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Fundamental Rights - Part 2
7.0 RESERVATIONS AND THE INDIAN CONSTITUTION
Equality in essence is the soul of the Indian Constitution. Since ancient times India the caste system has been prevailing in India which resulted in discrimination and the exclusion of people belonging to certain classes from various opportunities for knowledge and employment. The Constitution of India, therefore, has made provisions for reservations in many direct and indirect ways.
Under Article 15 (3) of the Constitution, any special provision may be made for women and children belonging to all social groups transcending caste, religion etc., for their advancement and welfare in all fields.
Under Article 15 (4), special provisions may be made for the advancement of any socially and educationally backward class and for the Scheduled Castes and the Scheduled Tribes. The "advancement" meant here is again in any field. This sub-clause (4) of Article 15 was inserted by an amendment in 1951.
Article 16 (4) permits the state to make any provision for the reservation of appointments or posts in favour of any backward class, which, in the opinion of the state, is not adequately represented in the services under it. The expression "backward class" in this sub-clause is interpreted by the Supreme Court to mean "socially and educationally backward" as is specifically mentioned in the sub-clause (4) added later to Article 15.
Article 46 directs the state to promote with special care the educational and economic interests of the "weaker sections of the people", particularly of the Scheduled Castes and the Scheduled Tribes and also directs the state "to protect them from social injustice and all forms of exploitation".
Article 335 states that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration consistently with the maintenance of efficiency of administration in the making of appointments to the services and posts in connection with the affairs of the Union and of a State.
These provisions may appear to be exceptions to the citizens' right to equality before the law or to the equal protection of the laws guaranteed by Article 14. However, a deeper examination reveals that these provisions enable the state to make the right to equality a reality for the vast majority of the backward classes. These classes, along with the Scheduled Castes and the Scheduled Tribes, constitute about 85 per cent of the population. The exceptions enable the state to deliver benefits of progress to the deprived sections of the society. It is to give effect to the principle of equality that the exceptions become mandatory in any unequal society such as ours which intends to become egalitarian.
The exceptions made in the Constitution are in favour of four classes for certain stated purposes, with or without
conditions –
- Women and children in general, i.e. belonging to all social groups and all the strata of the society regardless of class, caste, race, religion etc. [Article 15 (3)], obviously for their all-round welfare and development
- The socially and educationally backward classes and [for their advancement, Article 15(4)]
- The Scheduled Castes and the Scheduled Tribes
- The ‘weaker sections’, which, in particular, include the Scheduled Castes and the Scheduled Tribes for promoting with special care their educational and economic interests and to protect them from social injustice and all forms of exploitation [Article 46].
To be included in the weaker sections as mentioned in Article 46, the identification of section of people is done on the basis of
- Whose educational and economic interests need to be promoted with special care, and
- Who need to be protected from social injustice and all forms of exploitation.
Those sections, which are merely economically weak or backward, would not qualify for promotion of their interests under the cover of Article 46. Although Article 46 speaks of weaker sections, whose "economic" interests have also to be promoted along with their "educational" interests with special care, it also speaks of "protecting" them from all forms of "social injustice and exploitation".
The Supreme Court in all its decisions on reservation has interpreted the expression “backward classes” in Article 16 (4) to mean the "socially and educationally" backward. It also emphatically rejected "economic backwardness" as the only or the primary criterion for reservation under article 16 (4) and observed that economic backwardness has to be on account of social and educational backwardness.
The present system of reservation is in favour of ”classes”, and not individuals. And in order that the individuals may qualify for them, they must belong to those classes. There is no one or particular ‘class’ which is economically backward. All classes and social groups have economically backward individuals. But on that account alone, a group does not qualify to be called a backward class.
8.0 Freedom of Speech in India
A lot of emphasis is given in the Indian Constitution on the freedom of speech. The Preamble of the constitution itself ensures for all citizens, liberty of thought, expression, belief, faith and worship. The constitutional significance of the freedom of speech consists in the Preamble of Constitution and is transformed as fundamental and human right in Article 19(1) (a) as "freedom of speech and expression". Taking a broad view of the scope of freedom of speech and expression, the Supreme Court (SC) has said that the words "freedom of speech and expression" must be construed to include the freedom to circulate one's views by words of mouth or in writing or through audio-visual instruments. Freedom of speech and expression means the right to express one's own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one's idea through any communicable medium or visible representation, such as gesture, signs, and the like.
Moreover, it is important to note that liberty of one must not offend the liberty of others. Patanjali Shastri, J. in A.K. Gopalan case, observed, "man as a rational being desires to do many things, but in a civil society his desires will have to be controlled with the exercise of similar desires by other individuals". It therefore includes the right to propagate one's views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this country therefore has the right to air his/her views through the print and/or the electronic media subject to permissible restrictions imposed under Article 19(2) of the Constitution. In sum, the fundamental principle involved here is the people's right to know. Freedom of speech and expression should, therefore, receive generous support from all those who believe in the participation of people in the administration. We can see the guarantee of freedom of speech under the following heads.
8.1 Freedom of Press (media)
Although Article 19 does not have any express provision for freedom of ‘press’, but the fundamental right of the freedom of press is implicit in the right to freedom of speech and expression. In the famous case Express Newspapers (Bombay) (P) Ltd. v. Union of India, the Supreme court observed the importance of press very aptly. The SC held that "In today's free world, the freedom of press is at the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible on a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities."
The above statement of the Supreme Court illustrates that the freedom of press is essential for the proper functioning of the democratic process. Democracy means Government of the people, for the people and by the people; it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. This explains the constitutional viewpoint of the freedom of press in India.
8.2 Grounds of Restrictions
It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some restrictions on this freedom for the maintenance of social order, because no freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2) of the Constitution of India, the State may make a law imposing "reasonable restrictions" on the exercise of the right to freedom of speech and expression "in the interest of" the public on the following grounds:
{Clause (2) of Article 19 of Indian constitution contains the grounds on which restrictions on the freedom of speech and expression can be imposed}
(1) Security of State: Security of the State is of vital importance and a government must have power to impose restriction on the activity affecting it. Under Article 19(2) reasonable restrictions can be imposed on freedom of speech and expression in the interest of security of State. However the term "security" is very crucial one. The term "security of state" refers only to serious and aggravated forms of public order e.g. rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. Thus speeches or expression on the part of an individual, which incite to or encourage the commission of violent crimes, such as murder, are matters which would undermine the security of State.
(2) Friendly relations with foreign states: In the present global world, a country has to maintain good and friendly relationship with other countries. Something which has potential to affect such relationship should be checked by government. Keeping this in mind, this ground was added by the constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly state, which may jeopardize the maintenance of good relations between India, and that state.
No similar provision is present in any other Constitution of the world. In India, the Foreign Relations Act (XII of 1932) provides punishment for libel by Indian citizens against foreign dignitaries. The interest of friendly relations with foreign States would not justify the suppression of fair criticism of foreign policy of the Government. However it is interesting to note that members of the Commonwealth, including Pakistan, are not a "foreign state" for the purposes of this Constitution. The result is that freedom of speech and expression cannot be restricted on the ground that the matter is adverse to Pakistan.
(3) Public Order: Next restriction prescribed by the constitution is to maintain public order. This ground was added by the Constitution (First Amendment) Act. 'Public order' is an expression of wide connotation and signifies "that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established."
Here it is pertinent to look into meaning of the word "Public order. Public order is something more than ordinary maintenance of law and order. 'Public order' is synonymous with public peace, safety and tranquility. Anything that disturbs public tranquility or public peace disturbs public order. Thus, communal disturbances and strikes promoted with the sole object of creating unrest among workmen are offences against public order. Public order thus implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. Public order also includes public safety. Thus creating internal disorder or rebellion would affect public order and public safety. But mere criticism of government does not necessarily disturb public order.
The words 'in the interest of public order' includes not only such utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder. Thus a law punishing utterances made with the deliberate intention to hurt the religious feelings of any class of persons is valid because it imposes a restriction on the right of free speech in the interest of public order since such speech or writing has the tendency to create public disorder even if in some case those activities may not actually lead to a breach of peace. But there must be reasonable and proper nexus or relationship between the restrictions and the achievements of public order.
(4) Decency or morality: The way to express something or to say something should be a decent one. It should not affect the morality of the society adversely. Our constitution has taken care of this view and inserted decency and morality as a ground. The words 'morality or decency' are words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. No fix standard is laid down till now as to what is moral and indecent. The standard of morality varies from time to time and from place to place.
(5) Contempt of Court: Judiciary plays a very important role in India. It is essential to respect such institutions. Hence, restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court. According to Section 2, 'Contempt of Court' may be either 'civil contempt' or 'criminal contempt.' The Indian contempt law was amended in 2006 to make "truth" a defence. However, even after such amendment a person can be punished for the statement unless they were made in public interest. Again in
Indirect Tax Practitioners Assn. vs R.K. Jain, it was held by the court that, "Truth based on the facts should be allowed as a valid defence if courts are asked to decide contempt proceedings relating to a speech or an editorial or article". The qualification is that such defence should not cover-up to escape from the consequences of a deliberate effort to scandalize the court.
(6) Defamation: The Constitution considers reputation as a ground to put restriction on freedom of speech. A statement, which injures a man's reputation, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating to defamation is still uncodified in India and subject to certain exceptions.
(7) Incitement to an offence: This ground was also added by the constitution (First Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right to incite people to commit offence. The word 'offence' is defined as any act or omission made punishable by law for the time being in force.
(8) Sovereignty and integrity of India: To maintain sovereignty and integrity of the State is prime duty of government. Taking it into account, the freedom of speech and expression can be restricted so as not to permit any one to challenge the sovereignty or to permit any one to preach something which will result in threat to integrity of the country.
One can, therefore, reasonably conclude that restrictions in Article 19 (2) are all concerned with the national interest or the interests of society. The first set of grounds i.e. the sovereignty and integrity of India, the security of the State, friendly relations with foreign States and public order are all grounds referable to national interest, whereas, the second set of grounds i.e. decency, morality, contempt of court, defamation and incitement to an offence are all concerned with the interest of the society.
9.0 PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES
The rights of persons accused of crimes have been safeguarded by the provisions of Article 20. For the purposes of this article, persons include citizens, non-citizens as well as corporations. Article 20 acts as a limitation on the legislative powers of the Union and the State legislatures and a series of judicial decisions have held that this article cannot be suspended even when an emergency has been imposed under the Constitution.
9.1 Ex-Post facto Law
According to Article 20 (1) no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The legislature does not have the authority to make laws which provide for punishment of acts committed prior to the date when the law came into force. In simple terms this means a new law cannot punish an old act.
9.2 Doctrine of Double Jeopardy
According to the maxim 'nemo debet bis vexari', no person shall be prosecuted and punished for the same offence more than once. This is the foundation of the Doctrine of Double Jeopardy. The objective of Article 20(2) is to avoid harassment, which is caused for successive criminal proceedings, in relation to the same crime. No man shall be put twice in peril for the same offence.
The two aspects of Doctrine of Jeopardy are 'autrefois convict' (the person has been previously convicted in respect of the same offence) and 'autrefois acquit' (the person has been acquitted on a same charge on which he is being prosecuted). The Constitution bars double punishment for the same offence. However, the conviction for such offence does not prevent subsequent trials and conviction for another offence. That some ingredients of these two offences are common is an irrelevant fact.
9.3 Self Incrimination Law
Another legal maxim 'Nemo tenetur accusare se ipsum nisi coram Deo' says that ‘No one is bound to accuse himself except in the presence of God’. Article 20(3) of the constitution says that no person accused of any offence shall be compelled to be a witness against himself. The accused is presumed to be innocent till his guilt is proved. It is the duty of the prosecution to establish his guilt.
10.0 RIGHT TO LIFE
The word No in this Article has been used in relation to the word deprived. The object of the fundamental right under Article 21 is to prevent encroachment upon personal liberty and deprivation of life except according to procedure established by law. It clearly means that this fundamental right has been provided against the State only. If an act of a private individual amounts to encroachment upon the personal liberty or deprivation of life of other person, the remedy for aggrieved person would be either under Article 226 of the constitution or under general law but not under Article 21. But, where an act of private individual supported by the state infringes the personal liberty or life of another person, the act will certainly come under the ambit of Article 21.
A man and woman even without getting married can live together if they wish to. This may be regarded immoral by the society but it is not illegal. There is, thus, a difference between law and morality.
10.1 Objective
The main objective of Article 21 is that before a person is deprived of his life or personal liberty by the State, the procedure established by law must be strictly followed. Right to Life means the right to lead meaningful, complete and dignified life. It does not have restricted meaning. It is something more than surviving or animal existence. Personal Liberty means freedom from physical restraint of the person by personal incarceration or otherwise. Procedure established by Law means the law enacted by the State. Deprived also has a wide range of meaning under the Constitution. These ingredients are the soul of this provision. The fundamental right under Article 21 is one of the most important rights provided under the Constitution which has been described as heart of fundamental rights by the Apex Court.
10.2 Rights covered
In the case of Unni Krishnan v. State of A.P., the Apex Court itself provided the list of some of the rights covered under Article 21 on the basis of earlier pronouncements, and some of them are listed below:
- The right to go abroad
- The right to privacy
- The right against solitary confinement
- The right against handcuffing
- The right against delayed execution
- The right to shelter
- The right against custodial death
- The right against public hanging
- Doctor’s assistance
It was observed in Unni Krishnan’s case that Article 21 is the heart of Fundamental Rights and it has extended the scope of Article 21 by observing that ‘life’ includes education and also that the right to education flows from the right to life.
10.3 Expanding Scope
As a result of expansion of the scope of Article 21, the Public Interest Litigations in respect of children in jail being entitled to special protection, health hazards due to pollution and harmful drugs, housing for beggars, immediate medical aid to injured persons, starvation deaths, the right to know, the right to open trial, inhuman conditions in aftercares homes etc., have found place under it. Through various judgments the Apex Court also included many of the non-justiciable Directive Principles embodied under part IV of the Constitution. Some examples are:
- Right to pollution-free water and air
- Protection of undertrials
- Right of every child to a full development
- Protection of cultural heritage
Maintenance and improvement of public health, improvement of means of communication, providing human conditions in prisons, maintaining hygienic condition in slaughter houses have also been included in the expanded scope of Article 21. This scope further has been extended even to innocent hostages detained by militants in shrine who are beyond the control of the State.
11.0 right to education
The Right to Education Act provides for the:
- Right of children to free and compulsory education till completion of elementary education in a neighbourhood school.
- It clarifies that 'compulsory education' means obligation of the appropriate government to provide free elementary education and ensure compulsory admission, attendance and completion of elementary education to every child in the six to fourteen age group. 'Free' means that no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education.
- It makes provisions for a non-admitted child to be admitted to an age appropriate class.
- It specifies the duties and responsibilities of appropriate Governments, local authority and parents in providing free and compulsory education, and sharing of financial and other responsibilities between the Central and State Governments.
- It lays down the norms and standards relating inter alia to Pupil Teacher Ratios (PTRs), buildings and infrastructure, school-working days, teacher-working hours.
- It provides for rational deployment of teachers by ensuring that the specified pupil teacher ratio is maintained for each school, rather than just as an average for the State or District or Block, thus ensuring that there is no urban-rural imbalance in teacher postings. It also provides for prohibition of deployment of teachers for non-educational work, other than decennial census, elections to local authority, state legislatures and parliament, and disaster relief.
- It provides for appointment of appropriately trained teachers, i.e. teachers with the requisite entry and academic qualifications.
- It prohibits (a) physical punishment and mental harassment; (b) screening procedures for admission of children; (c) capitation fee; (d) private tuition by teachers and (e) running of schools without recognition.
- It provides for development of curriculum in consonance with the values enshrined in the Constitution, and which would ensure the all-round development of the child, building on the child's knowledge, potentiality and talent and making the child free of fear, trauma and anxiety through a system of child friendly and child centered learning.
12.0 PROTECTION AGAINST ARREST AND DETENTION
In A.K. Gopalan v. State of Madras, AIR 1950 S.C. 27, the Supreme Court had expressed the view that a detainee could not claim the freedom guaranteed by Article 19(l)(d) if it was infringed by his detention.
But this view of the court changed in R.C. Cooper v. Union of India, AIR 1970 S.C. 564, and in Maneka Gandhi's case. The court expressed the view in these cases that a law relating to preventive detention must satisfy not only the requirements of Article 22 but also the requirements of Article 21 of the Constitution.
12.1 Preventive Detention
The legislative capacity of Parliament or the State legislatures to enact a law of preventive detention is limited to clauses 4 to 7 of Article 22 which lay down a few safeguards for a person subjected to such detention. The scheme of these clauses is to classify preventive detention in three categories, viz.:
- A preventive detention up to two months, provision for which may be made either by Parliament or a State legislature, in such a case, no reference may be made to an Advisory Board; However, Constitution (44th Amendment Act, 1978) has substituted a new clause for clause (4) which now reduces the maximum period for which a person may be detained without obtaining the opinion of Advisory Board from 3 months to 2 months. The detention of a person for a longer period than 2 months can only be made after obtaining the opinion of the Advisory Board.
- Preventive detention for over three months subject to safeguard of an Advisory Board consisting of persons qualified to act as High Court judges. No person can remain in preventive detention for more than 3 months unless the Board holds that in its opinion, there are sufficient causes for detention.The Supreme Court has held in Puranlal Lakhan Lai v. Union of India, AIR 1958 S.C. 163, that the Advisory Board's function is not to determine the period of detention but only to determine whether the detention by itself is justified.
- Preventive detention for over three months without the safeguard of an Advisory Board. Such detention is possible if Parliament prescribes by law the circumstances under which, and the class or classes of cases in which a person may be detained for over three months without reference to Advisory Board.
Parliament may also prescribe the maximum period for which a person can be detained in cases (b) and (c). This provision, it has been held, is merely permissive and does not oblige Parliament to prescribe any maximum period. Further, Parliament may by law prescribe the procedure to be followed by an Advisory Board in an inquiry under Clause (4).
12.2 Safeguards
Grounds of detention must be communicated: Article 22(5) gives the right to the detainee to be communicated the grounds of detention as soon as possible. The detaining authority making the order of detention must, as soon as possible, communicate to the person detained the grounds of his/her arrest and to give the detainee the earliest opportunity of making representation against the order of the detention. The clause (5) of Article 22 imposes an obligation on the detaining authority to furnish to the detainee the grounds for detention, "as soon as possible". The grounds of detention must be clear and easily understandable by the detainee.
In Ram Bahadur v. State of Bihar, AIR 1975 S.C. 245, it has been held that where the order of detention is founded on distinct and separate grounds, if any of the grounds is vague or irrelevant, the entire order must fail.
Right of representation: Article 22 imposes an obligation upon the Government to afford the detainee the opportunity to make representation under clause (5). It makes no distinction between order of detention for only two months and less and for those for a longer duration.
The obligation applies to both kinds of orders. It is clear from clauses (4) and (5) of Article 22 that there is dual obligation on the appropriate Government and dual right in favor of detainee, namely, (i) to have his representation irrespective of the length of detention considered by the appropriate Government, and (ii) to have once again in the light of the circumstances of the case considered by Board before it gives its opinion.
If in the light of the representation, the Board finds that there is no sufficient cause for detention, the Government has to revoke the order of detention and set at liberty the detainee.
Advisory Board: Article 22 provides that the detainee under the preventive detention law shall have the right to have his representation against his detention reviewed by an Advisory Board. If the Advisory Board reports that the detention is not justified, the detainee must be released forthwith. If the Advisory Board reports that the detention is justified, the government may fix the period for detention.
The Advisory Board must conclude its proceedings expeditiously and must express its opinion within the time prescribed by law. Failure to do that makes detention invalid. Along with its opinion, the Board must forward the entire record to the Government who is supposed to take a decision on the perusal of the entire record.
The Constitution (44th Amendment Act, 1978) has amended Article 22 and reduced the maximum period for which a person may be detained without obtaining the opinion of the Advisory Board from 3 months to 2 months.
It has also changed the constitution of the Board which shall now consist of a Chairman and two other members. The Chairman must be a sitting judge of the appropriate High Court and other members shall be either a sitting or retired judge of a High Court.
The detenu has no right of legal assistance in the proceedings before the Advisory Board. But if the Government is given a facility, it should equally be provided to the detainee.
The discretion of the Board to permit or not to permit must be exercised in conformity with Articles 14 and 21 of the Constitution. It has been held in Nand Lal vs. State of Punjab, AIR 1921 S.C. 2041, that this discretion cannot be exercised in an arbitrary manner.
The Constitution (44th Amendment Act, 1978) now provides that Article 21 will not be suspended during emergency and hence detention can be challenged in a court of law.
13.0 RELIGIOUS FREEDOM
Fundamental right to freedom of religion is guaranteed under Articles 25, 26, 27 and 28 of Part III of the Indian Constitution. It is religious freedom in the background of a secular state. The Supreme Court of India has explained the secular character of the Indian Constitution thus:
"Secularism is neither anti-God nor pro-God, it treats alike the devout, the antagonistic and the atheist. It eliminates God from the matters of the state and ensures that no one shall be discriminated against on the ground of religion".
It is through several provisions that the Indian Constitution upholds the spirit of secularism. Article 25 is one of the pillars of fundamental rights guaranteed by the Constitution. The relevance of this legislation can be gauged only when one understands the importance of preserving the pluralistic ethos of the country and the idea of harmonious coexistence of different religions.
13.1 Meaning and Scope of Article 25
Article 25 of the Indian Constitution states that every individual is "equally entitled to freedom of conscience" and has the right "to profess, practice and propagate religion" of one's choice "public order, morality and health" are not disturbed. The Article does not put any restriction on the government when it comes to making any law to regulate "economic, financial, political or other secular" activities, which may be associated with religious practice.
The freedom to follow any religion and propagate it, yet this freedom comes with a responsibility to ensure that the public order, morality and health are not compromised in the process.
This constitutional provision does not give individuals the right to conduct animal sacrifice and perform religious rituals on a busy street or public place that causes inconvenience to others. Similarly, the use of loudspeakers in temples or mosques is not guaranteed in the Article 25. Bursting fire crackers for religious occasions and using loudspeakers during religious prayers had come under the scrutiny of the Supreme Court that restricted the time of bursting crackers.
The Article 25 should not be considered as absolute. Though the right to perform rituals is protected under this Article, yet the state retains the power to formulate laws to regulate "economic, financial, political" and other activities which are not directly related to a religion. That's the reason why the government controls the management of some of the temples.
13.2 Demand for Amendments to Article 25
According to Human rights activists and Constitutional experts,Article 25 dilutes the importance of secularism that most Indians swear by. Their criticism of this Article stems from the fact that it considers Sikhs, Jains and Buddhists as sections of Hindus and doesn't acknowledge them as independent religions.
The demand for amending clause (b) of Article 25 has started gaining momentum with the leaders of the Sikh community and MPs making a fresh bid to get the Article amended. Adding fuel to this demand, a US-based rights group has launched an online petition to garner more support. According to the president of Shiromani Gurdwara Parbandhak Committee (SGPC), Sikhism is a religion which has its distinct traditions and philosophy and the Sikhs are being deprived of their legitimate rights due to this Article.
The right under Article 26(a) is a group right and is available to every religious denomination. Clause (b) of Article 26 guarantees to every religious denomination the 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.'
An important case that involved the right of a religious denomination to manage its own affairs in matters of religion was Venkataramana Devaru Vs. State of Mysore. In this matter, Venkatramana temple was belonging to the Gowda Saraswath Brahman Community. The Madras Temple Entry Authorization Act, supported by Article 25(2)(b) of the Constitution, threw open all Hindu public temples in the state to Harijans. The trustees of this denominational temple refused admission to Harijans on the ground that the caste of the prospective worshipper was a relevant matter of religion according to scriptural authority, and that under Article 26(b) of the Constitution they had the right to manage their own affairs in matters of religion. The Supreme Court admitted that this was a matter of religion, but when it faces conflict with Article 25(2) (b), it approved a compromise arrangement heavily weighted in favour of rights of Harijans and a token concession to the right of a religious denomination to exercise internal autonomy.
Further Article 26(c) and (d) recognize the right of a religious denomination to own, acquire and administer movable and immovable property in accordance with law. However it was held in Surya Pal Singh Vs. State of U.P. that this guarantee did not imply that such property was not liable to compulsory acquisition under the U.P. Abolition of Zamindari Act. Similarly in Orissa, land reforms resulted in the expropriation of a village and surrounding agricultural land dedicated to the maintenance of a Hindu deity. Since compensation was paid, the High Court held that there was only a change in the form of the property.
Article 25: Important cases
- Dr Balwant Singh v Commissioner of Police and Others, Civil Appeal Jurisdiction, Civil Appeal No 10024 OF 2014, Supreme Court of India judgment dated November 7, 2014
- Christian Medical College Vellore and Others v Union of India and Others, Civil Original Jurisdiction, T C (C) No 98 OF 2012
- Indian Soaps & Toiletries Makers Association v Ozair Husain and Others, Civil Appeal Jurisdiction, Civil Appeal No. 5644 OF 2003, Supreme Court of India judgment dated March 7, 2013
13.3 Places of Worship
In K. Mukundaraya Bhenoy v. The State of Mysore, the court has considered the right of a religious denomination to maintain its place of worship. The Court ruled that if a law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority it would be a violation of the right guaranteed under Article 26 of the Constitution of India.
In the subsequent Judgment reported in Angappa Goundan v. Kuppammal, the Court considered the question of Hindu public temples. The Court took conginzance of Mukundarya Shenoy's case and a Division Bench ruled that the Hindus in the larger sense, including all sections of Hindus constitute a religious denomination within the meaning of Articles 21 and 26 of the Constitution of India.
13.4 Limitations
Public order, morality and health: The rights given under Article 25 and 26 are not absolute. No person can do such religious things which affect the public order, morality and health. For example no one has right to conduct human sacrifice. No one can perform worship on busy highway or other public places which disturb the community. Though rituals are not prohibited, the state by law may regulate the economic, financial, political, or other activity which may not be a direct part of religion.
For example management of Temples can be controlled by the state. Using the loudspeakers for making noise is not guaranteed by the Constitution. The protagonists of this thought took shelter of Article 19(1) freedom of speech and right to expression. However, nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers. In this context, cracking of fireworks on Diwali & using loudspeakers for Azaan in the morning had also come under Supreme Court's scrutiny. The Court restricted the time of bursting the firecrackers as it does not in any way violate the religious rights of any person as enshrined under Article 25 of the Constitution.
In Church of God in India v. K.K.R. Majestic Colony Welfare Assn. the Supreme Court held that the Court may issue directions in respect of controlling noise pollution even if such noise was a direct result of and was connected with religious activities. The mandate included the following lines: "Undisputedly, no religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice amplifiers or beating of drums. In our view, in a civilized society in the name of religion, activities which disturb old or infirm persons, students or children having their sleep in the early hours or during daytime or other persons carrying on other activities cannot be permitted".
Article 26 gives every religious group a right to establish and maintain institutions for religious and charitable purposes, manage its affairs, properties as per the law. This guarantee is available to only Citizens of India and not to aliens.
On the subject of Article 25 and 26, the judiciary, through various decisions has laid down the following
- Use of loudspeakers is not an integral part of the religions so the government can restrict on the use of loudspeakers for Ajan and Bhajan Kirtans.
- Followers of a particular religion have no right to stop the processions of other religions on the ground that it is a nuisance.
- State may abolish "Cow Slaughter" as sacrifice of Cow on Bakri-Id is not an essential part of the religion.
- Possessing a Kirpan is an essential part of professing Sikkism and it is protected right of Sikhs. (Article 25 Explanation I).
- The Aligarh Muslim University was established under an act of Parliament. Therefore Muslims cannot claim that they have the exclusive right to run this University.
- None of the rights guarantee that a Brahmin only can perform rituals of Hinduism.
14.0 CULTURAL AND EDUCATIONAL RIGHTS
Article 28 of the Indian Constitution puts limits on religious instruction in schools managed wholly Government funds (Public schools). No person attending any educational institution acknowledged by the State or receiving aid out of State funds shall be obliged to take part in any religious instruction that may be instructed or taught in such institution or to attend any religious worship that may be performed in such institution or in any premises. In case of a minor, his guardian has to give the consent for the same. Thus, article 28 forbids religious instruction in a wholly State-funded educational institution and educational institutions receiving aid from the State.
In 2013, the Madhya Pradesh Government issued a notification wherein Bhagvad Geeta would be taught in schools from the year 2013-14. However the notification was withdrawn due to criticism from all quarters.
Articles 29 and 30 guarantee certain right to the minorities. Article 29 protects the interests of the minorities by making a provision that any citizen / section of citizens having a distinct language, script or culture have the right to conserve the same. Article 29 mandates that no discrimination would be done on the ground of religion, race, caste, language or any of them.
Article 30 mandates that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. Article 30 is called a Charter of Education Rights. Madrasas are administrated by the Article 30. Article 30 provides an absolute right to the minorities that they can establish their own linguistic and religious institutions and at the same time can also claim for grant-in-aid without any discrimination.
Issues Related to Minority Institutions: Article 30(1A) was inserted by the 44th Amendment Act 1978. This article provides that if while making any law which provides for the compulsory acquisition of any property of any educational institution established and administered by a minority, 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. This clause makes it clear that such acquisition requires conformable compensation.
In the context of the Kerala Education Bill 1957, the Supreme Court of India said that "Article 30 does not say that minorities based on religion should establish the educational institutions for teaching their language / religion only. The minorities would desire that their children be eligible for higher university education, the education institutions of minorities would also include general secular education."
15.0 CONSTITUTIONAL REMEDIES
Article 32 of the Indian constitution provides for constitutional remedies against the violation or transgression of fundamental rights and was referred to "as the very soul of the constitution" by Dr. Ambedkar, provides for constitutional remedies. Clause 2 of Article 32 provides that, "The Supreme Court shall have the power to issue directions or order or writs including the writs in the nature of habeas corpus, mandamus, prohibition, Quo warranto and criterion, whichever may be appropriate for the enforcement of any of the rights conferred by" fundamental rights. The citizens are given the right to move-the Supreme Court in case of transgression of fundamental rights. The Supreme Court thus is constituted into a protector and guarantor fundamental rights. The right to constitutional remedy is itself a fundamental right.
These are writs of Habeas Corpus, Mandamus, Prohibition, Criterion, and Quo Warranto.
Habeas Corpus - Habeas Corpus literally means-that human person is sacred. Hence no man may be detained illegally. Whenever a man is detained, he must be produced before a court. This writ is a powerful safeguard against arbitrary arrest and detention.
Mandamus - meaning 'command', mandamus calls upon public servants to perform some duties. Thus mandamus is issued against dereliction of duty.
Prohibition - as the very term prohibition-suggests, this writ is issued by the Supreme Court or the High Courts, to prohibit inferior courts under them to overstep their jurisdiction.
Certiorari - it enables a superior court of compels inferior courts to submit records of proceedings to the higher court.
Quo warranto - literally means by what right. This writ is issued to determine the legality of a person's claim to public office. The purpose of this writ is to prevent usurpation of a public office by an undesirable or, unqualified person.
Like fundamental rights themselves, the right to constitutional remedies under Article 32 are not without limits. The most important limitations is that Article 359 empower the President to suspend the right to move the courts for the restoration of fundamental rights. In other words, Article 359 empowers the President to suspend Art 32 of the constitution. Such an order however is to be submitted to the Parliament, and the Parliament has the right to disapprove the Presidential order.
16.0 ABROGATION OF FUNDAMENTAL RIGHTS
Articles 33 and 34 give the right to the Parliament of India to alter the provisions of this part in certain circumstances. The various situations are:
Article 33 empowers the Parliament to restrict or abrogate the application of the fundamental rights in relation to the armed forces, paramilitary forces, police etc. But it does not mean that the article itself would abrogate any rights. The operation of this article depends upon the parliamentary legislation, though these legislations don't need to refer this article. Such legislation by parliament of India may restrict the operation of any fundamental rights such as Equality, Freedom of Expression, Freedom of association, Personal Liberty etc. One such article is Police Forces (Restriction of Rights) Act, 1966. This act was even challenged in Supreme Court but was held valid. Some acts such as Army Act 1950, Navy Act 1950, Air Forces Act 1950 were the major acts enacted by parliament of India as per this article 33 of constitution of India.
Parliament is empowered to make a law determining "to what extent any of the right shall, in their application to (a) the members of the Armed forces or (b) the members of the armed forces charged with the maintenance of public order", be restricted or abrogated so as to ensure the proper discharge of their duties. They need to maintain discipline and that is what this article demands.
Article 34 pertains to the restrictions on the fundamental rights conferred by this part while martial law is in force in any area. The article gives indemnity by law in respect of acts done during operations of martial law. If there is a Government servant on duty, then he/ she is indemnified for the acts done by him or her in connection with maintenance of law and order in the area where martial law is in force. This act of indemnity CAN NOT be challenged in any court on the ground of contravention with any of the fundamental rights
Article 35 has been enacted to to give effect to the Fundamental rights enacted under the earlier provisions. It lays down that the power to make laws, to give effect to certain specified fundamental rights shall vest only in the Parliament and not in the state legislatures. This provision ensures that there is uniformity throughout India with regard to the nature of those fundamental rights and punishment for their infringement. In this direction, Article 35 contains the following provisions:
1. The Parliament shall have (and the legislature of a State shall not have) power to make laws with respect to the following matters:
- Prescribing residence as a condition for certain employments or appointments in a state or union territory or local authority or other authority (Article 16)
- Empowering courts other than the Supreme Court and the high courts to issue directions, orders and writs of all kinds for the enforcement of fundamental rights (Article 32)
- Restricting or abrogating the application of Fundamental Rights to members of armed forces, police forces etc. (Article 33)
- Indemnifying any government servant or any other person for any act done during the operation of martial law in any area (Article 34)
2. Parliament shall have (and the legislature of a state shall not have) powers to make laws for prescribing punishment for those acts that are declared to be offences under the fundamental rights. These include the following:
- Untouchabililty (Article 17)
- Traffic in human beings and forced labour (Article 23)
Further, the Parliament shall, after the commencement of the Constitution, make laws for prescribing punishment for the above acts, thus making it obligatory on the part of the Parliament to enact such laws.
Any law in force at the commencement of the Constitution with respect to any of the matters specified above is to continue in force until altered or repealed or amended by the Parliament.
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