CIVIL AND POLITICAL RIGHTS

“When the perfect comes, the imperfect will pass away”
Bible, 1 Corinthians Chapter 13 Verse 10

CIVIL AND POLITICAL RIGHTS

1. What is a right ?. Right is an entitlement to something, whether to concepts like justice and due process or to ownership of property or some interest in property, real or personal. These rights include various freedoms, protection against interference with enjoyment of life and property.
2. Right is the co-relative of a duty, for whenever one has a right due to him, some other must owe him a duty. A right without corresponding duty or obligation is meaningless and cannot be called a legal right. As for example, a duty is cast upon a shopkeeper or a businessman to obtain a trade or Gumasta license from the concerned municipal corporation under the Bombay Shops and Establishment Act, to run his shop or his business establishment. Secondly, the right must be recognized under a law in force for the purpose of its enforcement before a court of law or justice. Thirdly, there must be some legal injury caused to such a right recognized by and enforceable under the law for the purpose of securing some compensation for the breach. This attribute of such a right is called ‘injuria sine damnum’. Often we find, damages are caused to the right of a person without any legal injury being caused to him and thereby disentitling him, in law, to get any compensation or damages. This aspect of the right, in common law, is called ‘damnum sine injuria’.
3. Rights are of different types. Rights are perfect (fixed or determinative) and imperfect (vague or indeterminate). As for example, a poor man asks relief from those from whom he has reason to expect it, the right which supports his petition, is an imperfect one, because the relief which he expects is a vague and indeterminate one. Sometimes, right signifies a law, as for example, natural right to keep our promises or that it forbids crime. Right is sometimes determined by the quality of our actions by just one (rectitude). Right can be a quality in a person by which he can do certain actions or process certain things which belong to him by virtue of some title. Rights are also absolute and qualified. Rights are also divided into legal and equitable rights. The former are those where the party has the legal title to a thing, and in that case, his remedy for an infringement of it, is by an action in a court of law. Although the person holding the legal title may have no actual interest, but only holds as trustee, the suit must be in his name, and not in general, in that of the cestui que trust. The latter or equitable rights are those which may be enforced in a court of equity by the cestui que trust. Equity courts in India have been abolished.
4. Rights might with propriety be also divided into natural and civil rights, but all the rights which men have received from nature have been modified and acquired anew from the civil law point of view, it is more proper when considering their object to divide them into civil and political rights.
5. What is a civic or civil right ?. Civil right is that belong to every citizen of the State and is not connected with the establishment, support or management of an organization or administration of government. These consist in the power of acquiring and enjoying property, of exercising the paternal and marital powers and the like. It will be observed that everyone, unless deprived of them by a decree of a civil court, is in the enjoyment of his civil rights, which is not the case with political rights, for an alien, for example, has no political rights, although he is in the full enjoyment of his civil rights.
6. Civil rights include the rights to property, marriage, protection by law, freedom to contract, trial by civil court and the like. These rights are capable of being enforced or redressed in an action in a civil court.
7. Civil rights are divided into absolute rights and relative rights. The absolute rights of mankind may be reduced to three principal or primary articles viz. (i) the right of personal security which consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation, (ii) the right of personal liberty which consists in the power of locomotion of changing situation, or removing one’s person to whatsoever place one’s inclination may direct, without any restraint, unless by due course of law; and (3) the right of property which consists in the free use, enjoyment and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.
8. The relative civil rights are public or private, the first are those which subsist between the people and the government, as the right of protection on the part of the people, and the right of allegiance which is due by the people to the government; the second are the reciprocal rights of husband and wife, parent and child, guardian and ward, and master and servant.
9. Civil rights enjoyed by citizens, such as, voting and access to the courts are the natural (constitutional) rights accepted by the civilized societies, human rights to protect people through out the world from terror, torture, barbaric practices, and deprivation of civil rights, and profiting from the labour of people, and such american Constitution guarantees as the right to freedoms of speech, press, religion, assembly and petition.
10. Political rights entail the power to participate directly or indirectly in the establishment and administration of government, such as, the right of citizenship, the right to vote, the right of being elected, and the right to hold public office, etc. are the political rights which even the humblest of the citizens possesses. Political rights are fixed by the Constitution.
11. In Constitutional law, rights are classified as natural, civil and political. Natural rights are those that are believed to grow out of the nature of the individual human being and depend on her/his personality, such as the rights to life, liberty, privacy and the pursuit of happiness.
12. Civil and political rights are conferred on citizens of Bharat (India) under the Indian Constitution. Citizen is a person who enjoys full civil and political rights. A person has only one or single citizenship in India irrespective of the State within India, to which he belongs. Whereas, in the United States of America, a person has two citizenships viz. (i) Citizenship of America (Federal Citizenship) and (2) Citizenship of the State in America, to which he belongs, namely, Citizenship of State of California, New York, etc. Being a juristic person and not being a living or natural person, a company or corporation is not a citizen of India. Thus, an incorporated body or a limited company being a person cannot therefore claim or enjoy the civil and political rights as a citizen of India can.
13. Civil and political rights are embodied in part III of the Constitution of India (Articles 12 to 35). The State under Article 12 is shouldered with the responsibility (i) to protect the rights of individuals (ii) to maintain peace and (iii) to ensure social security. The State protects an individual whose legal right is infringed by another. Sometimes, the State itself, by passing a legislation/G. O./Ordinance may infringe (encroach upon) the fundamental or basic right of an individual. Such person can approach the court for enforcement of his/her fundamental right by filing a Writ Petition before High Court under Article 226 or in the Supreme Court under Article 32 of the Constitution of India.
14. The State includes (1) The Central / Union Government and Parliament, including the Executive Organs and other Departments, (2) The State Governments and the State Legislatures. The State Government includes the Executive Organs and other Departments viz. the Governments, the Chief Ministers, the District Collectors and other Government Departments. The State Legislature, the law making body which includes both Hhouses viz. the Legislative Assembly and Legislative Council or only one House viz. Legislative Assembly (as in the case of Andhra Pradesh), (3) All Local Authorities within the Territory of India. The term ‘Authority’ means “a person or body exercising power to command”. For the purpose of Article 12, it means “the power to make laws, orders, regulations, bye-laws, notifications, etc., which have the force of law and power to enforce those laws. ‘Local Authority’ refers to unit of Local self government, such as, Municipal Committee, District Board, Panchayats, Body of Port Commissioners, Improvement Trust and Mining Settlement Boards, or other Authority legally entitled to, or entrusted by the Government with, the control or management of a Municipal or Local Fund, (4) All Local and Other Authorities under the control of the Government of India. The expression “Other Authorities” has neither been defined in the Constitution nor in any statute. It is left to the discretion of Court to interpret the expression so as to determine the scope of the fundamental right. For example, it was held that the University of Madras created by the Madras University Act, 1923, though State aided, was a body corporate and was not maintained by the State and hence, did not come within the scope of ‘State’. The Court viewed or opined that the words ‘Local or other Authorities’ must be construed ‘ejusdem generis’. According to the rule of ejusdem generis, the only Authorities exercising governmental or sovereign functions would come within the meaning of ‘other Authorities’. However, the Supreme Court has held that the Sales Tax Officer constituted under the Sales Tax Act for assessing the tax would come within the meaning of ‘other Authorities’. Statutory Bodies set up under Special statues such as, ONGC, LIC, IFC, the International Airport Authority of India (IAA), Electricity Board created by Statute or Constitution on whom powers are conferred by law are the ‘other Authorities’. Similarly an Agency or Instrumentality of State, though not a Government Company established by a statute, but registered under the Indian Companies Act, 1956 comes within the meaning of ‘other Authorities’, and (5) Judiciary while exercising its rule making power is held to be within the definition of ‘State’. A Judge acting as a Judge is a subject to the Writ Jurisdiction of the Supreme Court of India. It is held that the Court cannot pass an Order or issue a Direction which would be violative of fundamental rights.
15. Fundamental rights are rights without which a human being cannot exist/survive in a dignified manner in a civilized Society. In America, they are called ‘Bill of Rights’. They are deemed essential to protect the rights and liberties of the people. Fundamental rights are known as ‘Basic Rights’ or ‘Justiciable Rights’. They are also called ‘Individual Rights’ or ‘Negative Rights’ and impose negative obligation on the State not to encroach upon individual liberty.
16. The various fundamental Rights are as follows :-
(A) RIGHT TO EQUALITY (ARTICLES 14 TO 18).
(i) Equality before law and equal protection of laws, (Art. 14)
In simple words, all are equal before law and no one is above the law. According to Art. 14, Law should treat equally on all individuals without any discrimination, right from the Prime Minister on the top upto the constable at the bottom. However, in actual parlance, certain limitations and exceptions are carved out of this rule, as for example, King Herod ordering to kill all the children below certain age with a view to kill Infant Jesus Christ, as the King Herod feared that Lord Jesus Christ would one day become a King of Kings himself, in his place. The equality rule should have aimed to kill only one child and not all the children below a particular age. As the above action was found to be unconscionable, equality rule is being interpreted by the Judiciary (which is one of the three Pillars, besides Legislature and Executive, under the Constitution which is supreme to all the three Pillars of the State including the Judiciary) to mean “among equals, the law should be equal and should be equally administered, that like should be treated alike. So, this rule is being interpreted on the basis of ‘valid classification’. For example, this rule does not apply equally to all the citizens because of certain Special Privileges and immunities provided under the Constitution to (1) the President of India, Governors of States, Members of the Parliament, and Members of Legislative Assemblies (2) Differential liability of a private employer to his employees and of the State to its staff, (3) Differential treatment being meted out to a Government Servant and an ordinary Citizen, (4) in Matters of right to release advertisements by a State on the one hand and the Press or other Media on the other hand, and (5) the Right of a Gram Panchayat to remove a Pradhan of Gram Sabha by a Motion of No Confidence, etc.
(ii) Prohibition against discrimination on grounds of religion, race, caste, sex or place of birth. (Art.15). Clause (1) of this Article directs the State not to discriminate against a citizen on any of the above grounds in any matter which is exclusively within the control of the State. The word “only” used in Art. 15(1) means “merely”. It follows from this that discrimination on grounds other than religion, race, caste, sex, or place of birth is not prohibited. Clause(2) prohibits the States as well as citizens from making any discrimination with regard to access to shops, public restaurants, hotels and places of public entertainment, or the use of public resorts maintained wholly or partly out of State Funds or dedicated to the use of the general public, wells, tanks, bathing ghats, roads. Clause (3) empowers the State to make Special Provisions for the protection of Women and Children. That means States can discriminate in favour of women against men but it cannot discriminate in favour of men against women. The Special Provisions can be made to improve women’s participation in all activities under the supervision and control of the States either in the form of ‘affirmative Action’ or ’Reservation’. Clause (4) enables the State to make Special Provisions for the protection of the interests of the Backward Classes of Citizens and is, therefore, an exception to Articles 15 and 29(2) of the Constitution.
(iii) Equality of Opportunity in matters of Public Employment (Reservations) (Art.16).. While Art. 15 prohibits discrimination on any of the 5 grounds (i. e. grounds on the basis of religion, race, caste, sex or place of birth), Art. 16 contains 7 prohibited grounds (i.e. religion, race, caste, sex, descent, place of birth or residence ) Articles 15 and 16 can be invoked by Citizens only. The purpose /reason behind making provision for Reservations is, treating equally all classes of people at all times would result in inequality. Therefore, provision for Reservation is made in order to uplift the socially and educationally Backward Classes of citizens as a compensatory benefits to them. Art. 16(4) expressly permits the State to make provisions for the Reservation of appointments of posts in favour of any Backward Class of citizens in the services under the State.
(iv) Eradication or abolition of Untouchability (Art.17).
(v) Abolition of all Titles, except Educational Degrees. (Art.18).
(B) RIGHT TO FREEDOMS. These freedoms are not absolute but are subject to
reasonable restrictions. These freedoms are most essential for the existence and
survival of human life. These are embodied under Articles 19 to 22.
(i) Freedom of Speech and Expression (Art.19(1)(a). It means the right to express one’s own convictions and opinions freely by use of words of mouth, writing, printing, pictures or any other mode. It includes the expression of one’s own ideas by any communicable media or visible representation (Eg.:- signs, gestures, etc.) The Constitution empowers the State to impose certain reasonable restrictions on the grounds of (1) Security of the State, (2) Friendly relations with Foreign States, (3) Public Order, (4) Decency and Morality, (5) Contempt of Court, (6) Defamation, (7) Extent to offence and (8) Integrity and sovereignty of India. Art. 19(1)(a) includes Freedom of Press. Freedom of Speech and Expression also includes freedom not to speak or observe silence. Demonstration or picketing is visible manifestation of one’s ideas and in effect a form of Speech and Expression. Demonstrations or picketing is protected under Art. 19(1)(a) provided they are not violent and disorderly whereas strike or right to strike is not included in the ambit of Freedom of Speech.
(ii) Freedom of assembly,{Art.19(1)(b)}. It guarantees to all citizens right to
assemble peacefully without arms. It includes the right to hold meetings and to take out processions. However, this right is subject to certain restrictions. There is no right to hold meetings on private property belonging to others.
(iii) Freedom to form Association {Art.19(1)(c)}. This article guarantees to all
citizens the right to form associations and unions. However, this right is subject to certain restrictions under Art. 19(4). The right to form an association included the right not to be a member of an association.
(iv) Freedom of Movement {Art.19(1)(d)}. This freedom guarantees to all
citizens the right to move freely throughout the territory of India. This right extends the freedom to go abroad also. However, Art. 19(5) imposes certain restrictions on this right in the interests of general public.
(v) Freedom to Reside and to settle down {Art.19(1)(e)}. It guarantees to all
citizens the right to reside and settle in any part of the territory of India. However, Art. 19(6) imposes reasonable restrictions in the interest of public or Schedule Tribe. It was held that under the U.P. Suppression of Immoral Traffic in Women and Girls Act, 1956, the Magistrate could compel a prostitute to remove herself from the place of her residence. The Act was upheld by the Supreme Court as imposing reasonable restrictions on the freedom of movement or residence of prostitutes, on the ground of public health and in the interest of public morals i. e. to protect the public from the harmful effects of prostitution.
(vi) Freedom of Profession, Occupation, Trade or Business {Art.19(1)(g)}
and 19(6). Art.19(1)(g) guarantees to all citizens, the right to practice any profession or to carry on any occupation, trade or business. Article 19(6) imposes reasonable restrictions. The right to carry on a business includes the right not to start any business or if he chooses, he has the right to close it down at any time he likes. Thus, the State cannot compel a citizen to carry on business against his will. It was observed by the Supreme Court that no person had a right to carry on the business if he could not pay even the minimum wages to his workers. Sec. 25-O of the Industrial Disputes Act, 1947, requires the employer to take prior permission from the Government for closure of his industrial Undertaking and the Government could refuse the permission to close down the business if it is satisfied that the reasons given by the employer are not adequate and sufficient or that such closure is prejudicial to the public interest. Sec. 25-R provides for punishment for violation of Section 25-O The Supreme Court held that Section 25-O as a whole and Section 25-R in so far as it related to the awarding of punishment for violation of the provisions of Section 25-O as unconstitutional and invalid as this violates the fundamental right under Art. 19(1)(g). Further, the refusal to close down the business even if he could not pay, was not a reasonable restriction in the public interest within the meaning of Art. 19(6).
(vii) Freedom of Right to Property is no longer a fundamental right but is now a mere constitutional Right under (Art.300A)
(C) PROTECTION AGAINST CONVICTION FOR OFFENCES (ART.20). Clause (1) of this Article prohibits ex post facto laws. It means a law which imposes penalties or convictions on the acts already done and increases the penalty for such acts. Ex post facto laws impose penalties retrospectively. For example, The Dowry Prohibition Act, 1961 came into force from 20-5-1961. A person guilty of accepting dowry is punishable under the Act after 20-5-1961 and not before 20-5-1961.
Ex post facto laws are of three kinds –
(a) A law which declares some act or omission as an offence for the first time after the completion of that act or omission.
(b) A law which enhances the punishment or penalty for an offence subsequent to the commission of that offence.
© A law which prescribes a new and different procedure for the prosecution of an offence subsequent to the commission of that offence.
Clause (1) of Art. 20 provides protection only in respect of the above first two categories of ex post facto laws and not for the third category.
Clause (2) of Art. 20 speaks of ‘ Double Jeopardy’. The expression ‘double jeopardy’ means “punished twice or punishment given for more than once for commission of the same offence”. In other words, a man must not be put twice in peril for the same offence. Therefore, this clause (2) provides for protection against double jeopardy. Clause (2) applies only if a person is accused of an offence and the person must have been prosecuted before a Court or a judicial Tribunal.
Clause (3) of Art. 20 prohibits self-incrimination, saying that “no person accused of any offence shall be compelled to be a witness against himself”. The protection under Art. 20(3) is available only if the person seeking the protection is accused of an offence, the protection is against ‘compulsion to be a witness’ and the compulsion relates to giving of evidence ‘against himself.’
Confessional statement (self harming statement/statement made against himself) made by a person/accused to a Police Officer is inadmissible in evidence under Sec. 25 of the Evidence Act, 1872. As per Sec. 26, such confession shall not be proved against him (accused). However, as per Sec. 27, ‘when an information given by the accused in Police Custody leads to the discovery of an incriminating material object like jewellery, weapons, etc. that portion of the information can be proved against the accused. It is made clear that Sec. 27 of Evidence Act is not violative of Art. 20(3).
(D) RIGHT TO LIFE AND PERSONAL LIBERTY (ART.21). This right is the heart of the fundamental rights. It says that ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’ After the decision of the Supreme Court in Maneka Gandhi’s case in 1978, Art. 21 guarantees to the citizens not only from the Executive action, but also from the Legislative action. The protection under Art. 21 is available to the citizens and non-citizens alike. Under Art. 21 a person can exercise his personal liberty and it cannot be curtailed. However, the latter part of Art. 21 imposes restriction that the person’s liberty can be curtailed in accordance with the procedure established by law. Similar provision is to be found in the 5th Amendment to American Constitution that ‘No person shall be deprived of his life or personal liberty without due process of law’.
Art. 21 comprises of 4 words viz. life, personal liberty, law and procedure. To know the ambit of Art. 21, we have to know, how these words are understood / interpreted by the Supreme Court.
Life is essential to any human being. Right to life is a natural right, which cannot be transferred. However, in the larger interests of the Society, life or personal liberty can be taken away by the State under due process of law in America and procedure established by law in India. Art. 21 of the Indian Constitution is borrowed from the American Constitution and the words ‘procedure established by law’ are inserted instead of the words ‘due process of law’. In the first leading case on Art. 21, (AIR 1950 SC 27) A. K. Gopalan was detained under Preventive Detention Act, 1950. On a challenge to the validity of the Act, the Supreme Court interpreted the word ‘liberty’ narrowly and upheld the validity of the Act.
But in Maneka Gandhi’s case (Passport Case) AIR 1978 SC 597, where Mrs. Maneka Gandhi (W/o late Sanjay Gandhi) was issued Passport. Later, she was informed that the Government decided to impound her passport and she was required to surrender it, without stating the reasons. She challenged the Government’s decision to impound her passport as it violates her personal liberty guaranteed under Art. 21. The apex Court held that ‘the procedure established by law’ under Art. 21 must be just, reasonable and fair, but not any type of procedure. This decision overruled the decision of the Supreme Court in A. K. Gopalan’s case and removed the difference between ‘Due process of law’ (America) and procedure established by law (India). Just like the procedure means ‘just, reasonable and fair’, so also the law means ‘just, reasonable and fair law’
‘Life’ generally means ‘keeping soul and body together’. Doubt arises if a person is in koma i.e. neither dead nor alive. Now the question is what type of life is guaranteed under Art. 21 of the Constitution. Right to Life and Personal Liberty guaranteed under Art. 21 covers / includes the following :
1. Right to Privacy. It is held in 63 SC 1295 that the life guaranteed under Art. 21 is not mere animal existence and is something more than that. In this case, domiciliary visits at nights to observe the movements of the accused was held violative of Art. 21 of the Constitution. Another example is telephone tapping is held in 97 SC 568 is a serious invasion of an individual’s right to privacy, which is part of the right to life and personal liberty enshrined under Art. 21 and it should not be resorted to by the State unless there is public emergency or interest of public safety requires.
2. Right to Livelihood. In 86 SC 180, it is held that life under Art. 21 includes ‘the rights to livelihood’. Termination of service without giving reasonable opportunity of hearing, is unjust, arbitrary and illegal, held in (1993)3 SCC 258. The non-payment of minimum wages to the workers is held to be violative of “right to life” in 82 SC 1473
3. Right to Die. It is held by Bombay High Court in 1987 Cr. L.J. 549 that right to life under Art. 21 also includes the right to die and struck down Sec. 309 IPC. The right to live in Art. 21 includes the right not to live i. e. right to die (1994) 3 SCC 394. However, in (1996) 2 SCC648, five Judge Constitution Bench of the Supreme Court has overruled and held that ‘right to live under Art. 21 does not include ‘right to die’ or right to be killed’ and therefore Sec.309 is not violative of Art. 21 of the Constitution.
4. Right to Education. In (1993) 1 SCC 111, the Hon’ble Supreme Court has held that right to free education is available only to children upto the age of 14 years. Beyond 14 years, the obligation to provide eduction is subject to the economic capacity and development of the State.
5. Right to get pollution free Water and Air. In 87 SC 1086 the Supreme Court treated the right to live in pollution free environment as a part of fundamental right to life under Art. 21 of the Constitution.
“Personal Liberty” under Art. 21 is qualified and restrictive and is with
regard to bodily injury or wrongful confinement and not more than that. After the decision in Maneka Gandhi’s case, the Supreme Court adopted dynamic approach in interpreting ‘personal liberty’ under Art. 21 in subsequent cases.
Art. 21 and Emergency. During the emergency arising out of the Chinese
attack in 1962, arising out of the Pakistan attack in 1971 and during the emergency imposed by the Govt. headed by Prime Minister Indira Gandhi in 1976 on the ground of internal disturbance, Article 21 was suspended. Art. 359 empowers the President to suspend. In 76 SC 1207 it was held that Art. 21 was the sole repository of the right to life and personal liberty and if the right to move to any court for the enforcement of that right was suspended, the detenu had no locus standi to file a writ petition for challenging the legality of their detention. This law is no longer a good law in view of 44th Constitutional Amendment to Art. 359 which now provides that the enforcement of the right to life and liberty under Art. 21 cannot be suspended by Presidential Order.
(E) PROTECTION AGAINST ARBITRARY ARREST AND DETENTION IN CERTAIN CASES (ART.22). This applies to both citizens and non-citizens irrespective of whether the detention is made under ordinary law or under the law of preventive detention.
Clauses (1) and (2) provides for ordinary law arrest/detention,
a) Right to be informed, as soon as may be, of the grounds for arrest or
detention.
b) Right to consult and to be defended by a legal practitioner of his choice.
c) Right to be produced before the nearest Magistrate within 24 hours’ of arrest.
d) Right not to be detained in custody beyond 24 hours without the authority of the Magistrate.
Clauses 4 to 7 of Art. 22 contain procedural requirements if the detention is a
preventive detention viz.
a) No detention beyond 3 months unless detention is approved by the
Advisory Board.
b) The detaining authority must communicate as soon as may be, to the
detenue the grounds for such detention.
c) The detenu must be afforded the earlier opportunity of making a
representation against the order of detention.
(d) No detention beyond the maximum period prescribed under a law made by Parliament under clause 7(b).
(F) PROHIBITION OF TRAFFIC IN HUMAN BEINGS AND FORCED LABOUR (ART.23). ‘Traffic in human beings’ means “dealings in human beings like chattels viz. buying men or women like goods”. It includes immoral traffic in women or girls or subjecting children to immoral, begging, bonded labour or such other practices like slavery. The term ‘Begar’ means “involuntary work without payment”. It constitutes the following two elements:
a) It is to compel a person to work against his/her will; and
b) He/she is not paid any remuneration for that work.
The expression ‘Bonded Labour’ denotes “over exploitation of manpower or extraction of labour and services against the payment of less than minimum wages or even without wages.”
Clause (1) of Art. 23 prohibits traffic in human beings and beggar and other similar forms of forced labour and states that any contravention of this provision shall be an offence punishable in accordance with law.
Clause (2) of Art. 23 contains an exception to the above general rule. Under this clause, the State is empowered to impose compulsory service for public purpose. But in imposing such compulsory service, the State cannot make any discrimination on ground only of religion, race, caste or class or any of them. As for example, compulsory Military Service or Social Services can be imposed because they are neither beggar nor traffic in human beings.
In pursuance of Art. 23, Suppression of Immoral Traffic in Women and Girls Act, 1956 and Bonded Labour System (Abolition) Act, 1976 were passed. Under the Bonded Labour System (Abolition) Act, a person guilty of extracting bonded labour is punishable with imprisonment which may extend to 3 years and fine of Rs.2000/.
(G) ERADICATION OF CHILD LABOUR BY PROHIBITING EMPLOYMENT OF CHILDREN IN FACTORIES ETC. (ART.24). This provision read with the Directive Principles of State Policy contained in Art. 39(e) and (f) provides for the protection of the health and strength of children below the age of fourteen years.
Further, there are a number of enactments, which prohibit employment of children viz. Employment of Children Act, 1938; Motor Transport Workers Act, 1951; Merchant Shipping Act, 1958; Apprentice Act, 1961; Beedi & Cigar Workers (Prohibition and Regulation) Act, 1986, etc.
In 82 SC 1473, the Supreme Court held that Art. 24 could be plainly and indubitably enforced against every one, whether State or private individuals.
(H) RIGHT TO FREEDOM OF RELIGION (ARTICLES 25 TO 28). The word ‘Religion’ is not defined in the Indian Constitution. India is a secular State. The word ‘secular’ and ‘secularism’ under the law means that “State does not owe loyalty to any particular religion, and the State has no religion of its own”. It protects all religions viz. Hindu, Muslim, Christian, Parsi, etc. Every one has a right to relate himself to God according to his own conscience. In 94 SC 1918, the Supreme Court has held that the State in the interest of public order can impose certain restrictions on the freedom of religion. The State is also empowered to compulsorily acquire religious property for the public purpose. The State in the interest of public health and morality can prohibit certain deleterious religious practices viz.
(i) sacrifice of human beings, cows, etc.
(ii) bigamy;
(iii) system of Devadasi, etc.
(i) Freedom of Conscience and the right to profess, practice and propagate religion (Art.25). Clause (1) of Art. 25 secures every person (a) freedom of conscience; and (b) right to (i) profess religion; (ii) practice religion; and (iii) propagate religion.
The expression ‘freedom of conscience’ means ‘the inner freedom of a person
to mould his relations with his God in whatever manner he likes. The word ‘profess’ means to ‘allow publicly or to declare openly one’s own faith or belief in’. The expression ‘practice of religion’ signifies acts done in pursuance of religious belief’.
In 58 SC 731 the Supreme Court rejected the contention of the petitioners that
the sacrifice of a cow on Bakrid day, was an integral part of their religion and held that the sacrifice of cow on the Bakrid day was not an essential part of Mohammedan religion.
In Bijoe Emmanual v. State of Kerala, (National Anthem Case) reported in AIR
1987 SC 748, three children belonging to the “Jehova’s witnesses” of the Christian Community were expelled from the school for refusing to sing the National Anthem. They challenged the validity of their expulsion on the ground that it was violative of their fundamental right under Art. 25. They stood up respectfully when the National Anthem was being sung every morning at their school but refused to sing the National Anthem as according to them it was against the tenets of their religious faith. The Kerala High Court held that it was their fundamental duty under the Constitution to sing the National Anthem.
On appeal, the Supreme Court reversed the High Court decision and held that
there is no legal obligation in India for a citizen to sing the National Anthem. The right under Art. 25(1) cannot be regulated by Executive Instructions which had no force of law.
(ii) Right/Freedom of Religious Denominations (Art.26). It provides that subject to public order, morality and health, every religious denomination or any section thereof shall have their right –
a) Right to Establish and Maintain Institutions (Art.26(a). It guarantees to every “religious denomination” or any section thereof, the right “to establish and maintain institutions for religious and charitable purposes”.
The words ‘establish’ and ‘maintain’ in Art. 26(a) must be read conjunctively.
So read, it would mean that only those institutions which a denomination establishes that it can claim the right to maintain those. In 86 SC 662, the Aligarh Muslim University was established by the Central Govt. under the Aligarh Muslim University Act, 1920, enacted by the Central Legislature. The Supreme Court held that since the University was not established by the Muslims, there was no question of the University being maintained by them.
b) Right to manage matters of Religion {Art. 26(b)}. This clause (b) of Art.26 guarantees to every religious denomination ‘right to manage its own affairs in matters of religion.’
The expression ‘matters of religion’ includes religious practices, rites and
ceremonies essential for the practicing of religion.
c) Right to own and Administer Property {Art. 26© and (d)}. Clause © of Art.26 secures to a religious denomination or any section thereof “the right to own and acquire movable and immovable property”.
Clause (d) of Art. 26 further strengthens the above right by guaranteeing to the
denomination “the right to administer such property in accordance with law”.
(iii) Freedom as to payment of taxes for promotion of any particular religion (Art.27). Art. 27 prohibits the levying of a tax, the proceeds of which are specifically appropriated towards promotion of a particular religion. If such a tax is imposed, no person can be compelled to pay it.
The object behind Art. 27 is to secure the secular characteristic of India which
prohibits the promotion or maintenance of any particular religion by the State or at State’s expenses.
However, it may be made clear that Art. 27 prohibits the levy of a “tax” and not
the imposition of a “fee”.
(iv) Prohibition of Religious Instructions in Educational Institutions (Art.28). Clause (1) of Art. 28 provides that no religious instructions shall be provided in any educational institutions wholly maintained out of State Funds.
Clause (2) is an exception to Clause (1) and 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 instructions shall be imparted in such Institution.
Clause (3) of Art. 28 further provides that no person attending any educational institution recognized by the State or receiving aid out of State Funds shall be required to take part in any religious instructions that may be imparted in such institution 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.
(I) CULTURAL AND EDUCATIONAL RIGHTS OF MINORITIES (ARTICLES 29 AND 30). The term ‘minority’ is not defined in the Constitution. In the case of the Kerala Education Bill, the Supreme Court observed that while it was easy to say that the minority meant a Community which was numerically less than 50%. The 50% is not in relation to the entire population of the State or India., but with reference to the particular legislation. If it is a State law, a minority would be determined in relation to the population of the State. Where a law passed by the State Legislature extends to the whole of the State, minority for the purpose of Art. 29 and 30 would be determined by reference to the entire population of that State. Accordingly, it was held that Christians, Muslims and Anglo Indians would be minorities in the State of Kerala.
(i) Protection of Interests of Minorities (Art.29). Clause (1) provides that 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.
The “right to conserve” means the right to preserve and the right to maintain. The right to conserve one’s own language, script or culture, thus, means and includes the right to preserve and to maintain own language, script or culture. It includes the right to work for one’s own language, script or culture and to agitate for the same.
The right contained in Art. 29(1) may be exercised by setting up educational institutions and by imparting instructions to the children of their own Community in their own language. In re: D.A.V. College, Bhatinda v. State of Punjab, AIR 1971 SC 1731, the Punjab University was established at Patiala under the Punjab University Act, 1961. After the reorganization of the State of Punjab in 1969, the Punjab Government issued a Notification providing for the compulsory affiliation of all the colleges situated within the area under the jurisdiction of the Punjab University, Patiala. Thereafter, the University issued the impugned Circular to all the affiliated colleges requiring them to introduce Punjabi in Gurmukhi script as the sole medium of instruction as well as examinations. The Supreme Court struck down the Circular as violative of the right of the petitioner to conserve their script and language and to administer their institutions in their own way.
Clause (2) of Art. 29 states that 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.
(ii) Rights of minorities to establish and administer the educational institutions of
their own (Art.30).
1. All minorities, whether based on religion or language, shall have the right to
establish and administer Educational Institutions of their choice.
1.A. In making any law providing for the compulsory acquisition of any property of
an Educational Institution established and administered by a minority, referred to in
Clause (1), the State shall ensure that the amount fixed by or determined under such
law for the acquisition of such property is such as would not restrict or abrogate the
right guaranteed under that Clause.
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.
The expression “linguistic minority” for the purpose of Art. 30(1) is one which
must have a separate spoken language and that language need not have a distinct
script. In India, a number of languages are spoken having no script of their own. But
people speaking such a language having no script of its own constitute a linguistic
minority for the purposes of Article 30(1). A linguistic minority is to be determined with
reference to the language spoken by the Community and not with reference to any
other language which the Community wants its children to study.
The expression ‘religious minority’ means “that the only and principal basis of
the minority must be adherence to one of the many religions and not a sect or part of
the religion. Jains and Sikhs have been held to be minorities on religion within the
meaning of Art. 30(1) in the Union Territory of Delhi.
Art. 30(1) guarantees to all linguistic and religious minorities the ‘right to
establish’ and the ‘right to administer’ Educational Institutions of their own choice.
The word ‘establish’ indicates the right to bring into existence, while the right to
administer an institution means the right to effectively manage and conduct the affairs
of the institution. Thus, it leaves it to the choice of the minority to establish such
Educational Institutions as will serve both purposes, namely, the purpose of
conserving their religion, language or culture, and also the purpose of giving through
General Education to their children in their own language.
Clause (2) of Art. 30 prohibits the State from making discrimination in the
matter of grant of aid to any educational institution on the ground that it is managed
by a religious minority or linguistic minority.
In State of Bihar v. Syed Asad Raza, AIR 1997 SC 2425, it has been held that
for creation of post in a minority institution for appointment, prior approval of the
Vice-Chancellor is not necessary, and the persons so appointed would be entitled to
grant in aid in view of Art. 30(1) of the Constitution. Clause (2) of Art.30 provides that
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.
The inter-relationship of Articles 29(1) and 30(1) was elaborately examined by
the Supreme Court in the case of St. Xaviers College v. State of Gujarat AIR 1974
SC 1389. In this case, the validity of Secs.33-A, 40, 41, 51-A, 52-A of the Gujarat
University Act, 1949, as amended by Act of 1973 were questioned by the petitioners
who were running St. Xaviers College of Arts and Commerce in Ahmedabad. On
behalf of the State, it was contended that the protection to minorities guaranteed by
Article 30(1) was not available to this College because it was not founded for the
conservation of language, script or culture, as mentioned in Article 29 of the
Constitution.
The Court after reviewing its earlier decisions, held that “Art. 30(1) covers
institutions imparting general secular education. The object of Art. 30 is to enable
children of minorities to go out in the world fully equipped. It will be wrong to read
Art. 30(1) as restricting the right of minorities to establish and administer educational
institutions of their choice only cases where such institutions are concerned with
language, script or culture of the minorities. Articles 29 and 30 create two separate
rights though it is possible that the rights might meet in a given case.” Art. 29(1) is a
General protection given to sections of citizens to conserve their language, script or
culture Whereas Art. 30 is a Special Right to minorities to establish Educational
Institutions of their choice.
(J) RIGHT TO CONSTITUTIONAL REMEDIES FOR ENFORCEMENT OF THE FUNDAMENTAL RIGHTS (ARTICLES 32 TO 35). An individual, whose fundamental right is abridged (affected / violated) by a law passed by the Parliament can approach the Court (Supreme Court under Art.32 or High Court under Art.226) for the enforcement of his fundamental right. The Judiciary under its review power can examine the validity of such law, which infringes the fundamental right.
Art. 31-C empowers the Parliament as well as the State Legislatures to enact laws towards securing the Directive Principles of State Policy specified in Art. 39(b) and (c) of the Constitution of India for securing ‘Economic Justice’ to the citizens and such laws cannot now be challenged on the ground that they infringe the fundamental rights guaranteed under Article 14 or 19 of the Constitution. Thus, Art. 31-C gives an immunity to all legislations embodying the Directive Principles of State Policy contained in Art. 39(b) and (c) from being challenged as violative of the Fundamental Rights guaranteed under Articles 14 and 19.
Art. 39(b) directs the State that the ownership and control of the material resources of the Community are so distributed as best to subserve the common good.
Art. 39© directs the State that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.
(K) FUNDAMENTAL DUTIES
Every citizen of India must carry out and perform properly his/her fundamental duties which are enumerated in Part IVA of the Constitution of India. These are incorporated in Article 51A which reads as under:-
“51A. It shall be the duty of every citizen of India –
(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;
(c) to uphold and protect the sovereignty; unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) 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;
(f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests, lakes, rivers, and wild life, and to have compassion for living creatures;
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement;
(k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.”
T. M. NADAR
B. COM., LL.B., D.C.L.(GLC, MUM.)
ADVOCATE, HIGH COURT, MUMBAI
Dated 11-09-2010.