Fundamental Rights PDF

7 Fundamental Rights The Fundamental Rights are enshrined in Part III of the Constitution from Articles 12 to 35. In this regard, the framers of the Constitution derived inspiration from the Constitution of USA (i.e., Bill of Rights). Part III of the Constitution is rightly described as the...

7 Fundamental Rights The Fundamental Rights are enshrined in Part III of the Constitution from Articles 12 to 35. In this regard, the framers of the Constitution derived inspiration from the Constitution of USA (i.e., Bill of Rights). Part III of the Constitution is rightly described as the Magna Carta of India.1 It contains a very long and comprehensive list of ‘justiciable’ Fundamental Rights. In fact, the Fundamental Rights in our Constitution are more elaborate than those found in the Constitution of any other country in the world, including the USA. The Fundamental Rights are guaranteed by the Constitution to all persons without any discrimination. They uphold the equality of all individuals, the dignity of the individual, the larger public interest and unity of the nation. The Fundamental Rights are meant for promoting the ideal of political democracy. They prevent the establishment of an authoritarian and despotic rule in the country, and protect the liberties and freedoms of the people against the invasion by the State. They operate as limitations on the tyranny of the executive and arbitrary laws of the legislature. In short, they aim at establishing ‘a government of laws and not of men’. The Fundamental Rights are named so because they are guaranteed and protected by the Constitution, which is the fundamental law of the land. They are ‘fundamental’ also in the sense that they are most essential for the all-round development (material, intellectual, moral and spiritual) of the individuals. Originally, the Constitution provided for seven Fundamental Rights viz, 1. Right to equality (Articles 14–18) 2. Right to freedom (Articles 19–22) 3. Right against exploitation (Articles 23–24) 4. Right to freedom of religion (Articles 25–28) 5. Cultural and educational rights (Articles 29–30) 6. Right to property (Article 31)  7. Right to constitutional remedies (Article 32) However, the right to property was deleted from the list of Fundamental Rights by the 44th Amendment Act, 1978. It is made a legal right under Article 300-A in Part XII of the Constitution. So at present, there are only six Fundamental Rights.  FEATURES OF FUNDAMENTAL RIGHTS The Fundamental Rights guaranteed by the Constitution are characterised by the following: 1. Some of them are available only to the citizens while others are available to all persons whether citizens, foreigners or legal persons like corporations or companies. 2. They are not absolute but qualified. The state can impose reasonable restrictions on them. However, whether such restrictions are reasonable or not is to be decided by the courts. Thus, they strike a balance between the rights of the individual and those of the society as a whole, between individual liberty and social control. 3. All of them are available against the arbitrary action of the state. However, some of them are also available against the action of private individuals. 4. Some of them are negative in character, that is, place limitations on the authority of the State, while others are positive in nature, conferring certain privileges on the persons. 5. They are justiciable, allowing persons to move the courts for their enforcement, if and when they are violated. 6. They are defended and guaranteed by the Supreme Court. Hence, the aggrieved person can directly go to the Supreme Court, not necessarily by way of appeal against the judgement of the high courts. 7. They are not sacrosanct or permanent. The Parliament can curtail or repeal them but only by a constitutional amendment act and not by an ordinary act. Moreover, this can be done without affecting the ‘basic structure’ of the Constitution. (The amenability of fundamental rights is explained in detail in Chapter 11). 8. They can be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21. Further, the six rights guaranteed by Article 19 can be suspended only when emergency is declared on the grounds of war or external aggression (i.e., external emergency) and not on the ground of armed rebellion (i.e., internal emergency). (The suspension of fundamental rights during a national Emergency is explained in detail in Chapter 16). 9. Their scope of operation is limited by Article 31A (saving of laws providing for acquisition of estates, etc.), Article 31B (validation of certain acts and regulations included in the 9th Schedule) and Article 31C (saving of laws giving effect to certain directive principles). 10. Their application to the members of armed forces, para-military forces, police forces, intelligence agencies and analogous services can be restricted or abrogated by the Parliament (Article 33). 11. Their application can be restricted while martial law is in force in any area. Martial law means ‘military rule’ imposed under abnormal circumstances to restore order (Article 34). It is different from the imposition of national emergency. 12. Most of them are directly enforceable (self-executory) while a few of them can be enforced on the basis of a law made for giving effect to them. Such a law can be made only by the Parliament and not by state legislatures so that uniformity throughout the country is maintained (Article 35).  DEFINITION OF STATE The term ‘State’ has been used in different provisions concerning the fundamental rights. Hence, Article 12 has defined the term for the purposes of Part III. According to it, the State includes the following: (a) Government and Parliament of India, that is, executive and legislative organs of the Union government. (b) Government and legislature of states, that is, executive and legislative organs of state government. (c) All local authorities, that is, municipalities, panchayats, district boards, improvement trusts, etc. (d) All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC, SAIL, etc. Thus, State has been defined in a wider sense so as to include all its agencies. It is the actions of these agencies that can be challenged in the courts as violating the Fundamental Rights. According to the Supreme Court, even a private body or an agency working as an instrument of the State falls within the meaning of the ‘State’ under Article 12.  LAWS INCONSISTENT WITH FUNDAMENTAL RIGHTS Article 13 declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void. In other words, it expressively provides for the doctrine of judicial review. This power has been conferred on the Supreme Court (Article 32) and the high courts (Article 226) that can declare a law unconstitutional and invalid on the ground of contravention of any of the Fundamental Rights. The term ‘law’ in Article 13 has been given a wide connotation so as to include the following: (a) Permanent laws enacted by the Parliament or the state legislatures; (b) Temporary laws like ordinances issued by the president or the state governors; (c) Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-law, rule, regulation or notification; and (d) Non-legislative sources of law, that is, custom or usage having the force of law. Thus, not only a legislation but any of the above can be challenged in the courts as violating a Fundamental Right and hence, can be declared as void. Further, Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged. However, the Supreme Court held in the Kesavananda Bharati case2 (1973) that a Constitutional amendment can be challenged on the ground that it violates a fundamental right that forms a part of the ‘basic structure’ of the Constitution and hence, can be declared as void. Table 7.1 Fundamental Rights at a Glance Category Consists of 1. Right to (a) Equality before law and equal equality protection of laws (Article 14).  (Articles 14– 18) (b) Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Article 15). (c) Equality of opportunity in matters of public employment (Article 16). (d) Abolition of untouchability and prohibition of its practice (Article 17). (e) Abolition of titles except military and academic (Article 18). 2. Right to (a) Protection of six rights regarding freedom freedom of: (i) speech and expression, (Articles 19– (ii) assembly, (iii) association, (iv) 22) movement, (v) residence, and (vi) profession (Article 19). (b) Protection in respect of conviction for offences (Article 20). (c) Protection of life and personal liberty (Article 21). (d) Right to elementary education (Article 21A). (e) Protection against arrest and detention in certain cases (Article 22). 3. Right against (a) Prohibition of traffic in human beings exploitation and forced labour (Article 23). (Articles 23– 24) (b) Prohibition of employment of children in factories, etc. (Article 24). 4. Right to (a) Freedom of conscience and free freedom of profession, practice and propagation religion of religion (Article 25). (Article 25– 28)  (b) Freedom to manage religious affairs (Article 26). (c) Freedom from payment of taxes for promotion of any religion (Article 27). (d) Freedom from attending religious instruction or worship in certain educational institutions (Article 28). 5. Cultural and (a) Protection of language, script and educational culture of minorities (Article 29). rights (Articles 29– 30) (b) Right of minorities to establish and administer educational institutions (Article 30). 6. Right to Right to move the Supreme Court for the constitutional enforcement of fundamental rights remedies including the writs of (i) habeas corpus, (Article 32) (ii) mandamus, (iii) prohibition, (iv) certiorari, and (v) quo war-rento (Article 32). Table 7.2 Fundamental Rights (FR) of Foreigners FR available only to citizens and not to FR available to both foreigners citizens and foreigners (except enemy aliens) 1. Prohibition of discrimination on 1. Equality before law grounds of religion, race, caste, sex or and equal protection of place of birth (Article 15). laws (Article 14). 2. Equality of opportunity in matters of 2. Protection in respect public employment (Article 16). of conviction for  offences (Article 20). 3. Protection of six rights regarding 3. Protection of life freedom of : (i) speech and expression, and personal liberty (ii) assembly, (iii) association, (iv) (Article 21). movement, (v) residence, and (vi) profession (Article 19). 4. Protection of life and personal 4. Right to elementary liberty (Article 21). education (Article 21A). 5. Right of minorities to establish and 5. Protection against administer educational institutions arrest and detention in (Article 30). certain cases (Article 22). 6. Prohibition of traffic in human beings and forced labour (Article 23). 7. Prohibition of employment of children in factories etc., (Article 24). 8. Freedom of conscience and free profession, practice and propagation of religion (Article 25). 9. Freedom to manage religious affairs (Article 26). 10. Freedom from payment of taxes for promotion of any religion (Article 27). 11. Freedom from attending religious instruction or worship in certain educational institutions (Article 28).  RIGHT TO EQUALITY 1. Equality before Law and Equal Protection of Laws Article 14 says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. This provision confers rights on all persons whether citizens or foreigners. Moreover, the word ‘person’ includes legal persons, viz, statutory corporations, companies, registered societies or any other type of legal person. The concept of ‘equality before law’ is of British origin while the concept of ‘equal protection of laws’ has been taken from the American Constitution. The first concept connotes: (a) the absence of any special privileges in favour of any person, (b) the equal subjection of all persons to the ordinary law of the land administered by ordinary law courts, and (c) no person (whether rich or poor, high or low, official or non-official) is above the law. The second concept, on the other hand, connotes: (a) the equality of treatment under equal circumstances, both in the privileges conferred and liabilities imposed by the laws, (b) the similar application of the same laws to all persons who are similarly situated, and (c) the like should be treated alike without any discrimination. Thus, the former is a negative concept while the latter is a positive concept. However, both of them aim at establishing equality of legal status, opportunity and justice. The Supreme Court held that where equals and unequals are treated differently, Article 14 does not apply. While Article 14 forbids class legislation, it permits reasonable classification of persons, objects and transactions by the law. But the classification should not be arbitrary, artificial or evasive. Rather, it should be based on an intelligible differential and substantial distinction. Rule of Law The concept of ‘equality before law’ is an element of the concept of ‘Rule of Law’, propounded by A.V. Dicey, the British jurist. His concept has the following three elements or aspects: (i) Absence of arbitrary power, that is, no man can be punished except for a breach of law.  (ii) Equality before the law, that is, equal subjection of all citizens (rich or poor, high or low, official or non-official) to the ordinary law of the land administered by the ordinary law courts3. (iii) The primacy of the rights of the individual, that is, the constitution is the result of the rights of the individual as defined and enforced by the courts of law rather than the constitution being the source of the individual rights. The first and the second elements are applicable to the Indian System and not the third one. In the Indian System, the constitution is the source of the individual rights. The Supreme Court held that the ‘Rule of Law’ as embodied in Article 14 is a ‘basic feature’ of the constitution. Hence, it cannot be destroyed even by an amendment. Exceptions to Equality The rule of equality before law is not absolute and there are constitutional and other exceptions to it. These are mentioned below: 1. The President of India and the Governor of States enjoy the following immunities (Article 361): (i) The President or the Governor is not answerable to any court for the exercise and performance of the powers and duties of his office. (ii) No criminal proceedings shall be instituted or continued against the President or the Governor in any court during his term of office. (iii) No process for the arrest or imprisonment of the President or the Governor shall be issued from any court during his term of office. (iv) No civil proceedings against the President or the Governor shall be instituted during his term of office in any court in respect of any act done by him in his personal capacity, whether before or after he entered upon his office, until the expiration of two months next after notice has been delivered to him. 2. No person shall be liable to any civil or criminal proceedings in any court in respect of the publication in a newspaper (or by radio or television) of a substantially true report of any proceedings of either  House of Parliament or either House of the Legislature of a State (Article 361-A). 3. No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof (Article 105). 4. No member of the Legislature of a state shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof (Article 194). 5. Article 31-C is an exception to Article 14. It provides that the laws made by the state for implementing the Directive Principles contained in clause (b) or clause (c) of Article 39 cannot be challenged on the ground that they are violative of Article 14. The Supreme Court held that “where Article 31-C comes in, Article 14 goes out”. 6. The foreign sovereigns (rulers), ambassadors and diplomats enjoy immunity from criminal and civil proceedings. 7. The UNO and its agencies enjoy the diplomatic immunity. 2. Prohibition of Discrimination on Certain Grounds Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. The two crucial words in this provision are ‘discrimination’ and ‘only’. The word ‘discrimination’ means ‘to make an adverse distinction with regard to’ or ‘to distinguish unfavourably from others’. The use of the word ‘only’ connotes that discrimination on other grounds is not prohibited. The second provision of Article 15 says that no citizen shall be subjected to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex, or place of birth with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, road and places of public resort maintained wholly or partly by State funds or dedicated to the use of general public. This provision prohibits discrimination both by the State and private individuals, while the former provision prohibits discrimination only by the State. There are four exceptions to this general rule of non-discrimination: (a) The state is permitted to make any special provision for women and children. For example, reservation of seats for women in local bodies or provision of free education for children.  (b) The state is permitted to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes4. For example, reservation of seats or fee concessions in public educational institutions. (c) The state is empowered to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes or the scheduled tribes regarding their admission to educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions. (d) The state is empowered to make any special provision for the advancement of any economically weaker sections of citizens. Further, the state is allowed to make a provision for the reservation of upto 10% of seats for such sections in admission to educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions. This reservation of upto 10% would be in addition to the existing reservations. For this purpose, the economically weaker sections would be notified by the state from time to time on the basis of family income and other indicators of economic disadvantage. Reservation for OBCs in Educational Institutions The above exception(c) was added by the 93rd Amendment Act of 2005. In order to give effect to this provision, the Centre enacted the Central Educational Institutions (Reservation in Admission) Act, 2006, providing a quota of 27% for candidates belonging to the Other Backward Classes (OBCs) in all central higher educational institutions including the Indian Institutes of Technology (IITs) and the Indian Institutes of Management (IIMs). In April 2008, the Supreme Court upheld the validity of both, the Amendment Act and the OBC Quota Act. But, the Court directed the central government to exclude the ‘creamy layer’ (advanced sections) among the OBCs while implementing the law. The children of the following different categories of people belong to ‘creamy layer’ among OBCs and thus will not get the quota benefit : 1. Persons holding constitutional posts like President, Vice-President, Judges of SC and HCs, Chairman and Members of UPSC and SPSCs,  CEC, CAG and so on. 2. Group ‘A’ / Class I and Group ‘B’ / Class II Officers of the All India, Central and State Services; and Employees holding equivalent posts in PSUs, Banks, Insurance Organisations, Universities etc., and also in private employment. 3. Persons who are in the rank of colonel and above in the Army and equivalent posts in the Navy, the Air Force and the Paramilitary Forces. 4. Professionals like doctors, lawyers, engineers, artists, authors, consultants and so on. 5. Persons engaged in trade, business and industry. 6. People holding agricultural land above a certain limit and vacant land or buildings in urban areas. 7. Persons having gross annual income of more than ₹8 lakh or possessing wealth above the exemption limit. In 1993, when the “creamy layer” ceiling was introduced, it was ₹1 lakh. It was subsequently revised to ₹2.5 lakh in 2004, ₹4.5 lakh in 2008, ₹6 lakh in 2013 and ₹8 lakh in 2017. Reservation for EWSs in Educational Institutions The above exception (d) was added by the 103rd Amendment Act of 2019. In order to give effect to this provision, the central government issued an order (in 2019) providing 10% reservation to the Economically Weaker Sections (EWSs) in admission to educational institutions. The benefit of this reservation can be availed by the persons belonging to EWSs who are not covered under any of the existing schemes of reservations for SCs, STs and OBCs. The eligibility criteria laid down in this regard is as follows: 1. Persons whose family has gross annual income below ₹8 lakh are to be identified as EWSs for the benefit of reservation. The income would include income from all sources i.e., salary, agriculture, business, profession etc. and it would be income for the financial year prior to the year of application. 2. Persons whose family owns or possesses any one of the following assets are to be excluded from being identified as EWSs, irrespective of the family income: (a) 5 acres of Agricultural land and above. (b) Residential flat of 1000 sq.ft. and above.  (c) Residential plot of 100 sq.yards and above in notified municipalities. (d) Residential plot of 200 sq.yards and above in areas other than the notified municipalities. 3. The property held by a family in different locations or different places / cities would be clubbed while applying the land or property holding test to determine EWS status. 4. Family for this purpose would include the person who seeks benefit of reservation, his/her parents and siblings below the age of 18 years as also his/ her spouse and children below the age of 18 years. 3. Equality of Opportunity in Public Employment Article 16 provides for equality of opportunity for all citizens in matters of employment or appointment to any office under the State. No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds of only religion, race, caste, sex, descent, place of birth or residence. There are four exceptions to this general rule of equality of opportunity in public employment: (a) Parliament can prescribe residence as a condition for certain employment or appointment in a state or union territory or local authority or other authority. As the Public Employment (Requirement as to Residence) Act of 1957 expired in 1974, there is no such provision for any state except Andhra Pradesh5 and Telangana5a. (b) The State can provide for reservation of appointments or posts in favour of any backward class that is not adequately represented in the state services. (c) A law can provide that the incumbent of an office related to religious or denominational institution or a member of its governing body should belong to the particular religion or denomination. (d) The state is permitted to make a provision for the reservation of upto 10% of appointments or posts in favour of any economically weaker sections of citizens. This reservation of upto 10% would be in addition to the existing reservation. For this purpose, the economically weaker sections would be notified by the state from time to time on the basis of family income and other indicators of economic disadvantage. Mandal Commission and Aftermath In 1979, the Morarji Desai Government appointed the Second6 Backward Classes Commission under the chairmanship of B.P. Mandal, a Member of Parliament, in terms of Article 340 of the Constitution to investigate the conditions of the socially and educationally backward classes and suggest measures for their advancement. The commission submitted its report in 1980 and identified as many as 3743 castes as socially and educationally backward classes. They constitute nearly 52% component of the population, excluding the scheduled castes (SCs) and the scheduled tribes (STs). The commission recommended for reservation of 27% government jobs for the Other Backward Classes (OBCs) so that the total reservation for all ((SCs, STs and OBCs) amounts to 50%.7 It was after ten years in 1990 that the V.P. Singh Government declared reservation of 27% government jobs for the OBCs. Again in 1991, the Narasimha Rao Government introduced two changes: (a) preference to the poorer sections among the OBCs in the 27% quota, i.e., adoption of the economic criteria in granting reservation, and (b) reservation of another 10% of jobs for poorer (economically backward) sections of higher castes who are not covered by any existing schemes of reservation. In the famous Mandal case8 (1992), the scope and extent of Article 16(4), which provides for reservation of jobs in favour of backward classes, has been examined thoroughly by the Supreme Court. Though the Court has rejected the additional reservation of 10% for poorer sections of higher castes, it upheld the constitutional validity of 27% reservation for the OBCs with certain conditions, viz, (a) The advanced sections among the OBCs (the creamy layer) should be excluded from the list of beneficiaries of reservation. (b) No reservation in promotions; reservation should be confined to initial appointments only. Any existing reservation in promotions can continue for five years only (i.e., upto 1997). (c) The total reserved quota should not exceed 50% except in some extraordinary situations. This rule should be applied every year. (d) The ‘carry forward rule’ in case of unfilled (backlog) vacancies is valid. But it should not violate 50% rule. (e) A permanent statutory body should be established to examine complaints of over-inclusion and under-inclusion in the list of OBCs.  With regard to the above rulings of the Supreme Court, the government has taken the following actions: (a) Ram Nandan Committee was appointed to identify the creamy layer among the OBCs. It submitted its report in 1993, which was accepted. (b) National Commission for Backward Classes was established in 1993 by an act of Parliament. Its mandate was to examine the complaints of under-inclusion, over-inclusion or non-inclusion of any class of citizens in the list of backward classes for the purpose of job reservation. Later, the 102nd Amendment Act of 2018 conferred a constitutional status on the commission and also enlarged its functions. For this purpose, the amendment inserted a new Article 338-B in the constitution. (c) In order to nullify the ruling with regard to reservation in promotions, the 77th Amendment Act was enacted in 1995. It added a new provision in Article 16 that empowers the State to provide for reservation in promotions of any services under the State in favour of the SCs and STs that are not adequately represented in the state services. Again, the 85th Amendment Act of 2001 provides for ‘consequential seniority’ in the case of promotion by virtue of rule of reservation for the government servants belonging to the SCs and STs with retrospective effect from June 1995. (d) The ruling with regard to backlog vacancies was nullified by the 81st Amendment Act of 2000. It added another new provision in Article 16 that empowers the State to consider the unfilled reserved vacancies of a year as a separate class of vacancies to be filled up in any succeeding year or years. Such class of vacancies are not to be combined with the vacancies of the year in which they are being filled up to determine the ceiling of 50% reservation on total number of vacancies of that year. In brief, it ends the 50% ceiling on reservation in backlog vacancies. (e) The 76th Amendment Act of 1994 has placed the Tamil Nadu Reservations Act9 of 1994 in the Ninth Schedule to protect it from judicial review as it provided for 69 per cent of reservation, far exceeding the 50 per cent ceiling. Reservation for EWSs in Public Employment The above exception (d) was added by the 103rd Amendment Act of 2019. In order to give effect to this provision, the central government issued an order (in 2019) providing 10% reservation to the Economically Weaker Sections (EWSs) in civil posts and services in the Government of India. The benefit of this reservation can be availed by the persons belonging to EWSs who are not covered under any of the existing schemes of reservation for SCs, STs and OBCs. The eligibility criteria laid down in this regard has already been explained under Article 15. Further, the scientific and technical posts which satisfy all the following conditions can be exempted from the purview of this reservation: (i) The posts should be in grades above the lower grade in Group A of the service concerned. (ii) They should be classified as “scientific or technical” in terms of Cabinet Secretariat Order (1961), according to which scientific and technical posts for which qualifications in the natural sciences or exact sciences or applied sciences or in technology are prescribed and the incumbents of which have to use that knowledge in the discharge of their duties. (iii) The posts should be for conducting research or for organizing, guiding and directing research. 4. Abolition of Untouchability Article 17 abolishes ‘untouchability’ and forbids its practice in any form. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. In 1976, the Untouchability (Offences) Act, 1955 has been comprehensively amended and renamed as the Protection of Civil Rights Act, 1955 to enlarge the scope and make penal provisions more stringent. The act defines civil right as any right accruing to a person by reason of the abolition of untouchability by Article 17 of the Constitution. The term ‘untouchability’ has not been defined either in the Constitution or in the Act. However, the Mysore High Court held that the subject matter of Article 17 is not untouchability in its literal or grammatical sense but the ‘practice as it had developed historically in the country’. It refers to the social disabilities imposed on certain classes of persons by reason of their birth in certain castes. Hence, it does not cover social boycott of a few individuals or their exclusion from religious services, etc. The Supreme Court held that the right under Article 17 is available against private individuals and it is the constitutional obligation of the State to take necessary action to ensure that this right is not violated. 5. Abolition of Titles Article 18 abolishes titles and makes four provisions in that regard: (a) It prohibits the state from conferring any title (except a military or academic distinction) on any body, whether a citizen or a foreigner. (b) It prohibits a citizen of India from accepting any title from any foreign state. (c) A foreigner holding any office of profit or trust under the state cannot accept any title from any foreign state without the consent of the president. (d) No citizen or foreigner holding any office of profit or trust under the State is to accept any present, emolument or office from or under any foreign State without the consent of the president. From the above, it is clear that the hereditary titles of nobility like Maharaja, Raj Bahadur, Rai Bahadur, Rai Saheb, Dewan Bahadur, etc, which were conferred by colonial States are banned by Article 18 as these are against the principle of equal status of all. In 199610 , the Supreme Court upheld the constitutional validity of the National Awards–Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Sri. It ruled that these awards do not amount to ‘titles’ within the meaning of Article 18 that prohibits only hereditary titles of nobility. Therefore, they are not violative of Article 18 as the theory of equality does not mandate that merit should not be recognised. However, it also ruled that they should not be used as suffixes or prefixes to the names of awardees. Otherwise, they should forfeit the awards. These National Awards were instituted in 1954. The Janata Party government headed by Morarji Desai discontinued them in 1977. But they were again revived in 1980 by the Indira Gandhi government.  RIGHT TO FREEDOM 1. Protection of Six Rights Article 19 guarantees to all citizens the six rights. These are: (i) Right to freedom of speech and expression. (ii) Right to assemble peaceably and without arms. (iii) Right to form associations or unions or co-operative societies.10a (iv) Right to move freely throughout the territory of India. (v) Right to reside and settle in any part of the territory of India. (vi) Right to practice any profession or to carry on any occupation, trade or business. Originally, Article 19 contained seven rights. But, the right to acquire, hold and dispose of property was deleted by the 44th Amendment Act of 1978. These six rights are protected against only state action and not private individuals. Moreover, these rights are available only to the citizens and to shareholders of a company but not to foreigners or legal persons like companies or corporations, etc. The State can impose ‘reasonable’ restrictions on the enjoyment of these six rights only on the grounds mentioned in the Article 19 itself and not on any other grounds. Freedom of Speech and Expression It implies that every citizen has the right to express his views, opinions, belief and convictions freely by word of mouth, writing, printing, picturing or in any other manner. The Supreme Court held that the freedom of speech and expression includes the following: (a) Right to propagate one’s views as well as views of others. (b) Freedom of the press. (c) Freedom of commercial advertisements. (d) Right against tapping of telephonic conversation. (e) Right to telecast, that is, government has no monopoly on electronic media. (f) Right against bundh called by a political party or organisation.  (g) Right to know about government activities. (h) Freedom of silence. (i) Right against imposition of pre-censorship on a newspaper. (j) Right to demonstration or picketing but not right to strike. The State can impose reasonable restrictions on the exercise of the freedom of speech and expression on the grounds of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to an offence. Freedom of Assembly Every citizen has the right to assemble peaceably and without arms. It includes the right to hold public meetings, demonstrations and take out processions. This freedom can be exercised only on public land and the assembly must be peaceful and unarmed. This provision does not protect violent, disorderly, riotous assemblies, or one that causes breach of public peace or one that involves arms. This right does not include the right to strike. The State can impose reasonable restrictions on the exercise of right of assembly on two grounds, namely, sovereignty and integrity of India and public order including the maintenance of traffic in the area concerned. Under Section 144 of Criminal Procedure Code (1973), a magistrate can restrain an assembly, meeting or procession if there is a risk of obstruction, annoyance or danger to human life, health or safety or a disturbance of the public tranquillity or a riot or any affray. Under Section 141 of the Indian Penal Code, as assembly of five or more persons becomes unlawful if the object is (a) to resist the execution of any law or legal process; (b) to forcibly occupy the property of some person; (c) to commit any mischief or criminal trespass; (d) to force some person to do an illegal act; and (e) to threaten the government or its officials on exercising lawful powers. Freedom of Association All citizens have the right to form associations or unions or co-operative societies10b. It includes the right to form political parties, companies, partnership firms, societies, clubs, organisations, trade unions or any body of persons. It not only includes the right to start an association or union but also to continue with the association or union as such. Further, it covers the negative right of not to form or join an association or union. Reasonable restrictions can be imposed on the exercise of this right by the State on the grounds of sovereignty and integrity of India, public order and morality. Subject to these restrictions, the citizens have complete liberty to form associations or unions for pursuing lawful objectives and purposes. However, the right to obtain recognition of the association is not a fundamental right. The Supreme Court held that the trade unions have no guaranteed right to effective bargaining or right to strike or right to declare a lock-out. The right to strike can be controlled by an appropriate industrial law. Freedom of Movement This freedom entitles every citizen to move freely throughout the territory of the country. He can move freely from one state to another or from one place to another within a state. This right underline the idea that India is one unit so far as the citizens are concerned. Thus, the purpose is to promote national feeling and not parochialism. The grounds of imposing reasonable restrictions on this freedom are two, namely, the interests of general public and the protection of interests of any scheduled tribe. The entry of outsiders in tribal areas is restricted to protect the distinctive culture, language, customs and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation. The Supreme Court held that the freedom of movement of prostitutes can be restricted on the ground of public health and in the interest of public morals. The Bombay High Court validated the restrictions on the movement of persons affected by AIDS. The freedom of movement has two dimensions, viz, internal (right to move inside the country) and external (right to move out of the country and right to come back to the country). Article 19 protects only the first dimension. The second dimension is dealt by Article 21 (right to life and personal liberty). Freedom of Residence Every citizen has the right to reside and settle in any part of the territory of the country. This right has two parts: (a) the right to reside in any part of the country, which means to stay at any place temporarily, and (b) the right to settle in any part of the country, which means to set up a home or domicile at any place permanently. This right is intended to remove internal barriers within the country or between any of its parts. This promotes nationalism and avoids narrow mindedness. The State can impose reasonable restrictions on the exercise of this right on two grounds, namely, the interest of general public and the protection of interests of any scheduled tribes. The right of outsiders to reside and settle in tribal areas is restricted to protect the distinctive culture, language, customs and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation. In many parts of the country, the tribals have been permitted to regulate their property rights in accordance with their customary rules and laws. The Supreme Court held that certain areas can be banned for certain kinds of persons like prostitutes and habitual offenders. From the above, it is clear that the right to residence and the right to movement are overlapping to some extent. Both are complementary to each other. Freedom of Profession, etc. All citizens are given the right to practise any profession or to carry on any occupation, trade or business. This right is very wide as it covers all the means of earning one’s livelihood. The State can impose reasonable restrictions on the exercise of this right in the interest of the general public. Further, the State is empowered to: (a) prescribe professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business; and (b) carry on by itself any trade, business, industry or service whether to the exclusion (complete or partial) of citizens or otherwise. Thus, no objection can be made when the State carries on a trade, business, industry or service either as a monopoly (complete or partial) to the exclusion of citizens (all or some only) or in competition with any citizen. The State is not required to justify its monopoly. This right does not include the right to carry on a profession or business or trade or occupation that is immoral (trafficking in women or children) or dangerous (harmful drugs or explosives, etc,). The State can absolutely prohibit these or regulate them through licencing. 2. Protection in Respect of Conviction for Offences Article 20 grants protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal person like a company or a corporation. It contains three provisions in that direction: (a) No ex-post-facto law: No person shall be (i) convicted of any offence except for violation of a law in force at the time of the commission of the act, nor (ii) subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the act. (b) No double jeopardy: No person shall be prosecuted and punished for the same offence more than once. (c) No self-incrimination: No person accused of any offence shall be compelled to be a witness against himself. An ex-post-facto law is one that imposes penalties retrospectively (retroactively), that is, upon acts already done or which increases the penalties for such acts. The enactment of such a law is prohibited by the first provision of Article 20. However, this limitation is imposed only on criminal laws and not on civil laws or tax laws. In other words, a civil liability or a tax can be imposed retrospectively. Further, this provision prohibits only conviction or sentence under an ex-post-facto criminal law and not the trial thereof. Finally, the protection (immunity) under this provision cannot be claimed in case of preventive detention or demanding security from a person. The protection against double jeopardy is available only in proceedings before a court of law or a judicial tribunal. In other words, it is not available in proceedings before departmental or administrative authorities as they are not of judicial nature. The protection against self-incrimination extends to both oral evidence and documentary evidence. However, it does not extend to (i) compulsory production of material objects, (ii) compulsion to give thumb impression, specimen signature, blood specimens, and (iii) compulsory exhibition of the body. Further, it extends only to criminal proceedings and not to civil proceedings or proceedings which are not of criminal nature. 3. Protection of Life and Personal Liberty Article 21 declares that no person shall be deprived of his life or personal liberty except according to procedure established by law. This right is available to both citizens and non-citizens. In the famous Gopalan case11 (1950), the Supreme Court has taken a narrow interpretation of the Article 21. It held that the protection under Article 21 is available only against arbitrary executive action and not from arbitrary legislative action. This means that the State can deprive the right to life and personal liberty of a person based on a law. This is because of the expression ‘procedure established by law’ in Article 21, which is different from the expression ‘due process of law’ contained in the American Constitution. Hence, the validity of a law that has prescribed a procedure cannot be questioned on the ground that the law is unreasonable, unfair or unjust. Secondly, the Supreme Court held that the ‘personal liberty’ means only liberty relating to the person or body of the individual. But, in Menaka case12 (1978), the Supreme Court overruled its judgement in the Gopalan case by taking a wider interpretation of the Article 21. Therefore, it ruled that the right to life and personal liberty of a person can be deprived by a law provided the procedure prescribed by that law is reasonable, fair and just. In other words, it has introduced the American expression ‘due process of law’. In effect, the protection under Article 21 should be available not only against arbitrary executive action but also against arbitrary legislative action. Further, the court held that the ‘right to life’ as embodied in Article 21 is not merely confined to animal existence or survival but it includes within its ambit the right to live with human dignity and all those aspects of life which go to make a man’s life meaningful, complete and worth living. It also ruled that the expression ‘Personal Liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights that go to constitute the personal liberties of a man. The Supreme Court has reaffirmed its judgement in the Menaka case in the subsequent cases. It has declared the following rights as part of Article 21: (1) Right to live with human dignity. (2) Right to decent environment including pollution free water and air and protection against hazardous industries. (3) Right to livelihood. (4) Right to privacy. (5) Right to shelter.  (6) Right to health. (7) Right to free education up to 14 years of age. (8) Right to free legal aid. (9) Right against solitary confinement. (10) Right to speedy trial. (11) Right against handcuffing. (12) Right against inhuman treatment. (13) Right against delayed execution. (14) Right to travel abroad. (15) Right against bonded labour. (16) Right against custodial harassment. (17) Right to emergency medical aid. (18) Right to timely medical treatment in government hospital. (19) Right not to be driven out of a state. (20) Right to fair trial. (21) Right of prisoner to have necessities of life. (22) Right of women to be treated with decency and dignity. (23) Right against public hanging. (24) Right to road in hilly areas. (25) Right to information. (26) Right to reputation. (27) Right of appeal from a judgement of conviction (28) Right to family pension (29) Right to social and economic justice and empowerment (30) Right against bar fetters (31) Right to appropriate life insurance policy (32) Right to sleep (33) Right to freedom from noise pollution (34) Right to sustainable development (35) Right to opportunity. 4. Right to Education Article 21 A declares that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may determine. Thus, this provision makes only elementary education a Fundamental Right and not higher or professional education.  This provision was added by the 86th Constitutional Amendment Act of 2002. This amendment is a major milestone in the country’s aim to achieve ‘Education for All’. The government described this step as ‘the dawn of the second revolution in the chapter of citizens’ rights’. Even before this amendment, the Constitution contained a provision for free and compulsory education for children under Article 45 in Part IV. However, being a directive principle, it was not enforceable by the courts. Now, there is scope for judicial intervention in this regard. This amendment changed the subject matter of Article 45 in directive principles. It now reads–‘The state shall endeavour to provide early childhood care and education for all children until they complete the age of six years.’ It also added a new fundamental duty under Article 51A that reads–‘It shall be the duty of every citizen of India to provide opportunities for education to his child or ward between the age of six and fourteen years’. In 1993 itself, the Supreme Court recognised a Fundamental Right to primary education in the right to life under Article 21. It held that every child or citizen of this country has a right to free education until he completes the age of 14 years. Thereafter, his right to education is subject to the limits of economic capacity and development of the state. In this judgement, the Court overruled its earlier judgement (1992) which declared that there was a fundamental right to education up to any level including professional education like medicine and engineering. In pursuance of Article 21A, the Parliament enacted the Right of Children to Free and Compulsory Education (RTE) Act, 2009. This Act seeks to provide that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards. This legislation is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all.12a 5. Protection Against Arrest and Detention Article 22 grants protection to persons who are arrested or detained. Detention is of two types, namely, punitive and preventive. Punitive detention is to punish a person for an offence committed by him after trial and conviction in a court. Preventive detention, on the other hand, means detention of a person without trial and conviction by a court. Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future. Thus, preventive detention is only a precautionary measure and based on suspicion. The Article 22 has two parts–the first part deals with the cases of ordinary law and the second part deals with the cases of preventive detention law. (a) The first part of Article 22 confers the following rights on a person who is arrested or detained under an ordinary law: (i) Right to be informed of the grounds of arrest. (ii) Right to consult and be defended by a legal practitioner. (iii) Right to be produced before a magistrate within 24 hours, including the journey time. (iv) Right to be released after 24 hours unless the magistrate authorises further detention. These safeguards are not available to an enemy alien or a person arrested or detained under a preventive detention law. The Supreme Court also ruled that the arrest and detention in the first part of Article 22 do not cover arrest under the orders of a court, civil arrest, arrest on failure to pay the income tax, and deportation of an alien. They apply only to an act of a criminal or quasi-criminal nature or some activity prejudicial to public interest. (b) The second part of Article 22 grants protection to persons who are arrested or detained under a preventive detention law. This protection is available to both citizens as well as aliens and includes the following: (i) The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention. The board is to consist of judges of a high court. (ii) The grounds of detention should be communicated to the detenu. However, the facts considered to be against the public interest need not be disclosed. (iii) The detenu should be afforded an opportunity to make a representation against the detention order.  Article 22 also authorises the Parliament to prescribe (a) the circumstances and the classes of cases in which a person can be detained for more than three months under a preventive detention law without obtaining the opinion of an advisory board; (b) the maximum period for which a person can be detained in any classes of cases under a preventive detention law; and (c) the procedure to be followed by an advisory board in an inquiry. The 44th Amendment Act of 1978 has reduced the period of detention without obtaining the opinion of an advisory board from three to two months. However, this provision has not yet been brought into force, hence, the original period of three months still continues. The Constitution has divided the legislative power with regard to preventive detention between the Parliament and the state legislatures. The Parliament has exclusive authority to make a law of preventive detention for reasons connected with defence, foreign affairs and the security of India. Both the Parliament as well as the state legislatures can concurrently make a law of preventive detention for reasons connected with the security of a state, the maintenance of public order and the maintenance of supplies and services essential to the community. The preventive detention laws made by the Parliament are: (a) Preventive Detention Act, 1950. Expired in 1969. (b) Maintenance of Internal Security Act (MISA), 1971. Repealed in 1978. (c) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974. (d) National Security Act (NASA), 1980. (e) Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act (PBMSECA), 1980. (f) Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985. Repealed in 1995. (g) Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988. (h) Prevention of Terrorism Act (POTA), 2002. Repealed in 2004. (i) Unlawful Activities (Prevention) Act (UAPA), 1967, as amended in 2004, 2008, 2012 and 2019. It is unfortunate to know that no democratic country in the world has made preventive detention as an integral part of the Constitution as has been done in India. It is unknown in USA. It was resorted to in Britain only during first and second world war time. In India, preventive detention existed even during the British rule. For example, the Bengal State Prisoners Regulation of 1818 and the Defence of India Act of 1939 provided for preventive detention.  RIGHT AGAINST EXPLOITATION 1. Prohibition of Traffic in Human Beings and Forced Labour Article 23 prohibits traffic in human beings, begar (forced labour) and other similar forms of forced labour. Any contravention of this provision shall be an offence punishable in accordance with law. This right is available to both citizens and non-citizens. It protects the individual not only against the State but also against private persons. The expression ‘traffic in human beings’ include (a) selling and buying of men, women and children like goods; (b) immoral traffic in women and children, including prostitution; (c) devadasis; and (d) slavery. To punish these acts, the Parliament has made the Immoral Traffic (Prevention) Act13 , 1956. The term ‘begar ’ means compulsory work without remuneration. It was a peculiar Indian system under which the local zamin-dars sometimes used to force their tenants to render services without any payment. In addition to begar, the Article 23 prohibits other ‘similar forms of forced labour’ like ‘bonded labour’. The term ‘forced labour’ means compelling a person to work against his will. The word ‘force’ includes not only physical or legal force but also force arising from the compulsion of economic circumstances, that is, working for less than the minimum wage. In this regard, the Bonded Labour System (Abolition) Act, 1976; the Minimum Wages Act, 1948; the Contract Labour Act, 1970 and the Equal Remuneration Act, 1976 were made. Article 23 also provides for an exception to this provision. It permits the State to impose compulsory service for public purposes, as for example, military service or social service, for which it is not bound to pay. However, in imposing such service, the State is not permitted to make any discrimination on grounds only of religion, race, caste or class. 2. Prohibition of Employment of Children in Factories, etc. Article 24 prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous activities like construction work or railway. But it does not prohibit their employment in any harmless or innocent work. The Child Labour (Prohibition and Regulation) Act, 1986, is the most important law in this direction. In addition, the Employment of Children Act, 1938; the Factories Act, 1948; the Mines Act, 1952; the Merchant Shipping Act, 1958; the Plantation Labour Act, 1951; the Motor Transport Workers Act, 1951; Apprentices Act, 1961; the Bidi and Cigar Workers Act, 1966; and other similar acts prohibit the employment of children below certain age. In 1996, the Supreme Court directed the establishment of Child Labour Rehabilitation Welfare Fund in which the offending employer should deposit a fine of ₹20,000 for each child employed by him. It also issued directions for the improvement of education, health and nutrition of children. The Commissions for Protection of Child Rights Act, 2005 was enacted to provide for the establishment of a National Commission and State Commissions for Protection of Child Rights and Children’s Courts for providing speedy trial of offences against children or of violation of child rights. In 2006, the government banned the employment of children as domestic servants or workers in business establishments like hotels, dhabas, restaurants, shops, factories, resorts, spas, tea-shops and so on. It warned that anyone employing children below 14 years of age would be liable for prosecution and penal action. The Child Labour (Prohibition and Regulation) Amendment Act, 2016, amended the Child Labour (Prohibition and Regulation) Act, 1986. It has renamed the Principal Act as the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986.  RIGHT TO FREEDOM OF RELIGION 1. Freedom of Conscience and Free Profession, Practice and Propagation of Religion Article 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. The implications of these are: (a) Freedom of conscience: Inner freedom of an individual to mould his relation with God or Creatures in whatever way he desires. (b) Right to profess: Declaration of one’s religious beliefs and faith openly and freely. (c) Right to practice: Performance of religious worship, rituals, ceremonies and exhibition of beliefs and ideas. (d) Right to propagate: Transmission and dissemination of one’s religious beliefs to others or exposition of the tenets of one’s religion. But, it does not include a right to convert another person to one’s own religion. Forcible conversions impinge on the ‘freedom of conscience’ guaranteed to all the persons alike. From the above, it is clear that Article 25 covers not only religious beliefs (doctrines) but also religious practices (rituals). Moreover, these rights are available to all persons–citizens as well as non-citizens. However, these rights are subject to public order, morality, health and other provisions relating to fundamental rights. Further, the State is permitted to: (a) regulate or restrict any economic, financial, political or other secular activity associated with religious practice; and (b) provide for social welfare and reform or throw open Hindu religious institutions of a public character to all classes and sections of Hindus. Article 25 also contains two explanations: one, wearing and carrying of kirpans is to be included in the profession of the Sikh religion; and two, the Hindus, in this context, include Sikhs, Jains and Buddhists.14 2. Freedom to Manage Religious Affairs According to Article 26, every religious denomination or any of its section shall have the following rights: (a) Right to establish and maintain institutions for religious and charitable purposes; (b) Right to manage its own affairs in matters of religion; (c) Right to own and acquire movable and immovable property; and (d) Right to administer such property in accordance with law. Article 25 guarantees rights of individuals, while Article 26 guarantees rights of religious denominations or their sections. In other words, Article 26 protects collective freedom of religion. Like the rights under Article 25, the rights under Article 26 are also subject to public order, morality and health but not subject to other provisions relating to the Fundamental Rights. The Supreme Court held that a religious denomination must satisfy three conditions: (a) It should be a collection of individuals who have a system of beliefs (doctrines) which they regard as conducive to their spiritual well-being; (b) It should have a common organisation; and (c) It should be designated by a distinctive name. Under the above criteria, the Supreme Court held that the ‘Ramakrishna Mission’ and ‘Ananda Marga’ are religious denominations within the Hindu religion. It also held that Aurobindo Society is not a religious denomination. 3. Freedom from Taxation for Promotion of a Religion Article 27 lays down that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination. In other words, the State should not spend the public money collected by way of tax for the promotion or maintenance of any particular religion. This provision prohibits the State from favouring, patronising and supporting one religion over the other. This means that the taxes can be used for the promotion or maintenance of all religions. This provision prohibits only levy of a tax and not a fee. This is because the purpose of a fee is to control secular administration of religious institutions and not to promote or maintain religion. Thus, a fee can be levied on pilgrims to provide them some special service or safety measures. Similarly, a fee can be levied on religious endowments for meeting the regulation expenditure. 4. Freedom from Attending Religious Instruction Under Article 28, no religious instruction shall be provided in any educational institution wholly maintained out of State funds. However, this provision shall not apply to an educational institution administered by the State but established under any endowment or trust, requiring imparting of religious instruction in such institution. Further, no person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to attend any religious instruction or worship in that institution without his consent. In case of a minor, the consent of his guardian is needed. Thus, Article 28 distinguishes between four types of educational institutions: (a) Institutions wholly maintained by the State. (b) Institutions administered by the State but established under any endowment or trust. (c) Institutions recognised by the State. (d) Institutions receiving aid from the State. In (a), religious instruction is completely prohibited while in (b), religious instruction is permitted. In (c) and (d), religious instruction is permitted on a voluntary basis.  CULTURAL AND EDUCATIONAL RIGHTS 1. Protection of Interests of Minorities Article 29 provides that any section of the citizens residing in any part of India having a distinct language, script or culture of its own, shall have the right to conserve the same. Further, no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, or language. The first provision protects the right of a group while the second provision guarantees the right of a citizen as an individual irrespective of the community to which he belongs. Article 29 grants protection to both religious minorities as well as linguistic minorities. However, the Supreme Court held that the scope of this article is not necessarily restricted to minorities only, as it is commonly assumed to be. This is because of the use of words ‘section of citizens’ in the Article that include minorities as well as majority. The Supreme Court also held that the right to conserve the language includes the right to agitate for the protection of the language. Hence, the political speeches or promises made for the conservation of the language of a section of the citizens does not amount to corrupt practice under the Representation of the People Act, 1951. 2. Right of Minorities to Establish and Administer Educational Institutions Article 30 grants the following rights to minorities, whether religious or linguistic: (a) All minorities shall have the right to establish and administer educational institutions of their choice. (b) The compensation amount fixed by the State for the compulsory acquisition of any property of a minority educational institution shall not restrict or abrogate the right guaranteed to them. This provision was added by the 44th Amendment Act of 1978 to protect the right of minorities in this regard. The Act deleted the right to property as a Fundamental Right (Article 31).  (c) In granting aid, the State shall not discriminate against any educational institution managed by a minority. Thus, the protection under Article 30 is confined only to minorities (religious or linguistic) and does not extend to any section of citizens (as under Article 29). However, the term ‘minority’ has not been defined anywhere in the Constitution. The right under Article 30 also includes the right of a minority to impart education to its children in its own language. Minority educational institutions are of three types: (a) institutions that seek recognition as well as aid from the State; (b) institutions that seek only recognition from the State and not aid; and (c) institutions that neither seek recognition nor aid from the State. The institutions of first and second type are subject to the regulatory power of the state with regard to syllabus prescription, academic standards, discipline, sanitation, employment of teaching staff and so on. The institutions of third type are free to administer their affairs but subject to operation of general laws like contract law, labour law, industrial law, tax law, economic regulations, and so on. In a judgement delivered in the Secretary of Malankara Syrian Catholic College case14a (2007), the Supreme Court has summarized the general principles relating to establishment and administration of minority educational institutions in the following way : 1. The right of minorities to establish and administer educational institutions of their choice comprises the following rights : (i) To choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution; (ii) To appoint teaching staff (teachers/ lecturers and head- masters/princi-pals) as also non-teaching staff; and to take action if there is dereliction of duty on the part of any of its employees; (iii) To admit eligible students of their choice and to set up a reasonable fee structure; and (iv) To use its properties and assets for the benefit of the institution. 2. The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-a-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation etc., applicable to all, will equally apply to minority institutions also. 3. The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1). 4. Subject to the eligibility conditions/ qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection. 5. Extention of aid by the State, does not alter the nature and character of the minority educational institutions. The conditions can be imposed by the State to ensure proper utilization of the aid, without however diluting or abridging the right under Article 30(1).  RIGHT TO CONSTITUTIONAL REMEDIES A mere declaration of fundamental rights in the Constitution is meaningless, useless and worthless without providing an effective machinery for their enforcement, if and when they are violated. Hence, Article 32 confers the right to remedies for the enforcement of the fundamental rights of an aggrieved citizen. In other words, the right to get the Fundamental Rights protected is in itself a fundamental right. This makes the fundamental rights real. That is why Dr. Ambedkar called Article 32 as the most important article of the Constitution–‘an Article without which this constitution would be a nullity. It is the very soul of the Constitution and the very heart of it’. The Supreme Court has ruled that Article 32 is a basic feature of the Constitution. Hence, it cannot be abridged or taken away even by way of an amendment to the Constitution. It contains the following four provisions: (a) The right to move the Supreme Court by appropriate proceedings for the enforcement of the Fundamental Rights is guaranteed. (b) The Supreme Court shall have power to issue directions or orders or writs for the enforcement of any of the fundamental rights. The writs issued may include habeas corpus, mandamus, prohibition, certiorari and quo-warranto. (c) Parliament can empower any other court to issue directions, orders and writs of all kinds. However, this can be done without prejudice to the above powers conferred on the Supreme Court. Any other court here does not include high courts because Article 226 has already conferred these powers on the high courts. (d) The right to move the Supreme Court shall not be suspended except as otherwise provided for by the Constitution. Thus the Constitution provides that the President can suspend the right to move any court for the enforcement of the fundamental rights during a national emergency (Article 359). It is thus clear that the Supreme Court has been constituted as the defender and guarantor of the fundamental rights of the citizens. It has been vested with the ‘original’ and ‘wide’ powers for that purpose. Original, because an aggrieved citizen can directly go to the Supreme Court, not necessarily by way of appeal. Wide, because its power is not restricted to issuing of orders or directions but also writs of all kinds. The purpose of Article 32 is to provide a guaranteed, effective, expeditious, inexpensive and summary remedy for the protection of the fundamental rights. Only the Fundamental Rights guaranteed by the Constitution can be enforced under Article 32 and not any other right like non-fundamental constitutional rights, statutory rights, customary rights and so on. The violation of a fundamental right is the sine qua non for the exercise of the right conferred by Article 32. In other words, the Supreme Court, under Article 32, cannot determine a question that does not involve Fundamental Rights. Article 32 cannot be invoked simply to determine the constitutionality of an executive order or a legislation unless it directly infringes any of the fundamental rights. In case of the enforcement of Fundamental Rights, the jurisdiction of the Supreme Court is original but not exclusive. It is concurrent with the jurisdiction of the high court under Article 226. It vests original powers in the high court to issue directions, orders and writs of all kinds for the enforcement of the Fundamental Rights. It means when the Fundamental Rights of a citizen are violated, the aggrieved party has the option of moving either the high court or the Supreme Court directly. Since the right guaranteed by Article 32 (ie, the right to move the Supreme Court where a fundamental right is infringed) is in itself a fundamental right, the availability of alternate remedy is no bar to relief under Article 32. However, the Supreme Court has ruled that where relief through high court is available under Article 226, the aggrieved party should first move the high court.  WRITS–TYPES AND SCOPE The Supreme Court (under Article 32) and the high courts (under Article 226) can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo-warranto. Further, the Parliament (under Article 32) can empower any other court to issue these writs. Since no such provision has been made so far, only the Supreme Court and the high courts can issue the writs and not any other court. Before 1950, only the High Courts of Calcutta, Bombay and Madras had the power to issue the writs. Article 226 now empowers all the high courts to issue the writs. These writs are borrowed from English law where they are known as ‘prerogative writs’. They are so called in England as they were issued in the exercise of the prerogative of the King who was, and is still, described as the ‘fountain of justice’. Later, the high court started issuing these writs as extraordinary remedies to uphold the rights and liberties of the British people. The writ jurisdiction of the Supreme Court differs from that of a high court in three respects: 1. The Supreme Court can issue writs only for the enforcement of fundamental rights whereas a high court can issue writs not only for the enforcement of Fundamental Rights but also for any other purpose. The expression ‘for any other purpose’ refers to the enforcement of an ordinary legal right. Thus, the writ jurisdiction of the Supreme Court, in this respect, is narrower than that of high court. 2. The Supreme Court can issue writs against a person or government throughout the territory of India whereas a high court can issue writs against a person residing or against a government or authority located within its territorial jurisdiction only or outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction.15 Thus, the territorial jurisdiction of the Supreme Court for the purpose of issuing writs is wider than that of a high court. 3. A remedy under Article 32 is in itself a Fundamental Right and hence, the Supreme Court may not refuse to exercise its writ jurisdiction. On the other hand, a remedy under Article 226 is discretionary and hence, a high court may refuse to exercise its writ jurisdiction. Article 32 does not merely confer power on the Supreme  Court as Article 226 does on a high court to issue writs for the enforcement of fundamental rights or other rights as part of its general jurisdiction. The Supreme Court is thus constituted as a defender and guarantor of the fundamental rights. Now, we will proceed to understand the meaning and scope of different kinds of writs mentioned in Articles 32 and 226 of the Constitution: Habeas Corpus It is a Latin term which literally means ‘to have the body of’. It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. The court then examines the cause and legality of detention. It would set the detained person free, if the detention is found to be illegal. Thus, this writ is a bulwark of individual liberty against arbitrary detention. The writ of habeas corpus can be issued against both public authorities as well as private individuals. The writ, on the other hand, is not issued where the (a) detention is lawful, (b) the proceeding is for contempt of a legislature or a court, (c) detention is by a competent court, and (d) detention is outside the jurisdiction of the court. Mandamus It literally means ‘we command’. It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform. It can also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose. The writ of mandamus cannot be issued (a) against a private individual or body; (b) to enforce departmental instruction that does not possess statutory force; (c) when the duty is discretionary and not mandatory; (d) to enforce a contractual obligation; (e) against the president of India or the state governors; and (f) against the chief justice of a high court acting in judicial capacity. Prohibition Literally, it means ‘to forbid’. It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. Thus, unlike mandamus that directs activity, the prohibition directs inactivity. The writ of prohibition can be issued only against judicial and quasi- judicial authorities. It is not available against administrative authorities, legislative bodies, and private individuals or bodies. Certiorari In the literal sense, it means ‘to be certified’ or ‘to be informed’. It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case. It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law. Thus, unlike prohibition, which is only preventive, certiorari is both preventive as well as curative. Previously, the writ of certiorari could be issued only against judicial and quasi-judicial authorities and not against administrative authorities. However, in 1991, the Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting rights of individuals. Like prohibition, certiorari is also not available against legislative bodies and private individuals or bodies. Quo-Warranto In the literal sense, it means ‘by what authority or warrant’. It is issued by the court to enquire into the legality of claim of a person to a public office. Hence, it prevents illegal usurpation of public office by a person. The writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution. It cannot be issued in cases of ministerial office or private office. Unlike the other four writs, this can be sought by any interested person and not necessarily by the aggrieved person.