of the country. This fact underscore the idea that India is one unit and thus the integrity of the country is ensured.
Ø Restrictions on this freedom are - (1) on the interest of general public (2) on protection of the interest of some scheduled tribes
Ø Freedom of movements of prostitutes can be curtailed on the issue of public health. The same is the case of AIDS patients; their movement can be restricted to prevent the spread of the fatal disease.
Ø Art 19 mainly deals with the freedom of movement within the country whereas the right to move outside the country and come back to the country is dealt by Art 21.
Ø Freedom of movement can be restricted on safety grounds of persons. eg.wearing Helmet.
Ø Externment orders can be issued to maintain public order.
4) Freedom of residence
· Every citizens of the country has right to reside and settle in any part of the country. This freedom ensures temporary or permanent stay of citizens in the territory of the country.
· This right can be restricted on the interest of some scheduled tribes to protect their distinguished culture, language etc
· On the interest of General Public, freedom of residence can be restricted. Supreme Court had upheld that prostitutes can be restricted to reside in some areas.
(5) Freedom of Association
· This freedom ensures the right of the people to form Unions, Associations, Co-operative Societies etc. political parties, trade unions, partnership firms, companies etc are formed on the basis of freedom of association.
· People have the right to not to join or form associations or unions
· To get recognition for associations it requires to fulfill certain obligations and standards put forwarded by law. So to get recognition for associations is not a fundamental right.
· Though citizens have the right to form associations, it does not ensure trade unions right to bargaining or right to strike or right to lock – out
(6) Freedom of profession
· All citizens have the right to do business, practice any profession or carry out any occupation
· Professions or business with immoral nature can’t be carried out under this right.
Ø Restrictions on freedom of profession
1 Certain qualifications can be prescribed for practicing some professions.
2 Complete monopolization of certain business can be done by the state.
3 Can restrict the trade of harmful substances like liquor, tobacco products, explosives etc
4 Practices not in the nature of business or trade etc can be banned. Eg: betting, gambling
5 Concessions on the price of certain food items can be imposed on the ground of food security
6 Restrictions can be imposed on meat trade to reduce animal slaughter
Art 20 – Protection in respect of conviction for offences
This right provides protection against conviction of offences, by preventing – (1) Ex post facto legislation (2) Double jeopardy (3) Providing evidence for self incrimination
(a) Ex post facto legislation – Art 20(1) of the constitution contains provisions against ex post facto legislation. It says “No person shall be convicted of any offence except for 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”
Ø The word ex post facto legislation literally means legislation with retrospective effect
Ø Legislatures can pass both prospective and retrospective legislations but retrospective legislation in the case of criminal laws is restricted by the above said clause [Art 20(1)]
Ø Ex post facto legislations in criminal law may lead to the following issues
a) Crimilise legal actions, when it committed
b) Less severe crimes when committed may be made more severe
c) Changes can be made in the nature of punishments
d) It may decriminalize certain crimes of earlier time
Ø Kerala High court (in 2011) and Delhi High court (in 2010) up help the view that sections of Protection of Women from Domestic Violence Act, 2005 can be used against the violence committed against women before the act came into force.
(b) Double Jeopardy – (Art 20(2) - The word double jeopardy literally means prosecutions and punishments to same offence more than one. Art 20(2) of the constitution says “No person shall be prosecuted and punished for the same offence more than once”
Ø Art 20(2) does not provide immunity from the proceedings other than from a court of law. So departmental actions against a Govt. servant is possible even if he is punished by a court of law.
(c) Immunity from self incrimination (Art 20(3)
Ø Art 20(3) says “ No person accused of any offense shall be compelled to be witness against himself” As per this, No person can be compelled to provide any kind of evidence (both oral or documentary) to support a prosecution process against him.
Ø Immunity from self incrimination does not bar seizure of some documents or objects from the possession of the accused or conducting medical examination on the accused or obtaining thumb impression or specimen signature etc from him
Ø Immunity from self incrimination does not extend to civil proceedings or proceedings not in the nature of criminal proceedings.
Ø In Smt. Selvi v/s state of Karnataka case the supreme court had upheld the view that Narco, polygraph and brain mapping techniques are unconstitutional on the grounds of the provisions of Art 20(3)
Art 21 – Protection of life and personal liberty
Ø Article 21 provides that “No person shall be deprived of his life or personal liberty except according to the procedure established by law. Both citizens and foreigners will get the protection of Art 21. This right says that state can’t interfere in the liberty of persons unless the states actions are supported by law.
Ø Article 21 ensures – (1) No person can be deprived of his liberty except according to law (2) safeguards against arbitrary arrest and detention.
Ø Gopalan v/s state of Madras case (1950) - in this case the majority of the judges of supreme court held the view that our constitution envisages English concept of personal liberty (in England parliament can restrict the personal liberty through legislation) as article 21 contains the wordings ‘procedure established by law” This supreme courts view of personal liberty can be restricted through legislation created wide discussions among legal experts and supreme court interfered in the matter later in Maneka v/s Union of India case.
Ø Maneka v/s Union of India case (1978) – In this case supreme court held more liberal views on personal liberty and over ruled the verdict of Gopalan case and ruled that the right to personal liberty can only be deprived by a law provided the procedures prescribed by the law is Just reasonable and fair. By making a ruling like this supreme court was adopting the American principle ‘Due process of law” (under the “due process” clause of American constitution the court has the power to declare the unconstitutionality of any law which deprive a person of his liberty)
Ø In the subsequent cases after Maneka case the supreme court has declared the following rights as part of Article 21
1 Right to live with human dignity
2 Right to livelihood
3 Right to privacy
4 Right to shelter
5 Right to health
6 Right to good environment with pollution free water and air
7 Right to free education up to 14 years of age
8 Right to free legal aid
9 Right to speedy trial
10 Right to travel abroad
11 Right against handcuffing, inhuman treatment, bonded labour custodial harassment, delayed execution, public hanging etc
12 Right to hearing
13 Right to information, reputation, fair trial, emergency medical aid etc
14 Right of women to be treated with decency and dignity
15 Right of prisoner to have necessities of life in prisons etc
The writ of Habeaus corpus under Art 32 and 226 can be sought to maintain the personal freedom as by means of this writ an arrested person will get the right to be produced in the court and thus grounds of his arrest can be got examined
Article 21 and important cases
1 Francis Coarolie v/s Delhi (1981) – court upheld the right to live with human dignity
2 Maneka Gandhi v/s Union of India (1978) – Right to live with dignity was upheld by the court
3 Pavement dwellers case 1986 – Right to livelihood with dignity was seriously considered by the court
4 Neeraja Chaudhary v/s Madhya Pradesh (1984) – Right against bonded labour and their rehabilitation were considered and upheld by the court.
5 Mohini Jain v/s Karnataka (1992) – Court upheld the right to education.
6 Orissa v/s Andhra (2009) – Right to water was upheld by the Court.
7 Baba Ramdev Case (2012) – Court upheld the view that right to sleep is part of right to life.
8 Aruna Shanbaug case (2011) – Court rejected the plea for active euthanasia mean while it permitted passive euthanasia in India.
Ø Active euthanasia – Killing a person by injecting poisonous substances
Ø Passive euthanasia – Allowing a person to die by withdrawing life supporting systems like treatment, food etc.
Ø Kharak Singh v/s Uttar Pradesh 1964 and Rajagopal v/s Tamil Nadu (1994) – Court upheld the right to privacy even though the constitution does not contain provisions on it
Ø Telephonic interception are legal only on the grounds of public interest, safety of the public, security of the state, friendly relations with other states etc. If they are in pure private nature tapping of them is un constitutional
Obligation of the state in the case of the possession of intercepted material
1 A legitimate disclosure of the intercepted materials can be done through RTI Act
2 It can be revealed through investigative process if the materials are part of such investigation and contain the matters of public interest
3 If the intercepted materials are purely in private nature and they have no connection with any affairs of the state, They should be kept secret
J.P. Shah Committee
This committee was appointed to study about the law related to privacy. Important recommendations of the committee are
1 Recommended a law to protect privacy and personal data
2 At central and state level privacy commissioners should be appointed
3 Commission listed national security, public interest and order, procedures related to criminal offences, right of freedom of others etc as the exceptions to the right to privacy
4 It has recommended nine privacy principles to frame the law related to privacy.
Ø Article 21 is considered the foundation stone of Part III
Art – 21A – Right to Education
Ø 86th constitution (Amendment) Act 2002 inserted Art 21 A, the right to education, in the constitution.
Ø As per this newly inserted Article the state is liable to provide free and compulsory education to all children of the age ranging between six to fourteen.
Ø Before the 86th amendment 2002, Indian constitution contained provisions for free and compulsory education under Art – 45, Part IV. But being a part of DPSPs, this can’t be claimed as a right by the citizens. By making free and compulsory education a fundamental right 86th Amendment became a milestone in achieving the countries aim, “Education for all”
Ø 86th Amendment had modified the matter of Art 42 as “The state shall endeavor to provide early child hood care and education for all children until they complete the age of six years
Ø This amendment added a new fundamental duty under Art 51A which says “It shall be the duty of every citizen of India to provide opportunities for education to this child or ward between the age of six to fourteen.
Ø Under the provision of Art 21 A, The parliament enacted Right of children to free and compulsory education (RTE) Act, 2009.
Ø Achary Ramamurthy Committee recommented to include Right to Education in part III.
Ø On the following two cases Supreme Court upheld the view that right to education is part of Article 21.
1. Mohm,Jan V/s state of Karnataka (1992)
2. Unnikrishnan V/s Andhrapradesh
Art 22 – Protection against arrest and detention
Ø Article 22 provides certain immunities in the case of arrest and detention. The provisions related to Art 22 can be classified as given below
(A) Provisions of Art 22 in connection with ordinary laws and arrest
(1) The arrested person has the right to be informed of the grounds of his arrest.
(2) The arrested person has the right to consult and defense this case with the help of an advocate
(3) Those who are arrested should be produced before a magistrate within 24 hours (journey time is not included in the 24 hour time stipulated)
(4) The period of detention cannot be extended beyond 24 hours unless the extension of detention is authorized by the magistrate.
Ø Aliens and those who are arrested under preventive detention cannot enjoy the above referred safe guard.
Ø The above said safe guards are not applicable to the following cases
(1) Arrest on the orders issued by a court (2) Arrest on evasion of income tax payments (3) civil arrest (4) deportation of aliens
B Protections to those who are arrested under preventive detention law
1 Those who are arrested under preventive detention laws can be kept in custody only for three months
2 It is necessary to obtain report from an advisory board (comprising high court judges) to extend the detention of arrested person beyond three months.
3 The person who detained might be informed of the grounds of such detention. However the reasons behind the detention are considered against public interest then they need not be disclosed.
4 The detained person should be provided with chances to make representations against detention.
Ø Parliament can make legislations on the maximum period of preventive detention
Different between preventive detention and punitive detention
Punitive detention - to award a punishment to a person who committed an illegal Act, after trial by a court of law
Preventive detention – preventive detention is done without conducting a trial, the very objective of preventive detention is to prevent some body from doing something against public order, public interest, security of the state, defense, foreign affairs of state etc.
Ø The constitution of US and UK does not envisage preventive detention during the time of peace.
Following are the laws contained the elements of preventive detention at various times
1 Bengal Regulation III of 1818 contained provisions for preventive detention.
2 Defense of India act 1939 contained provision for preventive detention
3 Anti social activities and communal madness existed in India during the attainment of freedom. These events prompted the framers of India constitution to confer the rights for making laws on preventive detention to states.
4 The preventive Detention Act passed in 1950 on a temporary basis. (The act expired in 1969)
5 In 1971 parliament passed Maintenance of Internal Security Act (MISA) to curb anarchical forces emerged during the time. The act was repealed in 1978.
6 To prevent smuggling and racketing in foreign exchange the parliament passed (COFEPOSA in 1974 (Conservation of Foreign Exchange and Prevention of Smuggling Act)
7 National Security Act 1980
8 Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (PBMSECA)
9 The increase of Terrorist Activities induced the Government to pass Terrorist and Disruptive Activities (prevention) Act in 1985. The act was repealed in 1995.
10 Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPSA)
11 Prevention of terrorism Act (POTA), 2002 was passed to curb terrorist activities as TADA was repealed in 1995. But POTA was repealed in 2004.
Division of legislative powers on preventive detention
1 Parliament is exclusively entitled to make legislations on preventive detention connected with defense, foreign affairs and security of India.
2 In the case of security of State, public order, maintenance of supplies and services essential to community etc state and parliament can concurrently make legislations on preventive detention.
Prohibition of traffic in human beings and forced labor – Art – 23
Ø Article 23 Prohibits – (1) Traffic in Human beings (2) beggar and other similar forms of forced labor like bonded labor
Ø Begar was the forced labor system, maintained by Zamindars in India, in which compulsory work was done by the labor without remuneration
Ø Forced labor literally means imposing some works on somebody against his will. Art 23 prevents all forms of such forced labor. But exception to this is that the state can impose compulsory services on public purpose. eg: compulsory social services, compulsory military service etc.
Ø In the light of preventing forced labor and improving working conditions and wages the following acts were passed
1 The minimum wages Act 1948
2 The contract labor Act 1970
3 The Bonded labor Act 1976
4 The equal remuneration Act 1976
The wording ‘Traffic in Human beings’ denotes
1 Immoral traffic including prostitution
2 Selling and buying of human beings
3 Slavery, devadasi system etc
Ø In the light of preventing traffic in human beings, parliament passed immoral traffic (prevention) Act (ITPA) in 1956.
Verdict of Supreme court on a petition filed by Bachpan Bachao Andholan on missing children
1 With the presumption of the missing children are kidnapped or trafficked the police should register all the cases.
2 All states should prepare standard models on operation procedures to nab the missed children
3 Special child welfare officers should be appointed in every police station
4 Records related to the missed child should be kept intact.
5 Para – legal workers assistance should be provided to the parents of missed children.
Art 24 – Prohibition of Employment of children in factories etc
Ø Art 24 says “ No child below the age of fourteen years should be employed to work in any factory mine or engaged in any other hazardous employment”
Ø The child labor (prohibition and regulation) Act 1986 was passed to control child labor in India.
Other Acts prevents child labor
(1) Factories Act 1948 (2) The mines Act 1952 (3) The plantation labor Act 1951 (4) Appendices Act 1961 ( 5) Bidi and cigar workers act 1961 etc
Other important milestones in preventing child labor
1 A milestone in this case was the establishment of child labor rehabilitation welfare fund, on the directions issued by Supreme Court in 1996. Every offending employee were punished to deposit Rs. 20,000/- per child labor employed by him in the fund.
2 The commission for Protection of Child Rights Act was passed in 2005. The act provided for setting up of state commissions and National commission for protection of child rights and children’s court.
3 Child labor in hotels, restaurant, Dhabas etc were banned in 2006
Latest initiatives to prevent child labor
1 Proposal to bring forth a complete ban on child labor in all occupations was approved by government in 2012.
2 The child labor (Prohibition and Regulation) Act is to be amended and renamed as child and Adolescent Labor (Prohibition) Act and Punishment under this act is to be made severe and cognizable.
3 The age limit is to be increased from 14 to 18 to bring the adolescents under the protection of the act
4 The fine under the act has been increased from Rs. 20,000/- to Rs. 50,000/-
5 Imprisonment under the act has been increased from 2 years to 3 years.
Art – 25 – Freedom of conscience and free profession, practice and propagation of religion
Ø Art 25 depicts that subject to public morality, order and health all person have the right to enjoy freedom of believes practice, profession and propagation of ones religion.
Ø The scope of Art 25 can be extended to the rituals practices by the individuals in connections with his religious beliefs
Other limitation of Art 25
1 It can be limited on the other provisions of Part III of the constitutions
2 Limitations can be brought forth in the matters related with socials reforms like a Hindu religious institution of public character can be thrown open to all casts and sections of Hindus eg: Temple entry
Ø As per the provisions of Art 25 the Hindus include Buddhist, Jains and Sikhs.
Ø Right to propagate religion does not cover the right to convert (Because it curtail the right to freedom of religion)
Courts interventions in the case of freedom of Religion
Ø In Vedanta groups Bauxite mining in Niamagiri hills in Orissa case, the apex court held the view that the grama sabha can decide over granting permission to the project on considering the religious rights of scheduled tribes and other forest dweller’s in connection with their worship related to Niamagiri Hills.
Ø Hariyana legislatures decision to ban people with more than two children from holding posts in Panjayaths was questioned on the grounds of Muslim personal law. The High court upheld the decision of legislative on the grounds of ‘health of women and social reform and the court opined that it never hurt the freedom of religion.
Ø Anandamarg case – In this case Supreme Court held the view that public performance of Tandava dance with lethal weapons and human skulls cannot be considered a religious practice and such performance can be banned on the grounds of public order and morality.
Ø The apex court upheld that cow slaughter on Bakrid is not an essential part of Islamic belief and it could be prohibited on the grounds of public order (Hanif Qureshi V/s State of Bihar, 1958)
Article 26 – Freedom to manage religious affairs
Ø This article provides the right to establish and maintain institutions for religious and charitable purposes, manage the matters in connection with the religion and own and administer movable and immovable properties acquired by the religious institutions in accordance with law.
Ø Rights offered by Article 26 are subject to public order, morality and health, but not subject to the fundamental rights.
Religious denominations – According to Supreme Court
1. It should be a group of individuals who follows a system of beliefs or doctrines for the purpose of their spiritual well being
2. A common organizations should be there
3. It should be named with a distinctive name
(*)While considering the matters related to religious denominations, the apex court made clear that on the guidelines issued by it (above cited guidelines) Aurobindo society cannot be considered religious denomination where as Ramakrishna Mission and Ananda marga can be Considered religious denominations.
Article 27 – Freedom not to pay taxes for religious promotion
Ø This article defines that no person shall be compelled to pay taxes for the promotion of any particular religion.
Ø The taxes collected may used for the promotion of all religions (As per secularism envisaged by the constitution)
Ø Certain fee can be levied to provide the pilgrims certain services or security measures because purpose of such fee is not to promote a particular religion but to maintain the affairs of them.
Article 28 – Freedom – not to attend religious instructions
Ø This Article forbids any religious instructions being imparted in educational institutions run on state funds.
Ø Imparting of religious instructions is not barred in educational institutions administered by the state but established under any endowment or trust.
Four types of educational institutions
1. Institutions controlled by the state but established under any endowment or trust religious instruction is permitted here
2. Institutions wholly run on the fund of state – complete prohibition of religious instruction.
3. State aided institutions – religious instruction on voluntry basis.
4. State recognized institutions – religious instruction on voluntary basis.
Article 29 – Protection of interest of minorities
Ø This article guarantees every section of the citizen of India having a distinct language, script or culture, the right to preserve those distinct language, script or culture.
Ø In different cases came in front of the apex court, the court has been given wide meaning to minorities to contain all the sections of citizens.
Ø No educational institution run on the state fund cannot deny any person admission to it on the grounds of religion race caste or sex.
Ø The protection of Article 29 is available to linguistic minorities also. These minorities possess the right to preserve their language and they can conduct agitations to preserve their language.
Ø Political promises to conserve the language of a section in society cannot be considered as a corrupt practice to gain votes (under Peoples Representation Act 1951)
Art 30 – right of minorities to establish and administer educational institutions
Ø Under this article, all Minorities whether,linguistic or religious shall have the right to establish and administer educational institutions of their choice. And this article provides the minorities the right to choose the medium of instruction , curricula subject to be taught etc. in their institutions.
Ø The regulatory measures can be adopted by the states on such institutions on the grounds of in the interest of social welfare, academic standards, public order, morality etc.
Ø Regulations on the grounds of the service matters of the teachers in such institutions cannot be considered as the violation of Article 30
Ø In the case of grant in aid provided by the state there should not be discrimination on the ground that such institutions are run by a religious minority.
Ø Article 30(1) A- Full compensation should be paid to a minority educational institution, if the state seeks to acquire their property.
Three types of minority educational institutions
1. Institutions recognized and aided by the state – state can use their regulatory power on such institutions in the matters of syllabus, academic standards, sanitations etc.
2. Institutions recognized by the states but not receiving states’ aid – state can use their regulatory power on academic standards, syllabus, sanitation etc.
3. Institutions not recognized or aided by the state-independent in the administration of the affairs of state but should by abide by the labor laws, contract laws, industrial laws etc.
Ø After the state re-organization in 1956, linguistic minorities emerged in the real sense. The following are the important measures to protect the right of linguistic minorities (Article 350A 350 B)
1. Facilities should be provided to instruct the primary class students of linguistic minorities in their mother tongue.
2. Special officer for linguistic minority is to be appointed by president to report on the safeguards provided to linguistic minorities by the constitution.
3. The reports of special officers should be laid before each houses of the parliament and also to be sent to the governors of the states concerned.
Safeguards under Article 345 & 357
Article 345 – State shall fix any one or more of the language prevalent in that state or Hindi for any or all official purpose of that state.
Article 357 – The president can direct the states to fix certain language for the official purpose of the state or any part of the state on the demand by a section of people who speak the language and if the president is satisfied of the genuinity of their demand.
Important judgments related to Article 30
Ø Minorities institution should make available at least 50% of annual admissions for other communities – St.Stephen College V/s Delhi University (1992)
Ø In the Tara Pai foundation case the following judgment was pronounced by the court
1. Both minority and majority have the right to establish an educational institution.
2. As states are linguistically re-organized the concept of minority can be considered with reference to state.
3. There should be differentiation between aided and unaided minority educational institutions.
Secularism as defined by Supreme Court
1. It does not mean that the state should be hostile to religion. It means the state should be neutral as between different religions.
2. “If a person is a devout Hindu or Muslim it cannot be contented that he ceases to be secular.
3. The word secular would not override the provisions of Article 25 to 30 and Article 351
4. If religion is used for political purpose, the neutrality of the state would be violated.
5. Secularism is to be regarded as the basic feature of the constitution
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Right to property – An Analysis
Ø Article 31 deals with the right to property
Ø Along with Article 31, Article 19(1)(f) also ensured the right to property. But both these articles were repealed by 44th amendment of 1978. The repulsion of these articles came into force on June 20, 1979.
Ø 44th amendment inserted a new article, Article 300 A in part XII and by which the right to property was made only a legal right, not a fundamental right.
Article 19(1) (f) defines that every citizen has the right to acquire, hold and dispose property.
Art 31 – guarantees that no person shall be deprived of his property except by the authority of law.
Article 300 A – No person shall be deprived of his property except by the authority of law. (Here the article does not mention the word ‘right’). So it very explicitly defines that people can own property and the right over their property is only a legal right.
Implications of the legal right on property
1. An ordinary law of parliament can abridge or modify this right.
2. It restricts executive interventions on private property
3. Legislature can act on private property
4. Aggrieved person can move to High Court for the redressed of his grievance.
5. Compensation on acquisition of property by the state is not a right guaranteed.
Ø Part III contains protections of property in these cases – Right to compensation when state acquires property of minority educational institution (Article 30) and land owned by a person who cultivate the in land himself and the land comes within statutory ceiling limit (Article 31 A)
Article 32 – Right to constitutional Remedies
Ø As Indian constitution guarantees some fundamental rights. It also provide the right to approach the apex court to enforce the fundamental rights. So this right to approach apex court to enforce fundamental rights is guaranteed by Article 32.
Ø At the time of framing the constitution, Dr. Ambedhkar had opened that article 32 is the very soul and heart of the constitution.
Ø Rights coming under Article 32 can only be suspended under the provisions of constitution. Examples are given below.
1. Under Article 359, right to move court to enforce fundamental right can be suspended during emergency except in the case of Article 21 & 20.
2. Under article 358, the provisions of Article 19 cannot restrict executive and legislative interventions.
Ø The rights under Article 32 cannot be deleted as it forms the basic feature of the constitution.
Article 32 contain the provisions :-
1. Supreme Court can issue writs like Habeas Corpus, Mandamus, Quo warranto, prohibition and certiorari for the enforcement of fundamental rights.
2. Right to move Supreme Court to enforce fundamental rights is guaranteed under this article.
3. Without being prejudice to the rights of Supreme Court, parliament can empower any court except High Court to issue directions, writs and orders of all kinds (High Court has the right to issue writs under Article 226)
4. Right to move Supreme Court to enforce fundamental right cannot be suspended except as otherwise provided for by the constitution.
(*) Article 32 is invoked when the fundamental rights are infringed and not to determine the constitutional validity of a law passed
Supreme Court – the guardian of fundamental rights
Ø As the protector and guardian of fundamental rights Supreme Court cannot deny relief under Article 32 on the grand;
1. that the aggrieved person may have his remedy from some other court
2.That an investigation or evidence collection has to be conducted before granting relief.
3. that the petitioner is not sought after the proper writ (in such case the Supreme Court is to issue the proper writ to him)
Articles 32 & Article 226
Ø Both High Court (under Article 226) and Supreme Court (under Article 32) can issue writs like Habeaus Corpus, Mandanus, Certiorari, prohibition and Quo warranto.
Ø Supreme court had once opined that when the aggrieved party can get relief from high court under Article 226, they could move first to high court to get their grievances redressed. This opinion clearly defines alternative relief resort to is no bar to relief under Article 32.
The difference of writ Jurisdiction of Supreme Court from High court
1. Supreme court can issue writs to enforce fundamental rights only where as High Court can issue this not only to enforce fundamental rights but also for other purposes.
2. Writ Jurisdiction of Supreme Court cover the entire country whereas high court can issue writs over the territories which come under its Jurisdiction.
3. Supreme Court is constitutionally liable to issue writs under Article 32 as the same being a fundamental right. A remedy sought under Article 226 from HC is discretionary in nature and hence High Court can refuse to issue writs.
The Writs
Ø We adopted the writs from English law.
Ø In England issuing writs were the prerogative of the king so the writs were called prerogative writs.
1. Habeaus Corpus
Ø This Latin form means “to have the body”
Ø Habeaus corpus can be issued against both public and private authorities or individuals.
Ø The writ directs a person or authority to produce the person held under detention illegally.
Ø It cannot be issued against – if the detention is law full, if the detention is for contempt of court or legislature and if the detention is not coming under the jurisdiction of the court.
Bail, Parole and Hebeaus Corpus
Bail – Release from jail on conditions when the case is pending
Parole – Conditional release of a person imprisoned for a certain period.
Habeas Corpus – issued to release the person permanently from illegal confinement.
2. Mandamus
Ø The word mandamus means “we command”
Ø This writ is issued to a person or authority to command them to perform some public or quasi-public legal duty which he has refused to perform.
Ø High Court may refuse to grant mandamus if there is an alternative remedy to redress the grievance.
Ø If the matter is related to the violation of fundamental rights then the courts are to issue this writ.
Ø It can be issued against the government also (Article 226, 361)
Ø This writ can be issued against inferior courts or other judicial bodies.
The other purposes, than the case of fundamental right for which mandamus is issued are,
1. To a public officer to enforce the performance of his statutory duty.
2. To direct a court or judicial authority to exercise its jurisdiction.
3. To direct a public authority or the government not to enforce an unconstitutional law.
Grounds on which mandamus cannot be issued
1. Against president or governors in connection with the performance of their duties and power (Article 361)
2. Against a private individual or body if they are not in collaboration with state.
Continuing mandamus: - This is issued in general public interest to direct as authority or officer to perform their task in a well manner to prevent the miscarriage of the justice until the completion of their duty. This writ is mainly used in policing and investigative processes to prevent the interventions by the outside vested interested lobbies. Eg: the apex court issued continuing mandamus on CBI and Enforcement Directorate in 2G spectrum case.
3. Quo Warranto
Ø The word Quo warrants literally means “by what Authority”
Ø This writ is issued to enquire into the legality of the claim which a person asserts to a public office. So this writ ensures the occupation of a public office by the legal claimants. The conditions to issue Quo warrants are;
1. The office must be public created under the authority of a statute.
2. It must be a substantive office
3. It cannot be issued against private offices or ministerial offices
4There should be a contravention of statute in appointing such
Persons to that office
(4) Prohibition
Ø When an inferior court or tribunal usurps or exceed its Jurisdiction, Higher courts issue this writ to prevent the lower court or tribunal from doing so.
Ø This writ can only be issued against an authority which has a judicial or quasi judicial function.
5. Certiorari
Ø Literally the form Certiorari means “to be informed of”
Ø On the grounds of excess of jurisdiction or lack of jurisdiction or error of law Certiorari is issued-
1. By the higher courts to transfer pending cases with lower courts or tribunals to other ones.
2. To quash the orders issued by lower courts or tribunals.
Some criticism of Fundamental Rights
1. Fundamental rights can be curtailed by parliament. Egg: Right to property was lifted
2. They can be suspended during emergency(except Article 21 & 20)
3. There are many exceptions, explanations and restrictions on fundamental rights
4. They contain mainly political rights; economic rights like right to work of social rights like right to social security are not incorporated in fundamental rights.
5. Some argue that the spirit of fundamental rights are dampened by the provisions for preventive detention (Article 22)
6. Lack of clarity in many of its provisions.
7. It is expensive for the aggrieved to get his/her grievance redressed through High Court of Supreme Court
Some Constitutional Rights
Article 256(Part XII) – There should be an authority of law to levy taxes
Article 300 A (Part XII) – No person shall be deprived of his property without the support of law.
Article 301(Part XIII) – Trade, commerce etc. can be conducted freely throughout the territory of India.
Article 326(Part XV) – Adult suffrage
Other fundamental rights in Part III
Article 12- Definition of state
Article 13 – Laws inconsistent with fundamental rights
Article 33 – Parliament’s right to modify fundamental rights regarding their application related to armed forces
Article 34 – Restriction on fundamental rights while martial law in force
Article 35 – Legislation to give effect to the provisions of part III
FUNDAMENTAL RIGHTS AVAILBLE TO INDIANS AND FORIGNERS
Art. 14 : Equality before law and equal protection of law.
Art 20 : Protection in respect of conviction for offences.
Art 21 : Protection of life and personal liberty.
Art 23 : Prohibition of traffic in human beings and forced labour.
Art 24 : prohibition of employment of children in factories.etc
Art 25 : Freedom of religion
Art 26 ; freedom to manage religious affairs
Art 27 : Freedom as to payment of taxes for promotion of any particular religion.
Art 28 : Freedom from attending religious instructions in certain educational institutions
FUNDAMENTAL RIGHTS AVAILABLE ONLY TO INDIANS
Art 15 : prohibition of discrimination
Art 16 : equality of opportunity
Art 19 : six Fundamental freedoms
Art 29 : Protection of Languages , script, culture etc. of minorities
Art 30 : Right of minorities to establish educational institutions
