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CONSTITUTION LAW
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Contents
Topics Done by
1. Introduction and Salient
features
Gheethu Maria Joy (21)
2. Fundamental Rights – an
overview
Muhammed Niyas R (31)
3. Right to Equality Sana Abdul Azeez(43) Meera Merin George (28)
4. Right to Property Neethu Lakshmi.M (36)
5. Right to freedom Gayathri G S(20)
Keerthana Rajeev(24)
6. Right to freedom of religion Preetha G (40)
7. Right againt exploitation Surej Babu Andy (58)
8. Cultural and educational
rights
Dony Marian Mendez (16)
9. Right to constitutional remedies
Neethu Lakshmi.M , Ginto Saju (22)
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Introduction
The Constitution is the ―Supreme law of the land.‖
All other laws have to conform to the Constitution.
The constitution contains laws concerning the government and its relations with the people.
The Constitution was adopted by the Constituent Assembly on 26 November 1949, and came
into effect on 26 January 1950.
It lays down the framework in :
Defining fundamental political principles,
Establishes the structure, procedures, powers, duties of government institutions,
Sets out fundamental rights, directive principles, and the duties of citizens.
The Constitution of every country has certain special features because the historical background ,
social, economic and political conditions influence the making of the constitution. All these
factors have contributed in the making of the Constitution of India
Salient Features Of Indian Constitution
The Constitution of India has some outstanding features which distinguishes it from other
constitutions.
A WRITTEN CONSTITUTION
The Constitution of India is a written constitution. There are two types of constitutions in the
world.
The first modern written constitution was the American constitution.
The British constitution is unwritten, consists of customs and conventions which have grown
over the years.
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The framers of our constitution tried to put everything in black and white.
FEDERAL and Unitary Constitution
On the basis of division of power B\w the center and state the constitution is classified into :
Federal Constitution
Unitary Constitution
Federal Constitution :
The state has its own power whereas the center only shares the important powers .
Ex: the US constitution
‗Federal‘ => They have their own structure of the state and most of the powers are exercised by
their own legislatures and center intervenes only when it comes to national security and other
relations
Otherwise all the decisions are taken by the state
Unitary Form of Constitution
Most of the power is vested in the union.
State are the immediate delegates of the union
Ex: British Constitution
Our constitution?
A kind of mix
Has both the features of federal and unitary
=> ‗Quasi – Federal Constitution‘
LONGEST CONSTITUTION
The Constitution of India is the longest in the world.
Today it has: 444 Articles,divided into 22 parts,12 Schedules
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The constitution became lengthy mainly due to the following factors:
1. The constitutional fathers wanted to put everything in great detail.
2. In other federations, there are two constitutions: One for the federation and the other for
the states. In India, the states do not have separate constitutions.The powers of states
along with the powers of the federation have been stated in one constitution.
3. The Government of India Act, 1935 was in operation when India got independence. Our
leaders were familiar with this Act.They borrowed heavily from this lengthy Act while
framing our constitution.
4. India is a country of great diversity.
It is a country of several minoritiesIt has many languages, castes, races and religions. The
problems and interests of these different groups have found place in the constitution.
5. Good features of other constitutions have been included, with necessary modifications, in
our constitution. For example we have brought :
The 'bill of rights' from the American constitution
Parliamentary system of government from the British constitution.
Directive Principles of State Policy from the Irish constitution.
While including these elements of other constitutions in our constitution Ambedkar said
the framers of our constitution tried to remove their faults and suit them to our conditions.
6. Many members of the Constituent Assembly were "lawyer-politicians". They have made
the constitution not only long, but also extremely complicated.
A RIGID YET FLEXIBLE CONSTITUTION
Whether a constitution is rigid or flexible depends on the nature of amendments.
Ex of Rigid constitution ?
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US Constitution
It is very difficult to amend any part , article of the US constitution
Our Constitution : ―Flexible‖
Provision of article 368 under which we can amend our constitution as and when required
Some provisions of our Constitution can be amended by the Parliament with simple majority.
The amendment of most other provisions of the constitution requires a special majority in both
houses of the parliament.
There are some other provisions of constitution which cannot be amended by the parliament
alone.
These different amendment procedures make our constitution partly flexible and rigid.
In fact, there is a balance between rigidity and flexibility in our constitution.
Some amount of flexibility was introduced into our constitution in order to encourage its growth.
Nehru feared that if a constitution is too rigid, it will be stagnant.
ORGANS OF A STATE
There are 3 organs for a state:
Legislature
Executive
Judiciary
Legislature : Law making Body
Ex: Parliament , State legislature
Executive : Law enforcement or implementation
Ex: the government
Head of union executive ? The president
Judiciary:
Main function
1. Educate the laws made by the legislature,
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2. To interpret the laws
3. Declare any such law null or void if it violates the provisions of the constitution
4. To render justice in the country
Supreme court
Custodian of the constitution
Guardian of the constitution
It can term any law as null or void if it is violating any provision of the constitution
Even high courts can do but supreme court is the custodian of the constitution
FUNDAMENTAL RIGHTS
The Constitution of India guarantees six fundamental rights (listed in part III) to every citizen.
1. Right to Equality.
2. Right to Freedom.
3. Right against Exploitation.
4. Right to Freedom of Religion.
5. Cultural and Educational Rights.
6. Right to Constitutional Remedies
RIGHT TO PROPERTY , AN ORDINARY RIGHT
Till 1979 Right to Property was included in the list of Fundamental Rights.
But through 42nd amendment has been made an ordinary right and for this purpose
Articls-300 A has been included into the constitution.
Originally there were seven fundamental rights.
One of them was taken away from Part III of the constitution by the Forty-fourth
Amendment Act, 1978.
As a result, the Right to Property is no longer a fundamental right.
Since 1978, it has become a legal right.
The idea of fundamental rights has been borrowed from the American Constitution
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Any citizen of India can seek the help of High Court or Supreme Court of India if any
of his fundamental rights is undermined by the government or any institution or any
other government.
The fundamental rights, granted to the citizen, cannot be amended in the normal
manner.
They can be amended with two-third majority in each house of the Parliament.
DIRECTIVE PRINCIPLES OF STATE POLICY
The Constitution enumerates several Directive Principles of State Policy (listed in part IV) which
are intended to be implemented by the Centre and State Governments in due course.
They are aimed at :
The promotion of the material and moral well-being of the people and to transform India into a
Welfare State.
The Directive Principles are not enforceable in a Court of Law, but they are nevertheless
fundamental in the governance of the country.
In general, the Directive Principles aim at building a Welfare State.
These principles provide the criteria with which we can judge the performance of the
government.
Some of the Directive Principles are:
There should not be concentration of wealth and means of production to the detriment
of common man.
There should be equal pay for equal work for both men and women.
Workers should be paid adequate wage.
Weaker sections of the people, Scheduled Caste and Scheduled Tribe people should
be given special care
The state should promote respect for international law and international peace.
FUNDAMENTAL DUTIES
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Another salient feature of the Indian Constitution is the incorporation of the Fundamental duties
of citizens.
The 42nd
amendment of 1976 added Article 51-A to the Constitution requiring all citizens
to fulfill 10 duties
Failure to perform these duties does not carry any penalty, yet the citizens are expected to
follow them.
These are:
To abide by the Constitution and respect its ideals and institutions, the National Flag and
the National Anthem.
To cherish and follow the noble ideals which inspired our national struggle for freedom.
Uphold and protect the sovereignty, unity and integrity of India.
Defend the country and render national service when called upon to do so.
to promote harmony and the spirit of common brotherhood amongst all the people of
India transcending religious, linguistic and regional or sectional diversities; to renounce
practices derogatory to the dignity of women.
to value and preserve the rich heritage of our composite culture.
to protect and improve the natural environment including forests, lakes, rivers and wild
life, and to have compassion for living creatures.
to develop the scientific temper, humanism and the spirit of inquiry and reform
to safeguard public property and to abjure violence
to strive towards excellence in all spheres of individual and collective activity so that the
nation constantly rises to higher levels of endeavor and achievement
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC
The Constitution declares India as a Sovereign, Socialist, Secular, Democratic, Republic.
Sovereign :
It means absolutely independent;
It is not under the control of any other state.
Before 1947, India was not sovereign as it was under the British rule.
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Now it can frame its policy without any outside interference.
Socialist :
It implies a system which will endeavor to avoid concentration of wealth in a few hands and will
assure its equitable distribution.
It also implies that India is against exploitation in all forms and believes in economic justice to
all its citizens.
Secular :
India is a country of several religions
Each individual has fundamental profess any religion he likes
The state neither force its citizen to accept any specific religion nor discriminate on the basis of
religion
Democratic :
Means, the power of the government is vested in the hands of the people.
People exercise this power through their elected representatives who, in turn, are responsible to
them.
All the citizens enjoy equal political rights.
Republic :
Means, the head of the State is not a hereditary monarch but a President who is indirectly elected
by the people for a definite period.
PARLIAMENTARY DEMOCRACY
In India, there is a parliamentary form of government.
The majority party in the Lok Sabha forms government.
The government is run by the Prime Minister and other members of the Council of Ministers.
FEDERAL GOVERNMENT WITH UNITARY BIAS
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India is a federation, although the word 'federation' does not find a place in the whole text, the
elements of federation are present in the Indian Constitution.
There is constitutional division of powers between the centre and the states.
The Planning Commission has emerged as a 'super cabinet' or a 'super state'.
The Governor acts as the agent of the center.
The center can reorganize a state, but a state cannot reorganize the center.
In other words, the center is indestructible while the states are destructible.
During emergencies, the powers of the center considerably grow and the states become weak.
India has also been characterized as 'a federal state with unitary spirit.'
BI-CAMERAL LEGISLATURE
According to Article 168 for every state there shall be legislature which shall consist of
Governor and legislative Council and legislative assembly
SINGLE-INTEGRATED JUDICIAL SYSTEM
The entire judicial system of India is organized into an hierarchical order.
Supreme Court is at the top of judicial administration below that there are high courts at the state
level and there are district courts at the district level.
All the courts of India are bound to accept the decisions of the supreme court.
INDEPENDENT JUDICIARY
The constitution of India makes provisions for the independence of judiciary because
only independent judiciary can
safeguard the rights and liberties of the people
can protect the supremacy of the constitution
An impartial method has been adopted for the appointment of the judges
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High qualifications have been fixed for the judges
The judges of the Supreme Court stay in office till 65 years of age and of High courts till 62
years of age
Difficult method has been adopted for the removal of the judges as they can be removed only
through impeachment by the union parliament
There is prohibition of practice after the retirement of the judges
JUDICIAL REVIEW :
This means that the Supreme Court of India is empowered to declare a law passed by the Indian
Parliament as null and void if it is inconsistent with the Fundamental Rights
The Constitution has made the judiciary independent of the executive.
The President of India appoints the judges of the Supreme Court and High Courts after
consulting the Chief Justice of India.
The judges are free from the executive control.
Their tenure is guaranteed and their salaries are fixed by the Constitution.
UNIVERSAL ADULT FRANCHISE
Article 326 of the Constitution of India provides universal adult suffrage.
The voting age has now come down from 21 to 18.
Anybody who has completed 18 years of age, irrespective of his caste, creed, sex or religion, is
eligible to vote in general elections.
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This is one of the most revolutionary aspects of Indian democracy.
LANGUAGE POLICY
India is a country where different languages are spoken in various parts.
Hindi and English have been made official languages of the central government.
A state can adopt the language spoken by its people in that state also as its official language.
Although India is a multi-lingual state, the constitution provides that Hindi in Devnagri script
will be the national language.
It shall be the duty of the union to promote and spread Hindi language.
At present, we have 22 languages which have been recognized by the Indian Constitution.
JOINT ELECTORAL SYSTEM
• The principle of Joint Electoral System was adopted after independence.
• Under Article- 325 of the constitution it is said that for every constituency there will be
one general electoral roll which will be one general electoral roll which will include the
names of all the voters belonging to different classes , religions, sex and races etc., and
they will elect a common representative.
SPECIAL PROVISIONS
• Special provisions for the protection of the interests of schedueled castes, scheduled
tribes, backward classes and minorities.
• Everybody is given the Right to Equality
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• Untouchability has been prohibited
• Under Article 29 and 30 special provisions for the made for the interests and protection
of minorities.
NATIONAL COMISSION FOR SCHEDULED CASTES
The 68th
Constitutional amendment made in 1990, it was provided for the appointment of the
National Commission for the scheduled castes for the protection of their interests.
In 2002, the government constituted two separate commissions for scheduled castes and
scheduled tribes
CONSTITUTIONAL RECOGNITION TO LOCAL SELF-GOVERNMENT INSTITUTIONS
Under 73rd
and 74th
constitutional amendments passed in April ,1993.
Constitutional recognition was granted to the panchayati Raj Institutions in the villages and the
urban local bodies in the cities and for this purpose part 9 and part 9A and 11th
and 12th
schedules
were added to the constitution.
SINGLE CITIZENSHIP
There is provision of single citizenship in India.
A person may be living in any state, but he is the citizen of India alone.
The principle of double citizenship promotes regionalism and provincialism whereas the
principle of single citizenship promotes national unity, therefore the principle of single
citizenship is adopted in India.
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RULE OF LAW
The Rule of Law means that the law is supreme over person and everybody is equally
responsible before law howsoever he/she may be.
Also the man is punished on the violation of law and no arbitrary punishment can be given to
him
Fundamental rights
Significance/ Characteristic
Fundamental Rights for Indians are aimed at overturning the inequities of past social practices.
Guarantee that all Indian citizens can and will lead their life's in peace as long as they live in
Indian democracy.
Essential for development.
Democracy gave rise to various freedoms in the form of Fundamental Rights.
Helps prevention of gross violation of Human Rights.
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Difference between Human Rights and Fundamental Rights?
Fundamental rights are similar to human rights but are different in the sense that they have legal
sanction and are enforceable in a court of law whereas human rights do not have such sanctity
and are not enforceable in courts.
Then there is difference of universal appeal because fundamental rights are country specific that
have been made keeping in mind the history and culture of a country Whereas human rights are
designed in such a way that they are of even more basic nature and apply to all human beings
across the world without any discrimination.
Example :The right to a dignified human life is one such human right which cannot be
questioned whether you are in US or in a poor African country.
RIGHT TO EQUALITY
The fundamental rights are guaranteed to protect the basic human rights of all citizens of India
and are put into effect by the courts, subject to some limitations. One of such fundamental rights
is the Right to Equality. Right to Equality refers to the equality in the eyes of law, discarding any
unfairness on grounds of caste, race, religion, place of birth sex. It also includes equality of
prospects in matters of employment, abolition of untouchability and abolition of titles. Articles
14, 15, 16, 17 and 18 of the Constitution of India highlight the Right to Equality in detail. This
fundamental right is the major foundation of all other rights and privileges granted to Indian
citizens. It is one of the chief guarantees of the Constitution of India. Thus, it is imperative that
every citizen of India has easy access to the courts to exercise his/her Right to Equality. Various
articles under the Right to Equality are
Equality Before Law (article 14)
Social Equality and Equal Access to Public Areas (Article 15)
Equality in Matters of Public Employment (Article 16)
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Abolition of Untouchability (Article 17)
Abolition of Titles (Article 18)
ABOLITION OF UNTOUCHABILITY
Article 17 abolishes "untouchability", and its practice in any form is made an offence punishable
under the law. No article in the Constitution was adopted with such unanimity and so great an
acclamation and enthusiasm as this article.
It was the only one which had the special distinction of having been adopted with cries of
"Mahatma Gandhi Ki Jai". Some critics of the Constitution ask the question: "What is the right
that is created by this article?" It is true that is does not create any special privileges for anyone.
Yet, it is a great fundamental right, a charter of deliverance to one-sixth of the Indian population
from perpetual subjugation and despair, from perpetual humiliation and disgrace. The abolition
of untouchability becomes a right in that sense. The custom of untouchability had not only
thrown millions of the Indian population into abysmal gloom and despair, shame and disgrace,
but it had also eaten into the very vitals of the nation. There could be no better sign of the
determination to eradicate the evil than incorporating this Article into the chapter on
Fundamental Rights in the Constitution.
Again, it may not be inappropriate to recall here that it was an irony of fate that a man who was
driven from one school to another, who was forced to take his lessons outside the classroom and
who was thrown out of the hotels in the dead of night, all because he was an untouchable, was
entrusted with the task of framing the Constitution which embodies this Article and which dealt
the death-blow to this pernicious social custom. That person was no other than Dr. B.R.
Ambedkar, the Chairman of the Drafting Committee of the Constitution.
With the epic fast of Mahatma Gandhi in 1932 in protest against the "communal award" by
which the Scheduled Castes were to be given a separate electorate, a vigorous movement against
untouchability was launched on a national basis. Solemn pledges were taken by many members
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of the Indian National Congress and others that untouchability would no longer find any asylum
in the country.
The movement brought forth some good results. Many temples were thrown open, and the
rigours of untouchability had become a thing of the past at least in the urban centers of the
country. But the evil of untouchability still lingered in many forms and in many parts of the
country.
The Untouchability Offences Act came into force in June 1955. In one sense it may be said to be
an expansion of Article 15 of the Constitution. The Act intended to make the enforcement of any
disability against the Scheduled Castes illegal.
It provided that when the victim is a member of a Scheduled Caste, the commission of the
forbidden act should be presumed to have been done on the ground of untouchability. It has lain
down that whatever is open to the general public or to Hindus generally should be equally open
to members of the Scheduled Castes also.
Thus, for example, no shop may refuse to sell and no person may refuse to render any service to
any person on the ground of untouchability. Every person is entitled to such services on the
terms on which they may be obtained in the ordinary course of business by any other person.
Any refusal on that ground entails cancellation of any license required in respect of such
profession. Any act which interferes in any manner with the exercise of such rights by any
person was made an offence punishable with imprisonment for six months or a fine up to Rs. 500
or both. A subsequent offence is punishable with both imprisonment and fine. All offences under
the Act are cognizable and may be compounded with leave of the Court.
The Untouchability Offences Act was amended in 1976 making its penal clauses more stringent.
The Act has been also renamed as the Protection of Civil Rights Act. One significant new
provision of the Act is that a person convicted of an untouchability offence will be disqualified
for contesting the elections. It was for the first time that such a provision became a law in the
history of elections in India.
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In spite of the constitutional provisions, the operation of the Untouchability Offences Act and
judicial pronouncements, India cannot yet claim to have rooted out the evil of untouchability
completely. In the fight against social evils, legislation is only one of many weapons..
The battle against every form of untouchability and social discrimination has to be carried to the
hearts and minds of prejudiced people through mass contact, the mustering of public opinion and
social action. Simultaneously, there must be a vigilant watch over offenders with a view to
punishing every aggressive manifestation of caste discrimination.
ABOLITION OF TITLES
In the creation of a society which seeks to establish political, social and economic equality and
thereby aspires to become truly democratic, there is no room for some individuals to hold titles
thus creating artificial distinctions among members of the same society.
Recognition of titles and the consequent creation of a hierarchy of aristocracy had been
denounced as an anti-democratic practice as early as the eighteenth century.A democracy should
not create titles and titular glories.
In India, the practice of the British Government conferring a number of titles every year mostly
on their political supporters and Government officers, had already created a peculiar class of
nobility among the people. It was difficult, on principle, for independent India to recognize and
accept these titles apart from considerations of the merit of those who held them.
Article 18, therefore, abolishes all titles and the State is prohibited from conferring titles on any
person. The only exception made to the strict rule of non-recognition of titles is that provided in
favour of academic or military distinctions.
Titles like Rai Bahadurs and Khan Bahadurs given by the British government have also been
abolished. The awards of ‗Bharat Ratna‘ and ‗Padma Vibhushan‘ cannot be used by the
beneficiary as a title and is not prohibited by the Constitution of India. From 15 December 1995,
the Supreme Court has sustained the validity of such awards.
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Ambedkar explained in the Constituent Assembly that Article 18 did not create a justiciable
right:
"The non-acceptance of titles is a condition of continued citizenship, it is not a right, it is a duty
imposed upon the individual that if he continues to be the citizen of this country, then he must
abide by certain conditions.
One of the conditions is that he must not accept a title, if he did, it would be open for Parliament
to decide by law what should be done to persons who violate the provisions of this article. One
of the penalties may be that he may lose the right of citizenship."
Thus, under Article 18 not only is the State in India prevented from conferring titles on any
person, but Indian citizens are forbidden to accept any title from a foreign State without the
consent of the President of India.
The prohibition applies not only to the acceptance of titles but also to that of any present,
emolument or office of any kind from any foreign State by any person holding an office of profit
or trust under the State.
The fundamental rights are guaranteed to protect the basic human rights of all citizens of India and
are put into effect by the courts, subject to some limitations. One of such fundamental rights is
the Right to Equality. Right to Equality refers to the equality in the eyes of law, discarding any
unfairness on grounds of caste, race, religion, place of birth sex. It also includes equality of
prospects in matters of employment, abolition of untouchability and abolition of titles. Articles
14, 15, 16, 17 and 18 of the Constitution of India highlight the Right to Equality in detail. This
fundamental right is the major foundation of all other rights and privileges granted to Indian
citizens. It is one of the chief guarantees of the Constitution of India. Thus, it is imperative that
every citizen of India has easy access to the courts to exercise his/her Right to Equality.
Various articles under the Right to Equality are explained as follows:
Equality Before Law:
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Equality before law is well defined under the Article 14 of the Constitution which ensures that
every citizen shall be likewise protected by the laws of the country. It means that the State will
not distinguish any of the Indian citizens on the basis of their gender, caste, creed, religion or
even the place of birth. The state cannot refuse equality before the law and equal defense of the
law to any person within the territory of India. In other words, this means that no person or
groups of people can demand for any special privileges. This right not only applies to the citizens
of India but also to all the people within the territory of India. The article 14 says ― the State shall
not deny to any person equality before the law or the equal protection of the laws within the
territory of India”.
Social Equality and Equal Access to Public Areas:The right of Social Equality and Equal Access
to Public Areas is clearly mentioned under the Article 15 of the Constitution of India stating that
no person shall be shown favoritism on the basis of color, caste, creed language, etc. Every
person shall have equal admittance to public places like public wells, bathing ghats, museums,
temples etc. However, the State has the right to make any special arrangement for women and
children or for the development of any socially or educationally backward class or scheduled
castes or scheduled tribes. This article applies only to citizens of India.
Equality in Matters of Public Employment :
Article 16 of the Constitution of India clearly mentions that the State shall treat everyone
equally in the matters of employment. No citizen shall be discriminated on the basis of race,
caste, religion, creed, descent or place of birth in respect of any employment or office under the
State. Every citizen of India can apply for government jobs. However, there are some exceptions
to this right. The Parliament may pass a law mentioning that specific jobs can only be filled by
candidates who are residing in a particular area. This requirement is mainly for those posts that
necessitate the knowledge of the locality and language of the area.
Apart from this, the State may also set aside some posts for members of backward classes,
scheduled castes or scheduled tribes which are not properly represented in the services under the
State to uplift the weaker sections of the society. Also, a law may be passed which may entail
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that the holder of an office of any religious institution shall also be a person professing that
specific religion. Though, this right shall not be granted to the overseas citizens of India as
directed by the Citizenship (Amendment) Bill, 2003.
RIGHT TO FREEDOM OF RELIGION
India is a secular country with no officially recognized religions.
India‘s Constitution provides that ―all persons are equally entitled to freedom of
conscience and the right freely to profess, practise and propagate religion.‖
Related articles are:
Article 25: Freedom of conscience and free profession, practice and propagation of
religion
Article 26: Freedom to run religious affairs
Article 27: No person shall be compelled to pay any tax for the promotion or
maintenance of any religion
Article 28: Freedom as to attendance at religious instruction or religious worship in
certain educational institutions.
ARTICLE 25
Clause 1 provides : ―Subject to public order , morality and health and to the other
provisions of this part , all persons are equally entitled to freedom of conscience and the
right freely to profess , practise and propagate religion . ‖
This clause secures to every person
i. Freedom of conscience
ii. The right to : -
(a) Profess religion - to make an open declaration
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(b) Practise religion - practices which constitute integral and essential part of
religious practise
(c) Propagate religion- to spread and publicise one‘s religious views
Article 26 : freedom of religion of religious denominations
Article 26 provides : ― Subject to public order, morality and health, every religious denomination
or any section thereof shall have right-
(a) to establish & maintain institutions for religious & charitable purposes ;
(b) to manage its own affairs in matters of religion
(c) to own and acquire movable and immovable property and
(d) to administer such property in accordance with the law.
Religious denomination
It must be a collection of individuals who have a system of beliefs or doctrines which
they regard as conducive to their spiritual well-being, i.e. A common faith;
It must have a common organisation;
It must be designated by a distinctive name.
Art. 26 Clause (a) - right to establish and maintain institutions
Guarantees to every ―religious denomination‖ or any section thereof the right ―to
establish and maintain institutions for religious and charitable purposes‖.
Includes ―the right to exclude the profession or practices belonging to other religions‖.
Art. 26 Clause (b) - right to manage matters of religion
Guarantees to every ―religious denomination‖ the right ―to manage its own affairs in
matters of religion‖.
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―Matters of religion‖: includes religious practices, rites and ceremonies essential for the
practising of religion would not include the religious practices unless those practices are
found to constitute essential and integral part of a religion.
Art. 26 Clause (c) & (d) - right to own and administer property
Clause (c) secures to a religious denomination or any section thereof ―the right to own
and acquire movable and immovable property‖.
Clause (d) further strengthens this right by guaranteeing to the denomination ―the right to
administer such property in accordance with law‖.
Article 27 - freedom from payment of taxes for promotion of any particular religion
―No person shall be compelled to pay any taxes the proceeds of which are specifically
appropriated in payment of expenses for the promotion or maintenance of any particular religion
or religious denominations‖.
Objective: To protect secular characteristics of the Constitution of India
NOTE :-
Article 27 prohibits the levy of ‗tax‘ and not the imposition of a ‗fee‘ .
It does not prohibit :
(i) reconstruction of religious and educational places damaged during communal riots , at
the cost of government
(ii) land acquisition for temple meant for public use
(iii) programme held by Government of India to honour those who have contributed to India‘s
cultural heritage .
Article 28 Prohibition of religious instructions in educational institutions
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Clause (1) of Art. 28 provides ―No religious instruction shall be provided in any
educational institution wholly maintained out of State funds‖.
Clause (3) further provides ―No person attending any educational institution recognized
by the State of receiving aid out of State funds shall be required to take part in any
religious instruction that may be imparted in such institution or to attend or to attend any
religious worship that may be conducted in such institution or in any premises attached
thereto unless such person or, if such person is a minor, his guardian has given his
consent thereto‖.
Clause (2), an exception to Clause (1) provides that the prohibition contained in Clause
(1) ―would not apply to an educational institution which is administered by the State but
has been established under any endowment or trust which requires that religious
instruction shall be imparted in such institution‖.
RIGHTS TO PROPERTY
Meaning of Property:
The word property as used in Article 31 the Supreme Court has said should be given liberal
meaning and should be extended to all those well recognized types of interest which have the
insignia or characteristic of property right. Property is one or more components whether physical
or incoporeal,of a persons estate. Depending on the nature of the property, an owner of property
has the right to consume,alter,share,rent,mortgage,transfer or destroy it.
A brief history of property rights in Independent India:
When independent India first adopted its Constitution, the Right to Property, as enshrined in
Article 19(1)(f), was a fundamental right and therefore placed at a high pedestal. Article 19(1)(f)
had to be read along with Article 31 of the Constitution in order to prevent the Government from
depriving a person of his property without the ―authority of the law‖ and further that such law
should provide ―for compensation for the property taken possession of or acquired and either
fixes the amount of compensation, or specifies the principles on which, and the manner in which,
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the compensation is to be determined and give‖.
Both Article 19(1)(f) and Article 31 proved to be a substantial headache to the Indian
Government, as these provisions made it very difficult for the Government to proceed with its
socialist agenda of land reforms and nationalization schemes, as the Government simply could
not afford to pay reasonable compensation for the lands and corporations acquired by it.
Initially the Congress Party which was in power at the Centre aimed at maintaining the legality
of its action by introducing new provisions such as Article 31A,B & C along with Schedule IX to
the Constitution to protect, from judicial review, all those legislations which offended the
fundamental rights enshrined in Part III of the Constitution.
In 1977, the grand coalition of the Janata Party, had just wiped out the Congress Party, in the
elections held after the lifting of the internal emergency imposed by then Prime Minister Indira
Gandhi in the year 1975. A year later in 1978, the Janata Party passed the 44th Amendment to
the Constitution of India. As a part of these Amendments both Article 19(1)(f) & Article 31 were
deleted from the Constitution. Article 31 however was only party deleted in the sense that Article
31(1) which provided that ―no person shall be deprived of his property, save by the authority of
the law‖ was transferred out of the fundamental rights chapter and shifted to Chapter IV of Part
XII, in the form of Article 300A.
RIGHTS TO PROPERTY:
The Constitution originally provided for the right to property under Articles 19 and 31. Article
19 guaranteed to all citizens the right to acquire, hold and dispose of property. Article 31
provided that "no person shall be deprived of his property save by authority of law." It also
provided that compensation would be paid to a person whose property has been taken for public
purposes.
The provisions relating to the right to property were changed a number of times. The Forty-
Fourth Amendment of 1978 deleted the right to property from the list of fundamental rights. A
new provision, Article 300-A, was added to the constitution which provided that "no person shall
be deprived of his property save by authority of law‖
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Thus if a legislature makes a law depriving a person of his property, there would be no obligation
on the part of the State to pay anything as compensation. The aggrieved person shall have no
right to move the court under Article 32. Thus, the right to property is no longer a fundamental
right, though it is still a constitutional right. If the government appears to have acted unfairly, the
action can be challenged in a court of law by citizens.
CULTURAL AND EDUCATIONAL RIGHTS
WHY SPECIAL RIGHTS FOR MINORITIES?
India is a land of myriad ethnic, religious, caste and linguistic minorities affiliated to
distinct belief systems, sub-cultures and regions
Despite the several efforts by the government to improve the condition of the minority,
constitutional guaranteed rights, different institution and commission established to
monitor, the system has failed and minority faces discrimination, violence and atrocities
Gujarat riots where more than 2000 Muslims were killed
Indira Gandhi assassination led to the murder of 3000 Sikhs in Delhi
Atrocities against Dalit in Bihar, Jharkhand, Maharashtra Gujarat, and in north eastern
part of the India is very common
Even the foreigner residing in India and forming the well-defined religious and linguistic
minority also fall under the preview of this Article
THE PURPOSE TO GUARANTEE THESE RIGHTS AND TO DISTINGUISH
THEM FROM MAJORITY WAS NOT CREATING SUCH DISCRIMINATION BUT
TO MAKE THEM ABLE, TO DIFFUSE THEM WITH THE MAJORITY
WHO ARE MINORITIES?
The Constitution does not define the terms 'minority', nor does it lay down sufficient
indicia to the test for determination of a group as minority.
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The U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities
has defined minority as under:
1) The term 'minority' includes only those non-documents group of the
population which possess and wish to preserve stable ethnic, religious or linguistic
traditions or characteristics markedly different from those of the rest of the population;
2) Such minorities should properly include the number of persons
sufficient by themselves to preserve such traditions or characteristics; and
3) Such minorities should be loyal to the state of which they are
nationals.
The definition refers to group of individual who are particularly smaller as the majority in
a defined area.
Definition however does not indicate as to what factor of distinction, subjective or
objective are to be taken as the test for distinguishing a group from the rest.
Thus, while considering 'minority', a numerically smaller group, as against the majority in
a defined area, some place emphasis upon certain characteristics commonly possessed by
the members constituting the minority and, to them, these characteristics serves as
objective factors of distinction.
MINORITY RIGHTS IN INDIA
The constitution of India guarantees different rights to the minority. These are cultural
and educational rights which have been guaranteed under Article 29 and 30.
ARTICLE 29 PROTECTION OF INTERESTS OF MINORITIES.
(1) Any section of the citizens residing in the territory of India or any part thereof
having a distinct language, script or culture of its own shall have the right to conserve
the same.
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The application of this Article is upon person having a distinct language, script or culture
of its own and it takes into the consideration two types of minority one linguistic and
other religious minority
Under Article 29(1) any school or university can promote education in regional language
as far as it is done for minor and language of the minor.
(2) 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.
This Article is wide and unqualified. It confers a special right not on the minority but to
the majority also for the admission in the state maintained or aided educational institution
This it is very clear trough these provision that in any case no one can discriminate on the
ground of the language, caste or religion. Whether it is state maintained education
institute or private aided institution.
ARTICLE 30. RIGHT OF MINORITIES TO ESTABLISH AND ADMINISTER
EDUCATIONAL INSTITUTIONS.
(1) All minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.
The benefit of Article 30(1) extends only to linguistic or religious minorities and not to
any other section of the Indian citizens. Article here sate linguistic and religious minority.
Here minority means that community which is less than 50 percent of the total population
with the respects of the population of the state.
The words in the article administer and established in the Article 30(1) have to be read
together. This means that the religious minority will have the right to establish the
educational institution and can administer it only.
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If it established by the other community or by any other person then they cannot claim
the right under this article.
2) The State shall not, in granting aid to educational institutions, discriminate against
any educational institution on the ground that it is under the management of a
minority, whether based on religion or language.
Article 30(2) bars the state, Government aided educational institute should not be
discriminated by the state on the ground that it is under the management of a minority,
whether based on religion or language.
Minority educational institute are entitled to get financial assistance much the same way
as the educational institutions run by the majority community. This does not mean that
the minority educational institution can claim state as a matter of right. But there should
not be discrimination while providing financial assistance.
PURPOSE OF GRANTING CULTURAL AND EDUCATIONAL RIGHTS
Being India as a secular state to maintain it and let the minority to mix with the main
stream society. And can also help in the development of the country
Other reason is that India is a country of diverse culture, and everybody is equal. Hence
they have the equal opportunity to preserve it.
The minorities have been given protection to preserve and strength the integrity of the
country. The minority will fell isolated and separated if they are not given these rights.
General secular education will open doors of perception and act as the natural light of
mind for our countrymen to live in the whole. This is the true spirit of liberty, equality
and fraternity through medium of education
The rights to administer have been given to the minority, so that it can mold the
institution as it thinks fit, and accordance with its idea how the interest of the community
in general, and institution in particular, will be best served.
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RIGHTS TO FREEDOM
SIX FUNDAMENTAL RIGHTS TO FREEDOM
1. Freedom of speech and expression; [19(1) (a), 19(2)]
2. Freedom to assemble peaceably and without arms;
[19(1) (b), 19(3)]
3. Freedom to form association or union; [19(1) (c) 19(4)]
4. Freedom to move freely throughout the territory of India; [19(1) (d), 19(5)]
5. Freedom to reside and settle in any part of territory of India; [19(1) (e), 19(6)]
6. Freedom to practice any profession, or to carry on any occupation, trade or business.
[19(1) (f), 19(7)]
FREEDOM OF SPEECH AND EXPRESSION
Right to speak and express one’s opinion by:
Words of mouth
Writing
Painting
Pictures or
Any other manner.
To express one’s opinion or idea freely through any communicable medium
Freedom to hold opinion without interference
To seek and receive information and idea through any medium.
Freedom of speech and expression includes:
Right to educate and to be educated
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Right to inform and to be informed.
Ozair husain v. union of India AIR 2003 Delhi 103
RESTRICTIONS/EXCEPTIONS
Government would be entitled to withhold information related to:
International investigation
National security and public safety
Investigation, detection and prevention of crime
Internal deliberation of the govt.
Information received in confidence from a source outside the govt.
Information, if disclosed, would violate the privacy of individual
Information of economic nature (including trade secretes)
Information about scientific discoveries.
2.FREEDOM TO ASSEMBLE PECEABLY AND WITHOUT ARMS
Assembly must be peaceful
It must be unarmed
State may impose reasonable restrictions in the interest of public order and integrity of
India
No right to hold assembly on private property of others.
3.FREEDOM TO FORM ASSOCIATION OR UNIONS
Corollary of right to freedom of speech and expression.
Essential to democracy
4.FREEDOM TO MOVEMENT
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Right to move freely in the territory of india.
Right to move wherever one likes, whenever one likes.
5.FREEDOM OF A RESIDENT
• According to the article 19(1)(e),indian citizens have the right to reside and settle in any
part of india.
• According to clause (5)of article 19,however, reasonable,restriction can be imposed on
these rights by law by the state in the general interests of the general public or for the
protection of interest of any scheduled tribe.
6.FREEDOM TO PRACTICE ANY PROFESSION OR TO CARRY ON
OCCUPATION,BUSINESS OR TRADE
Freedom to practice any profession,or to carry on any occupation,trade or
business,subject to resonable restrictions in the interests of general public and any law
laying down technichal qualifications and state monopoly of trade or business.
PROTECTION IN RESPECT OF CONVICTION
Constitute limitations on the legitimate powers of the parliament
Article 20 provides protection against
1. Ex-post facto laws [20(1)]
2. Double jeopardy [20(2)]
3. Self incrimination [20(3)]
EX-POST FACTO LAWS
Law declaring offence subsequent to the commission of an offence.
(no one can be convicted except for violation of a law in force.)
(criminal law amendment act, 1952, sec 165A- IPC– bribe as a crime)
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• Law enhancing penalty subsequent to the commission of the offence.
• (no person shall be subject to a penalty greater than that which might have been inflicted
under the law in force at the time of commission of an offence.)
• Beneficial ex-facto laws.
• The ex-facto laws which have reduced the rigour of a criminal law, does not fall within
the prohibition of Article 20(1).
• Procedural ex-facto laws.
• (law enacted subsequent to the commission of an offence , prescribing a new procedure,
different from the ordinary procedure or trial, is not hit by Article 20(1).
DOUBLE JEOPARDY
No person shall be prosecuted and punished for the same offence more than once.
Nemo debet bis vexari
( no one shall be put in jeopardy twice for the same offence)
SELF DISCRIMINATION
No person accused of an offence shall be compelled to be witness against himself.
Nemo tenetur prodere accussare seipsum
( no man is bound to accuse himself)
Protection is available if following ingredients are present:
1. It is protection available to a person accused of an offence
2. It is a protection against compulsion to be a witness; and
3. It is a protection against such compulsion resulting in his giving evidence against himself
RIGHT TO LIFE AND PERSONAL LIBERTY
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Applicable to
Citizens
Non citizens
Only to a natural person
Fullest opportunity to develop one‘s personality and potentiality to the highest level
possible
Right to live decently as a member of a civilised society.
Right to live with human dignity
Right to reputation
Right to livelihood
Sexual harassment of women at work places.
Right to shelter
Right to live in unpolluted environment
Right to education
Right against honour killing
Right to health and timely medical aid
(duty of govt. for focusing and giving priority to the health of its citizens)
Duty to preserve life
(in the hands 0f police authority and public authority)
No right to die or commit suicide
(sec. 309- IPC)
RIGHT TO EDUCATION
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86th
amendment act, 2002
The State shall provide free and compulsory education to children of the age of 6-14 yrs
Prime Minister Manmohan Singh announced the operationalisation of the Act. Children,
who had either dropped out of schools or never been to any educational institution, will
get elementary education as it will be binding on the part of the local and State
governments to ensure that all children in the 6–14 age group get schooling. As per the
Act, private educational institutions should reserve 25 per cent seats for children from the
weaker sections of society.
The Centre and the States have agreed to share the financial burden in the ratio of 55:45,
while the Finance Commission has given Rs.250 billion to the States for implementing
the Act. The Centre has approved an outlay of Rs.150 billion for 2010–2011.
The school management committee or the local authority will identify the drop-outs or
out-of-school children aged above six and admit them in classes appropriate to their age
after giving special consideration.
RIGHT TO PROTECTION AGAINST ARREST AND DETENTION
It stipulates that no person who is arrested is to be detained in custody without being
informed of the grounds of arrest, no such person shall be denied the right to be defended
by a legal practitioner of his choice ,every arrested and detained person shall be
produced before the nearest magistrate within a period of 24 hours of his arrest. These
safeguards are not available to an enemy alien and a person detained under a law
providing for detention.
Right to be informed of the grounds of arrest
Right to consult and to be defended by a legal practitioner
Right to be produced before the nearest magistrate.
Right not to detained in custody beyond 24 hours without the authority of the magistrate.
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RIGHT AGAINST EXPLOITATION
• The right against exploitation is one of the most vital fundamental rights given by the
Indian Constitution. These rights aim at protecting citizens from being subjugated to
environmental, domestic and work hazards. Articles 23 and 24 of the Indian Constitution
safeguard women and children and others against exploitation of various forms.
Article Against Human Trafficking And Forced Labour
• The first provision in the Article that mentions the Right against exploitation, states the
‗eradication of human trafficking and forced labour (beggar)‘. Article 23 declares slave
trade, prostitution and human trafficking a punishable offence. There is, however, an
exception here in the form of employment without payment for compulsory services for
public purposes. Compulsory military conscription is covered by this provision
Article Against Child Labour
Article 24 of the Indian Constitution prohibits abolition of employment of children below the age
of 14 years in dangerous jobs like factories and mines. Child labour is considered gross violation
of the spirit and provisions of the constitution. The parliament has also passed the Child Labour
act of 1986, by providing penalties for employers and relief and rehabilitation amenities for those
affected.
Although Articles 23 and 24 lay down definite provisions against trafficking and child labour,
the weaker sections of the society are still faced by such grave problems. Punishable by law,
these acts are now legitimately bound by legal actions of the Parliament in the form of Bonded
Labour Abolition Act of 1976 and the Child Labour Act of 1986, along with the ground rules and
provisions stated in the Right against Exploitation act
RIGHT TO CONSTITUTIONAL REMEDIES:
Article 32 of the Indian constitution provides for constitutional remedies against the violation or
transgression of fundamental rights. The fundamental rights are of highest importance to the
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individuals. They are basic conditions for the fullest development of personality.
Article 32 which was referred to ―as the very soul of the constitution‖ by Dr. Ambedkar,
provides for constitutional remedies. Clause 2 of Article 32 provides that, ―The Supreme Court
shall have the power to issue directions or order or writs including the writs in the nature of
habeas corpus, mandamus, prohibition, Quo warranto and criterion, whichever may be
appropriate for the enforcement of any of the rights conferred by‖ fundamental rights. The
citizens are given the right to move—the Supreme Court in case of transgression of fundamental
rights. The Supreme Court thus is constituted into a protector and guarantor fundamental rights.
The right to constitutional remedy is itself a fundamental right.
Article 32 (1) says:
The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed.
Article 32 (2) says:
The Supreme Court shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part.
Article 32(3) Says:
Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
And Article 32 (4) Says:
The right guaranteed by this article shall not be suspended except as otherwise provided for by
this Constitution.
Besides the Supreme Court, the High Courts also have been given a role in the protection of
fundamental rights. Under Art. 226 of the constitution, High Courts also can issue writs for the
enforcement of fundamental rights.
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But the jurisdictions of the Supreme Court and the High Courts in the matter of issue of writs are
slightly different. The Supreme Court can issue writs only in case of infringement of a
fundmental right in part III of the constitution. The High Courts on the other can issue writs
against infringement of fundamental rights, as well as against contravention of ordinary law of
redress grievances arising therefrom. Thus the area of High Courts, with respect to the power to
issue writs is wider than that of the Supreme Court. However, competence of the High Courts to
issue writs is limited within its territorial jurisdiction. The Supreme Court‘s area of competence
is co-terminus with the territory of India as a whole.
In case of transgression of fundamental rights the Supreme Court or the High Courts may issue
five kinds of writs. These are writs of Habeas Corpus, Mandamus, Prohibition, Criterion, and
Quowarranto.
Habeas Corpus—Habeas Corpus literally means—that human person is sacred. Hence no man
may be detained illegally. Whenever a man is detained, he must be produced before a court. This
writ is a powerful safeguard against arbitrary arrest and detention.
◦Mandamus—meaning ‗command‘, mandamus calls upon public servants to perform some
duties. Thus mandamus is issued against dereliction of duty.
◦Prohibition—as the very term prohibition—suggests, this writ is issued by the Supreme Court or
the High Courts, to prohibit inferior courts under them to overstep their jurisdiction.
◦Criterion—it enables a superior court of compels inferior courts to submit records of
proceedings to the higher court.
◦ Quo warranto—literally means by what right. This writ is issued to determine the legality of a
person‘s claim to public office. The purpose of this writ is to prevent usurpation of a public
office by an undesirable or, unqualified person.
Limitations
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Like fundamental rights themselves, the right to constitutional remedies under Article 32 are not
without limits. The constitution visualizes there situations when fundamental rights may be
denied hut constitutional remedies will not be available i.e. Article 32 will not be applicable.
◦Article 33 empower the Parliament to modify application of fundamental rights to armed forces
and the Police to ensure proper discharge of their duties.
◦Secondly, under Article 34, during the operation of Martial law in any area, the Parliament may
indemnify any person in the service of the central or a state government for acts for the
maintenance or restoration of law and order.
◦Thirdly, during emergency proclaimed under Art 352 of the constitution, the fundamental rights
guaranteed to the citizens, will remain suspended. Article 358 authorize the Parliament to restrict
fundamental rights guaranteed by Art 19 during the pendency of an emergency under Article
352.
Article 359 empower the President to suspend the right to move the courts for the restoration of
fundamental rights. In other words, Article 359 empowers the President to suspend Art 32 of the
constitution. Such an order however is to be submitted to the Parliament, and the Parliament has
the right to disapprove the Presidential order.
Article 226 {Power of High Courts to issue certain writs}
1.Notwithstanding anything in article 32, every High Court shall have power, throughout the
territories in relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for
any other purpose.
2.The power conferred by clause (1) to issue directions, orders or writs to any Government,
41
authority or person may also be exercised by any High Court exercising jurisdiction in relation to
the territories within which the cause of action, wholly or in part, arises for the exercise of such
power, notwithstanding that the seat of such Government or authority or the residence of such
person is not within those territories
3.Where any party against whom an interim order, whether by way of injunction or stay or in any
other manner, is made on, or in any proceedings relating to, a petition under clause (1), without –
a.furnishing to such party copies of such petition and all documents in support of the plea for
such interim order; and giving such party an opportunity of being heard, makes an application to
the High Court for
b.the vacation of such order and furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on which it is received or from the date
on which the copy of such application is so furnished, whichever is later, or where the High
Court is closed on the last day of that period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is not so disposed of, the interim order shall,
on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
4.The power conferred on a High Court by this article shall not be in derogation of the power
conferred on the Supreme Court by clause (2) of article 32.
What is the difference between Article 226 and Article 32 ? :
Article 226:
1. Article 226 empowers every High Court to issue the writs.
2. Article 32 is itself a fundamental right. Article 226 is not a fundamental right.
3. The President of India cannot suspend Article 226 during the period of Emergency
4. Article 226 is not a right as that of Article 32. The High Court may issue writs according to its
discretionary power.
5. Article 226 enables the High Court to issue orders to writs in the nature of habeas corpus,
mandamus, prohibition, certiorari, quowarranto, to protect aggrieved and any other purpose.
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Article 32:
1. Article 32 empowers the Supreme Court to issue writs.
2. Article 32 is a fundamental right, and it is included in Part –III of the Constitution. Article 32
is a basic feature of the Constitution. Article 226 is a fundamental right.
3. During the period of emergency, the fundamental rights (Excepts the articles 21 and 22) can
be suspended. Therefore, Article 32 can also be suspended during emergency Period.
4. The applicant can approach the Supreme Court as a right, being it is fundamental right.
5. Article 32 empowers the Supreme Court to issue the writs only when the Fundamental Rights
are violated or threatened.
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