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GS Mains Foundation 2018
GS Mains Foundation 2018

Basic Fundamental Rights/Rights for Citizens and Aliens/Military Laws

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Basic Fundamental Rights Fundamental Rights between Citizens and Aliens Articles related to Martial Law

Basic Fundamental Rights

Fundamental Rights are basic rights as they are most essential for the attainment of full intellectual, moral and spiritual stature by an individual. These are known as the Magna Carta of India.
Part III of the Constitution is called the Cornerstone of the Constitution (Sajjan Singh V/s State of Rajasthan) and together with Part IV (Directive Principles of State Policy) it constitutes the ‘Conscience of the Constitution’.
The 44th amendment has abolished right to property as fundamental right as guaranteed by Article 19(1)(f) and article 31of the constitution and hence Article 19(1)(f) and article 31 omitted.

Classification of Fundamental Rights: All the fundamental rights have been classified under the following six categories:
• Right to be Equality (Art.14-18)
• Right to Freedom (Art.19-22)
• Right against Exploitation (23-24)
• Right to Freedom of Religion (Art.25-28)
• Cultural and Educational Rights (Art.29-30)
• Right to Constitutional Remedies (Art.32)

Article 12: Defines state (As used in FRs) which includes:
• The Government and Parliament of India,
• The Government and legislatures of the states,
• All local authorities and
• Other authorities in India or under the control of the Government of India.

Article 13: Laws inconsistence with FRs:
• Provides shield to FRs by declaring that all laws, which are inconsistent with or in derogation of any of the Fundamental Rights, shall be void to the extent of their inconsistency.
• Here the terms law includes ordinance, order, bye-law, rule, regulation, notification, custom or usage.
• Thus, Article 13 imposes an obligation on the State to respect and implement the Fundamental Rights and provides the Judiciary the Judicial Review power.

RIGHT TO EQUALITY: Article 14 to 18:
Article 14: says that state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Two aspects are there:
Equality Before Law: A negative concept, where no man is above law. It ensures juristic equality under the constitution. Equality is antithetic to arbitrariness. Equality and arbitrariness are sworn enemies.
• But certain exceptions to it are, the president of India, state governors, Public servants, Judges, Foreign diplomats, etc., who enjoy immunities, protections, and special privileges.
Equal Protection of Law: A positive concept, which says that law(s) shall be applied equally among individuals who are placed equally. It means like should be treated alike.
Rule of Law: The guarantee of Equality before Law is an aspect of, what Lord Dicey calls, the Rule of Law that originated in England. It means no man is above law and that every person, whatever be his rank or status is subject to the jurisdiction of ordinary Courts. It also says that no person shall be subject to harsh, uncivilized or discriminatory treatment even for the sake of maintaining law and order.

There are three basic meaning of Rule of Law:
• Absence of Arbitrary power or supremacy of law.
• Equality before law – No one is above law
• The Constitution is the Supreme Law of the land and all laws passed by the legislature must be consistent with the provisions of the Constitution.

Article 15: Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth
• This says that the state shall not discriminate against only of religion, race, caste, sex, place of birth or any of them.
• No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, restriction or condition with regard to:
a) Access to shops, public restaurants, hotels and places of public entertainment;
b) The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
• Under Article 15 (3) and (4), the government can make special provisions for women & children and for a group of citizens who are economically and socially backward.
• This also brings in the concept of Reservation for socially and economically backward classes.

Article 16: Equality of Opportunity in matters of Public Employment
• According to this, the state is prohibited from showing any discrimination against any citizen on grounds of religion, caste, race, sex, descent, place of birth or residence.
The other clauses of this Article are in the nature of exceptions such as:
a) Residence can be a criteria for employment on the basis of historical aspects.
b) Special favours in case of backward classes, if they are not adequately represented.
c) Religion can be the ground for discrimination for appointment in religious institutions which are taken over by the state.

Article 17: Abolition of Untouchability
• It abolishes “untouchability” and its practice in any form is made an offence punishable under the law.
• The enforcement of any disability arising out of untouchability shall be an offense punishable by law.
• Untouchability: not to be understood in its literary or grammatical sense and to be understood as the practise as it has developed historically.
• Civil Rights: Any right accruing to a person by reason of the abolition of untouchability under Art 17 of the Constitution.
• Article 17 imposes a duty on public servants to investigate such offences.

Article 18: Abolition of Titles
• No title, not being a military or academic distinction, shall be conferred by the State.
• No citizen of India shall accept any title from any foreign state.
• No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.
• No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present emolument or office of any kind from or under any foreign State.

Article 19: These freedoms are available only to the citizens. The six fundamental freedoms enumerated by Art.19 are the right to:-
a) Freedom of speech and expression
b) Assemble peaceably and without arms
c) Form association or unions
d) Move freely throughout the territory of India.
e) Reside and settle in any part of the territory of India and
f) To practice any profession or to carry on any occupation, trade or business.
However, these rights are not available in real sense and the following restrictions may be imposed on these rights:
a) The state can make a law which imposes reasonable restrictions on the exercise of these rights on the grounds of security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence (Art.19 (2).
b) The state can also make laws imposing reasonable restrictions on the freedom of movement and residence in the interests of general public or for the protection of the interests of STs.
c) Although a citizen is free to adopt any profession or occupation under Art.19, the state can make laws relating to professional or technical qualifications necessary for profession. The state can also carry on any trade, business, industry or service to the exclusion of citizens.
Freedom of Press: The expression freedom of press has not been used in Art. 19 but is comprehended within the freedom of speech and expression.
Reasonableness is subject to judicial reviews: The power to determine as to what constitutes a reasonable restriction is given to courts. The court ultimately decides whether a limitation is reasonable or not. If the court finds a restriction to be unreasonable it will declare the law or order containing it to be unconstitutional and void. Thus the reasonableness of a restriction is subject to judicial review.

Article 19 and Judicial Review: The six basic freedoms under Art 19 are not absolute. The state can impose reasonable restrictions. The expression ‘Reasonable Restriction’ has introduced the doctrine of Judicial Review. The determination by the legislature of what constitutes the reasonable restriction is subject to judicial review.
In determining the reasonableness court looks not only to the surrounding circumstances but also other laws which were passed as a single scheme.

Article 20: (Protection in respect of conviction for offenses):
Article 20 says that state can impose reasonable restrictions on the groups of security of the state, friendly relations with foreign states, public order, decency, morality, contempt of court, defamation, etc.
• No person shall be convicted of any offence except for violation of the 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.
• No person shall be prosecuted and punished for the same offence more than once.
• No person accused of any offence shall be compelled to be a witness against himself.

Article 21: Protection of Life and Personal Liberty
• No person shall be deprived of his life or personal liberty except according to procedure established by law. Earlier view about liberty: It means a personal right not to be subjected to imprisonment, arrest or other physical coercion without legal justification.
• But now it has widest amplitude and it covers a variety of rights which constitutes personal liberty.
Giving the widest interpretation to Art 21, the Supreme Court has declared the following rights as fundamental rights within the scope of Art. 21:
• Right to education
• Right to health
• Right to environment
• Right to shelter
• Right to privacy
• Right to speedy trial
• Right of the prisoners
• Right to legal aid
• Right against cruel and unusual punishment
• Right not to be subjected to bonded labour
• Right to travel abroad
• Right against solitary confinement
• Right against handcuffing

Right to Education (Art. 21-A):
• By the Constitution (86th Amendment) Act, 2002 a new fundamental right has been provided by inserting Art. 21-A. It casts a duty on the state to provide free and compulsory education to all children between the ages of 6 to 14 years. To implement this right the State will enact appropriate laws. Education being a concurrent subject laws may be enacted either by the Union or the States.
In the same way, Supreme Court has also held that Freedom of speech and expression guaranteed under Article 19(1) includes the right to know, right to information and right to reply.
• It must be noted here that Right to life does not include Right to Die or Right to get killed i.e. mercy killing.
• Capital Punishment has not been held violative of Article 14, 19 and 21.
• Hanging as a mode of execution is also fair and just as per Supreme Court.
• The Supreme Court has held that right to live also include Right to live with dignity.

Article 22: Protection against arrest and detention
Art.22 has two parts. The first part deals with Punitive Detention and the second part with Preventive Detention. If a person is arrested after committing a crime, it is called punitive detention. Art. 22 provides following protection against such detention.
• Right to be informed of the ground of arrest.
• Right to consult and be defended by a lawyer.
• Right to be produced before a magistrate within 24 hours of his arrest (excluding the time of journey).
• Right not to be detained for more than 24 hours without the authority of a magistrate.
The above rights are not available to an enemy alien and a person detained under a law of prevention detention.
Preventive Detention: the detention of a person even before he commits a crime so that he can be prevented from committing the crime. These safeguards are available even to enemy aliens. Preventive detention is possible only on limited grounds such as defence, foreign affairs, security of state, and maintenance of public order.
• Since, 1950 the following preventive detention acts have been passed:
• Preventive Detention Act, 1950 (Repealed)
• Maintenance of Internal Security Act, 1971 (MISA) (Repealed)
• Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA)
• National Security Act, 1980
• Prevention of Terrorism Act, 2002 (POTA) (Repealed)
• Terrorist & Disruptive Activities (Prevention) Act, 1987 (Repealed)
• Essential Services Maintenance Act, (ESMA)

Safeguards against preventive detention:
• If the detention is for more than 3 months the matter must be referred to an advisory board in which there shall be a High Court judge. The detention may be continued only where the advisory board considers that there are sufficient grounds for further detention.
• Grounds of detention must be communicated to the detenu.
• The detenu must be given an opportunity to make a representation against the order of detention.

Article 23: Prohibition of Traffic in human beings and forced labour:
• It prohibits traffic in human beings, beggar and all other forms of forced labour. Selling a human being or pledging the services of human beings for a consideration, living on the earnings of a prostitute are examples of trafficking.
• Parliament has enacted the Immoral Traffic (Prevention) Act, 1956 and the Bonded Labour System (Abolition) Act 1976 to punish for such traffic.
• However, Clause 1 & 2 of Art 23 allows the State to impose compulsory service for public purposes. Conscription of the defence of the country of assisting the police in trying circumstances would be permissible under Art 23(2).

Article 24: Prohibition of employment of children in factories, etc
• It prohibits the employment of children below the age of 14 years in any Factory, Mine or Other Hazardous Employment.
• The Employment of Children Act, 1938, the Child Labour (Prohibition and Regulation) Act, 1986, the Factories Act, 1948, The Mines Act, 1953 and similar other Acts prohibit the employment of children below 14 years of age.
• In M C Mehta v/s State of Tami Nadu, the SC held that state authorities should protect economic, social and humanitarian rights of millions of children working illegally in public and private sectors. The SC has laid down exhaustive guidelines for the education of children and for setting up a Child Labour Rehabilitation Welfare Fund.
• Other industries in respect of which the directions were given are Diamond polishing, Precious stone polishing, Glass industry, Brass-ware industry, Carpet industry, Lock-making industry and State industry.

The Preamble of the Constitution declares Liberty of thought, expression, belief, faith and worship. This read with Articles 25 to 28, guarantees equality in the matters of faith and religion. Secularism means that the State shall observe an attitude of neutrality and impartiality towards all religions. Right to Freedom of Religion

Article 25: Freedom of conscience and free profession, practice and propagation of religion
• It provides Freedom of conscience and right to profession, practice and propagation of religion. However, this right is subject to public order, health and morality.
• Secondly, the State may by law regulate economic, financial, political or other secular activity which may be associated with religious practice but do not constitute an essential part of religion, e.g., right to observe and practice rituals and to manage religious affairs is protected. But the right to manage a temple can be controlled.
• Thirdly, the State may intervene to bring social reform and for throwing open of Hindu temples to all sections of Hindus.
Two fold freedom:
• Freedom of Conscience
• Freedom to profess, practice and propagate religion
a) Conscience: Absolute inner freedom of the citizen to mould his own relation with God in whatever manner he likes.
b) Profess: To declare freely and openly one’s faith and belief.
c) Practice: To perform the prescribed religious duties, rites and rituals and to exhibit his religious beliefs.
d) Propagate: Spread and publicise his religious view for edification of others.
Religious Conversions: As per the SC, Right to Propagate does not include the right to convert. Though voluntary conversion is permitted under Art 25 and laws can be made against forced conversion as in the case of M.P., Orissa, Rajasthan, Chhattisgarh, Himachal Pradesh, Gujarat and Tamil Nadu which have legislated making forced conversion a penal offence.

Article 26: Freedom to manage religious affairs
• This article allows every religious denomination or a section of it to establish and maintain institutions for religious and charitable purposes and manage their religious affairs.
• They can also acquire and own movable and immovable properties and administer such properties in accordance with law.

Article 27: Freedom from payment of taxes for promotion of any particular religion
• Article 27 prohibits the state to impose a tax proceeds of which are meant for payment of promotion or maintenance of any particular religion.
• It means that the state cannot raise a religious tax and also that the state cannot spend its secular taxes for any particular religion as it would go against its secular character.

Article 28: Freedom from attendance religious instructions or worship in educational institutions:
• Educational institutions wholly maintained by state funds are prohibited from imparting religious instructions.
• However, an institution established by a trust but administered by the state can impart religious instructions. But in these institutions no person can be compelled to attend these instructions.

Article 29: Protection of interest of Minorities
This article has two clauses,
• Clause (1) gives protection to every section of the citizens having a distinct language, script or culture;
• Clause (2) relates to admission into educational institutions which are maintained or aided by state funds.
• No citizen shall be denied admission in such institutions on grounds only of religion, race, caste, language or any of them.

Article 30: Right of minorities to establish and administer educational institutions
• Clause (1) of this article gives all minorities, i.e., linguistic or religious, the right to establish and administer educational institutions of their choice.
• Article 29 and 30 both confer certain rights on the minorities. Article 30 specifically mentions the right of all minorities to establish and administer educational institutions.

Article 31: Abolition of right to property
• The Constitution (44th Amendment) Act, 1978 omitted Article 19(1)(f) (Right to acquire, held hold and dispose of property), and shifted the provision in Article 31 (no person shall be deprived of his property except by law) to another article viz. Article 300-A.
• The effect of this change is that the right to property is no more a fundamental right. Thus the Right to property though still a constitutional right, is not a fundamental right. If this right is infringed the aggrieved person cannot access the Supreme Court directly under Art. 32.

Right to Constitutional Remedies: Article 32
• According to Dr B. R. Ambedkar, ‘It is the very soul of the Constitution and the very heart of it. It is the Right to Constitutional Remedies that makes the Fundamental Rights real.
• According to Article 32, when an individual feels that he has been “unduly deprived” of his fundamental rights, he can move the Supreme Court and seek justice.
• Supreme Court has included it in basic structure doctrine.
• The right to move to the Supreme Court where a fundamental right has been infringed is itself a fundamental right. It is a constitutional remedy which has been guaranteed by the Constitution.
Under Article 32, the Supreme Court can issue the following five writs for restoration of fundamental rights. These writs are: Habeas Corpus; Mandamus; Prohibition; Certiorari and Quo Warranto.

Rights for Citizens and Aliens

Fundamental Rights available to both citizens and foreigners except enemy aliens:
The Fundamental Rights guaranteed by Articles 14, 20, 21, 21A, 22, 23, 24, 25, 26, 27 and 28 are available to all persons whether citizens or foreigners.
These are as follows:
• Equality before law and equal protection of laws (Article 14).
• Protection in respect of conviction for offences (Article 20).
• Protection of life and personal liberty (Article 21).
• Right to elementary education (Article 21A).
• Protection against arrest and detention in certain cases (Article 22).
• Prohibition of traffic in human beings and forced labour (Article 23).
• Prohibition of employment of children in factories etc., (Article 24).
• Freedom of conscience and free profession, practice and propagation of religion (Article 25).
• Freedom to manage religious affairs (Article 26).
• Freedom from payment of taxes for promotion of any religion (Article 27).
• Freedom from attending religious instruction or worship in certain educational institutions (Article 28).

Martial Law

What is martial law?
Constitution does not define it. It has been borrowed from English common law and simply refers to military rule. So, any administration which is carried out by armed forces is martial law. Martial law CAN be declared in any area under the territories of India. It is generally imposed under situations like insurgency, war, invasion, rebellion, riots or any other violent activities.

Power of Parliament and Suspension of Fundamental Rights: Article 33 and 34
• Article 33 & 34 provides Parliament the power to modify the application of the fundamental rights to the members of armed forces and Police forces. This is required to make the proper discharge of their duty.
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.
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 to acts done during operations of martial law.
• Here we have to note that the Constitution does not have a provision of authorizing the proclamation of martial law.
• The article simply means that if there is a Government servant on duty, then s/he 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.

Now, here is an important question, which needs our attention:
Article 32 gives right to constitutional remedies by means of writ petitions. Article 33 blocks some of the fundamental rights.

Then are the members of armed forces allowed to file a writ petition in Supreme Court or High court?
The answer is, Yes.
• Here, we have to note that Article 136(2) and 227 (4) exclude the appellate jurisdiction of the Supreme Court and the supervisory jurisdiction of the High Court in case of Court Martial.
• But at the same time, they also don’t exclude the operation of article 32 and 226 (powers of SC and HC to issue writs). This means that the honorable Supreme Court as well as the High Court CAN intervene in the Court martial cases too, provided that there is a substantive fundamental right is excluded by law made under article 33.
• The Supreme Court can intervene if the sentence provided under court martial is disproportionate to the crime.

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