Fundamental Rights ( Part -4) - Indian Polity and Governance | Polity and Constitution (Prelims) by IAS Masters - UPSC PDF Download

Fundamental Rights ( Part -4)

Constitution of India provides safeguards to the linguistic minorities under Article 345 and 347:

• Article 345 :...the Legislature of a State may by law adopt any one or more of the languages in use in the State or Hindi as the language or languages to be used for all or any of the official purposes of that State.
• Article 347:"On a demand being made in that behalf the President may, if he is satisfied that a substantial proportion of the population of a State desire the use of any language spoken by them to be recognised by that State, direct that such language shall also be officially recognised throughout that State or any part thereof for such purposes as he may specify."

The figures for persons speaking a language subsidiary to their mother tongue are given below: Hindi (5.10%), Oriya (5.75%), Malayalam (7.11%), Gujarati (7.31%), Tamil (8.11%), Bengali (8.65%), Assamese (8.96%), Marathi (10.47%), Kashmiri (10.69%), Telpgu (14.03%), Punjabi (14.16%), Kannada (14.43%), Urdu (22.09%).

Art.29 and 30: Analysis

Article 29(1) guarantees to any section of the citizens residing in any part of India having a distinct language, script or culture of its own, the right to conserve the same, i.e., language, script or culture. A minority community can preserve its language, script dr culture by and through educational institutions. Right to establish and maintain educational institutions of their choice is necessary to preserve their distinctive language, script or culture. In order to preserve and promote their language etc, education is important and so Art.29 (2) supports the above. However, since the expression' any section of citizens’ is used in the Article, it applies to majority as well.

Article 29(2) says that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on ground only of religion, race, caste, language or any of them.      -

Article 30(1) says that all minorities ,whether based on religion or language, have the right to establish and administer educational institutions of their choice. This right is further strengthened by Article 30(2) which prohibits the State from discriminating against any educational institutions, in granting aid , on the ground that it is under the management of a minority whether based on religion or language.

Article 29(1) is a general protection given to sections of citizens to conserve their language, script or culture. Article 30 is a special right to minorities based on religion o,r language to establish and administer educational institutions of their choice. While Article 29(1) confers right'on any - section of the citizens which will include the majority section, Article 30(1) confers the right only on minorities based on religion or language. While Article 29(1) is concerned with the right to conserve language, script or culture. Article 30(1) deals with the right of minorities to establish and administer educational institutions of their choice. While Article 29(1) does not deal with education as such, Article 30(1) deals only with fhe establishment and administration of educational institutions.

Important Judgements

St. Stephen's College vs University of Delhi

In St. Stephen’s College vs University of Delhi (1992), the Supreme Court ruled that minority institution should make available at least 50% of annual admission for other communities. The admission of other communities should be done purely on the basis of merit.

T.M.A. Pai Foundation and Others vs State of Karnataka and Others case 2002

Following are the essential features of the landmark judgement

• All citizens have right to establish and administer educational institutions
• The right to administer MEI(Minority Educational Institutions) is not absolute .
• State can apply regulations to unaided MEIs also to achieve educational excellence
• Aided MEIs should admit certain percentage of non-minority students
• Percentage of non-minority students to be admitted to an aided MEI to be decided by the State or University
• Fees to be charged by unaided MEI cannot be regulated but no institution can charge capitation fee

The essence of the judgement is the following

• Right to establish an educational institution is available to both minority and majority
• concept of minority is with reference to the State as States have been linguistically reorganized since Independence
• aided and unaided MEI need to be differentiated
• excellence demands that there should be reasonable regulation by the Government even of the unaided MEIs.

Islamic Academy of Education Vs State of Karnataka case 2003

Supreme Court's five-member Constitution Bench (2003)clarified on the TMA Pai case verdict. Essentially, the ruling says that: Article 30 confers on linguistic and religious minorities the right to establish educational institutions but Government could exercise control and regulation on them for good standards.

The issue acquires importance in the context of the fact that Constitution does not define the words "majority" and “minority” - a lacuna that has induced many Hindu sects, like the Arya Samajists and the Ramkrishnaites to claim minority status. It may be noted that Hindus (82% of the Indian population) are a minority in five States, (Jammu & Kashmir, Punjab, Nagaland, Mizoram, and-Meghalaya).

Conversions

India is a secular country with Art. 25-28 containing the essence of secularism and Preamble to the Constitution proclaiming the same categorically.The people of the country are given the freedom of conscience and the right to freely profess, practise and propagate religion subject to the public order, morality, health and so on (Art. 25.1).

There has been a debate about whether Art. 25(1) can be understood as granting to the people the right to convert another person to one’s own religion. But the Constitution bench of the SC, in Rev. Stainislau vs State of MP case 1977 ruled that Art. 25(1) doest not give the right to convert but only the right to spread the tenets of one’s own religion. The substance of the judgement is

• Art. 25.1 gives the freedom of conscience to all religions and not to one particular region.                                                                '
• Right to convert another person is a violation of his own freedom of conscience.
• What is freedom for one is freedom for the other in equal measure.
• State can intervene in the defence of the public order etc., even if conversions are construed as legal.
• If the conversions are permitted they will be indulged in by every religion and the result is bound to be chaos and destabilization.

The SC delivered the verdict about the legislation made in MP and Orissa to outlaw conversions based on force, fraud and allurement thus exploiting the vulnerability in the social situation.

Thus, only voluntary conversions are valid in India.

Some states in India have passed anti-conversion laws.

Art.31

Art.31 was originally the right to property but was repealed in 1978 by the 44^lh Amendment Act and made into an ordinary right- Art.300A.

Article 31A: If Parliament makes law for implementing agrarian reforms, it can not be struck down by the courts on grounds that it is inconsistent with any of the rights conferred by Article 14 or Article 19.

Article 3IB: Validation of certain Acts and Regulations: None of the Acts and Regulations specified in the Ninth Schedule shall be deemed to be void on the ground that such Act, Regulation or provision is inconsistent Art. 14 or Art. 19.

Article 31C: Saving of laws giving effect to certain directive principles.

The 25^th Amendment Act inserted Article 31 ( c) which immunises legislation undertaken to protect two Directive Principles in Article 38(b) and (c) from challenge in a court of law for any infringement of the rights guaranteed under Articles 14, 19 and 3 I.

The scope was further extended to immunise all DPSPs against the three Fundamental Rights by the 42^nd Amendment Act 1976.

The Supreme Court upheld the immunity but struck down the other part of Art.31( c) which is the following: no law containing a declaration that it is for giving effect to such policy‘shall be called in question in any court on the ground that it does not give effect to such policy.

The expanded scope of Art.31( c ) under the 42^nd Amendment Act was struck down by the apex court in the Minerva Mills case 1978 for denial of judicial review.

The 25^th Amendment Act also said that in case of acquisition of property for public purpose, an 'amount’ can be paid and market rate compensation need not be paid. Supreme Court upheld the same but ruled that the 'amount’ can not be ‘illusory’

Right to Property: Legislative and Judicial history

Originally the Constitution contained the following:

Art. 19(1) (0 All citizens shall have the right to acquire, hold and dispose of property....,

Art 19(5) nothing in the above clauses shall prevent the state from making any laws in the interests of the general public

Art 31 Right to property: The right to property came under pressure from Parliamentary laws from amendments to Art.31 by way of addition of Arts.31 a, b and c.

Art.31A and 3 IB as were inserted by the very first Constitution Amendment Act 1951 were a ~ limitation on the right to property. Art.31C that was introduced by the twenty fifth Constitution Amendment Act 1971 was another limitation. They were aimed at implementing DPSPs. Finally, 44th Amendment Act 1978 deleted Art 31 as the right to property . It now appears as Art.300A. The difference being that it is only a Constitutional right and not a fundamental right any longer.

The objective of initially limiting and later removing the right to property as a Fundamental Right is to implement socialistic policies to benefit the havenots.

Ninth Schedule

The Ninth Schedule was created by a Constitution Amendment in 1951 by former Prime Minister Jawaharlal Nehru to implement land reforms. The basic purpose of the schedule was to abolish zamindari system.Over the years, government included several laws under it, for example the 69 per cent reservation law of Tamil . Nadu.

The Ninth Schedule was included in the Indian Constitution by the Constitution (First Amendment) Act, 1951, as provided by Article 31 B. Items placed in it are given judicial immunity and can not be questioned in a court of law for contradicting Art.14 and Art.19. Thus, judicial review is excluded.

However, it is seen that laws which are not in any manner connected with land reforms or agrarian reforms have been included in the Ninth Schedule in order to avoid judicial scrutiny of their constitutionality on the ground of violation of Fundamental Rights. For example

• The Industries (Development and Regulation) Act, 1951
• The Monopolies and Restrictive Trade Practices Act, 1969 and
• The Foreign Exchange Regulation Act, 1973.

This is contrary to the purpose and object of article 31B.

In 1994, the TN Backward Classes, Scheduled Castes, Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993, was included in the Ninth Schedule of the Constitution through the 76th Constitution Amendment. The TN Act enjoys constitutional protection from challenge in court.

From the 1970’s onwards, the courts realized the scope for misuse of Ninth Schedule. The Waman Rao case verdict of the apex court (1981) stated that any amendments or additiorts to the Schedule after the Keshavananda Bharti case verdict 1973 would have to be examined with respect to their compatibility with the basic structure of the Constitution.

Questions raised by the frequent recourse to the Ninth Schedule

• it is to escape judicial review
• Judicial review is a basic feature of the Constitution and it can not be abridged. To insert in the Ninth Schedule an Act which is nullified by the apex court is to destroy the basic structure of the Constitution.
• it is arguable if policies other than agrarian reforms can be placed in the Ninth Schedule- for example, inclusion of the Tamil Nadu reservation law giving reservation up to 69% against the Supreme Court verdict of limiting it to 50%.
• its impact on separation of powers and checks and balances if judicial review is denied.
• Ninth Schedule is redundant as the purpose of Art.31B is met.

An important aspect of the controversy around the Ninth Schedule pertains to the relationship between Parliament and the Judiciary- conflict between the representative legislature that needs to respond to the needs of the people and the judicial insistence on basic structure of the Constitution being maintained.

Supreme Court Judgement(2007) on Ninth Schedule

The Supreme Court , in the I.R.Coelho judgment in 2007 ruled that laws placed under Ninth Schedule after April 24, 1973( the date of Keshavananda Bharati case verdict when the concept of 'basic features’ was introduced by the apex court) shall be open to challenge in court for violation of the basic structure. Also, 9^th Schedule items can be challenged for violating fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution. Articles 14, 19 and 21 of the Constitution constitute the 'golden triangle’ and can be diluted only if sufficient public interest is served.

The question in Coelho case essentially related to the competence of Parliament to put any law under the Ninth Schedule and, thus, beyond judicial scrutiny.

“A law that abrogates or abridges rights guaranteed by Part 111 of the Constitution may violate the basic structure doctrine or it- may not. If former is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court,” the bench held.

The ruling thus tests an item in the Ninth Schedule on two grounds

• basic structure doctrine
• sanctity of fundamental rights

A three-judge bench was be set up to look into every law placed in the Schedule since April 1993 and satisfy itself that its place is justified.

Writs

Introduction

Under the Indian legal system, jurisdiction to issue ’prerogative writs' is given to the Supreme Court, and to the High Courts. Parts of the law relating to writs are set forth in the Constitution of India. The Supreme Court, the highest in the country, may issue writs under Article 32 of the Constitution for enforcement of Fundamental Rights and under Articles 139 ( if the Parliament permits) for enforcement of rights.other than Fundamental Rights, while High Courts, the superior courts of the States, may issue writs under Articles 226. The Constitution broadly provides for five kinds of "prerogative" writs: habeas corpus, certiorari, mandamus, quo warranto and prohibition.

1. The writ of habeas corpus is issued to a detaining authority, ordering the detainer to produce the detained person in the issuing court, along with the cause of his or her detention. If the detention is found to be illegal, the court issues an order to set the person free.
2. The writ of mandamus is issued to a subordinate court, an officer of government, or a corporation or other institution commanding the performance of certain^acts or duties.
3. The writ of prohibition is issued by a higher court to a lower court prohibiting it from taking up a case because it falls outside the jurisdiction of the lower court. Thus, the higher court transfers the case to itself or any other court of competence.
4. The writ of certiorari is issued to a lower court directing that the record of a case be sent up for review, together with all supporting files, evidence and documents, because the lower court does not have jurisdiction or for sjmilar reason. If any interim order is given, it is quashed.
5. The writ of quo warranto is issued against a person who claims or usurps a public office. Through this writ the court inquires 'by what authority’ the person supports his or her claim.

All the above 5 writs are called prerogative writs( a writ is an official order) as they were originally available only to the Crown under English law. The term may be considered antiquated     -

Right to Constitutional Remedies

Article 32: Remedies for enforcement of rights conferred by this Part. ’

1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
2. The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of

1. Habeas Corpus
2. Mandamus
3. Prohibition
4. Certiorari
5. Quo Warranto

The above writs are issued for the enforcement of any of FRs by the SC

Habeas Corpus: The writ of Habeas Corpus is a remedy available to a person who is confined without legal justification. The words habeas corpus literally means "to have the body". The court issues the writ which has to be obeyed by the detaining authority by producing the person before the court. A Habeas Corpus is a legal writ that protects an individual against arbitrary imprisonment by requiring that any person arrested be brought before a court for formal charge. If the charge is considered valid, the person must submit to trial; if not, the person is left free. When the law is suspended, for example, when national emergency is proclaimed, then individuals can be imprisoned indefinitely and without charge. _t

Under Articles 32 and 226, any person can move for this writ to the Supreme Court and High Court respectively. The applicant may be the prisoner pr any person acting on his behalf to safeguard his liberty. An appeal to the Supreme Court may lie against an order granting or rejecting the application. Disobeying this writ is met with by punishment for contempt of court under the Contempt of Courts Act.

The difference between bail and the writ of Habeas is that the former wants a release from jail conditionally even as the case is proceeding, the latter challenges the very detention as illegal.Parole on the other hand is conditional release from jail of a person who has been convicted and imprisoned . Parole is granted because of "good" behavior or jail over-crowding and that the prisoner does not pose a threat to society being released from Prison before sentence has been completed... If he/she violates conditions of Parole... he/she will be returned to Prison and complete entire sentence and may be even extra time for violation(s). For parole, no money/fees need be paid. For bail it has to be.

Mandamus: The word mandamus literally means "we command". The writ of mandamus is a command issued to direct public or semi-public authority commanding him to discharge a specific public duty. This writ is used when the inferior public or semi public office has refused to discharge its official duty. Mandamus commands activity. The writ is used for securing judicial enforcement of public duties. It is not issued if the authority has discretion. That is, the official duty must be a statutory requirement. The Constitution, through Articles 226 and 32, enables mandamus to be issued by the High Court and the Supreme Court, respectively. It is issued to government, subordinate court, corporation etc commanding them to act or refrain from acting.

Mandamus has less scope compared to habeas corpus- while habeas corpus can be issued to a private person, mandamus can be issued only to the public or semi-public body.

Mandamus does not lie against the President or the Governor of a State for the exercise of their duties and power (Article 361) as they work on the advice of the Council of Ministers. It does not lie also against a private individual or body except where the State is in collaboration with such private party. It is a discretionary remedy and the High Court may refuse if alternative remedy exists except in case of infringement of fundamental rights.

The duty sought to be enforced must have two qualities:

• It must be a public duty
• It must not be discretionary duty

Continuing Mandamus is a writ of Mandamus issued by the higher judicial bodies- HCs and SC in India- in general public interest asking the officer or the authority to perform its task expeditiously and independently for preventing miscarriage ofjustice.The concept of Continuing Mandamus has been discussed and dealt with in the respective cases of 1997 Vineet Narain v. Union of India and 1984 Bandhua Mukti Morcha v. Union of India & Ors.

Supreme Court of India has, in an act of remarkable judicial activism, created the concept of “continuing mandamus” on policing and investigative authorities in order to ensure that criminal investigation, particularly in high-profile cases, is done without political executive using the agencies for its self interest. To further this free and fair investigation, the Supreme Court monitors investigations performed by agencies like the Central Bureau of Investigation. In 2010 in Centre for Public Interest Litigation and Ors. v. Union of India and Ors., the Supreme Court issued a continuing mandamus on the investigation by the CB1 and the Enforcement Directorate into the 2G spectrum scam.

“Continuing mandamus” allows the court to issue interim orders from time to time.

Late Justice(Retd) JS Verma says the following about the difference between the continuing mandamus in the Jain hawala case and the Black money case where the SC has set up an SIT ( special investigation team ) headed by retired Supreme Court judge: in Jain hawala case, court directed the CBI to keep the court apprised of the investigation but the court didn’t participate in the investigation. It only monitored the case when a PIL was filed that the CBI was not investigating the case properly. Court was not one of the investigators. SIT in black money case with a SIT headed by a retired judge raises uncomfortable questions. The presence of a judge in the investigation might make the accused think the case is already weighed against him. Court should only monitor the investigations. Not take over the investigations.

The criticism of continuing mandamus is that it confuses the chain of command as the executive i made to be accountable to both the judiciary and the legislature; it violates the principle of separation of powers; courts without competence for execution and investigation take up the work and so on. However, it is resorted to very rarely.

Prohibition: A writ of prohibition is issued to an inferior court or semi-judicial body (tribunal), preventing the latter from exercising jurisdiction which does not belong to it. When a semi­judicial body acts without or in excess of jurisdiction, or in violation of rules or law, a writ of prohibition can be issued. It is generally issued before the trial of the case. While mandamus commands activity, prohibition commands inactivity, it is available only against judicial or quasi-judicial authorities and is not available against a public officer who is not vested with judicial functions.

Certiorari: In Latin, it means 'to be informed of or “to be ascertained". It refers to the order a court issues to a lower court or semi-judicial body to transfer the case to another court of semi­judicial body. The reason is that the original body does not have the jurisdiction or there are irregularities involved. The higher court can quash a portion or total of the proceedings that have already taken

place. Certiorari is issued after the proceedings have commenced.

Essentially, it is a writ issued by a superior court and is directed to one of inferior jurisdiction, commanding the latter to certify and return to the former-the record in the particular case.

It is a writ with the same scope as prohibition. It is issued after proceedings begin so as to quash the proceedings and transfer the case to a competent court. If the judgement has already been given, certiorari writ is issued to quash it.

The following are the circumstances under which prohibition and certiorari are issued:

• When the judicial body does not have jurisdiction

• Exercises excessive jurisdiction
• Natural justice is violated
• Acts on the basis of a law that is itself struck down

Quo Warranto: It means ' by what authority?’ The writ of quo warranto enables enquiry into the legality of the claim which a person asserts, to a public office and to oust him from such position if he is holding it illegally and without valid credentials. The holder of the office has to show to the court under what authority he holds the office. It is issued when

• the office is of public and of a substantive nature
• created by statute or by the Constitution itself, and
• the respondent has asserted his claim to the office.*

It can be issued even though he/she has not assumed the charge of the office. The fundamental basis of the proceeding of quo warranto is that the public has an interest to see that a lawful claimant occupies a public office. It is not available against a ministerial'office.

Supreme Court set aside J. Thomas' appointment as Central Vigilance Commissioner ( CVC) in 2010 on a petition in a PIL case in 2010 with the writ of quo warranto and certain other conditions.

Article 33: Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,-

1. Members of the Armed Forces; or
2. Members of the Forces charged with maintenance of public order; etc
3. persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or
4. persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c),be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them

Article 34: Restriction on rights conferred by this Part while martial law is in force in any'area

Article 35: Legislation to give effect to the provisions of this Part.

Welfare provisions of Part III of the Constitution are included in Art. 15, Art. 16, Art. 17, Art.23, Art.24, and Art.30.

Fundamental Rights and National Emergency

Under the Indian Constitution, national emergency can be imposed by the President when the national security is threatened( Art.352).Such proclamation impacts on the FRs in the following way

Art.358

Art.358 comes into effect immediately after the proclamation of National Emergency. Article 19 is suspended when a Proclamation of Emergency is made on grounds of war or external aggression . That is,, if the proclamation is on grounds of armed rebellion" Art.19 can not be suspended under Art.358.

Art. 359

Art.359 suspends the enforcement of the rights conferred by Part III during emergencies. It suspends the right to move any court for the enforcement of such of the Part III rights (except articles 20 and 21) as may be mentioned in the President’s order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.

Such order should be laid before each House of Parliament.

It must be clearly seen that Art.359 suspends the enforcement and not the right itself.

Constitution was amended by Constitution (Forty-Fourth) Amendment Act 1978 and it was provided by article 359-1A that articles 20 and 21 cannot be suspended when a proclamation of emergency is in operation.

NCRWC and Fundamental Rights

The National Commission to Review the Working of the Constitution (NCRWC) that was set up in 2000 by the Union Government, submitted its report of recommendations in 2002 and sought to strengthen the Fundamental Rights in the following ways

• freedom of speech and expression( Article 19 ) should be amplified to explicitly provide for freedom of the press and other media
• Art. 19 should be expanded to incorporate right to information .
• right to privacy
• right to compensation if a person is illegally deprived of his right to life or liberty'
• right to leave and return to India
• right not be preventively detained, under any circumstances, for more than six months
• no suspension of fundamental rights to freedom of religion or right to move the Supreme Court (habeas corpus) under Emergency ( Article 352).
• Article 300-A of the Constitution be amended to ensure that "no deprivation or acquisition of agricultural, forest etc land belonging to or customarily used by the Scheduled Castes and the Scheduled Tribes shall take place except by authority of law which provides for suitable rehabilitation scheme before taking possession of such land."

Important ConstiFution amendments to FRs

Changes in, Fundamental Rights, Directive Principles and Fundamental Duties require a Constitutional amendment which has to be passed by a special majority of both houses of the Parliament.          '           ~          .

• Art. 15 and 16 were amended for empowerment of the SC, ST and OBC communities-, the 1^st and 93rd Amendment Act.
• The right to property was originally included as a fundamental right. However, the 44th Amendment passed in 1978, revised the status of property rights by removing it from Partlll
• Article 31-C, inserted into the Directive Principles of State Policy by the 25th Amendment Act of 1971 seeks to upgrade the DPSPs with reference to Arts.14 and J9.
• The right to education at elementary level has been made one of the Fundamental Rights under right to life and personal liberty by the 86th constitutional amendment of 2002.

Fundamental Rights: A retrospective

FRs have seen a mixed record. On the one hand, they are expanded by way of

-Art. 15 being strengthened

-Art. 16 being extended to OBCs

- Art.21 leading to a large group of rights under the right to life

-Due process of law being adopted in the Menaka Gandhi case in 1978 to strengthen judicial protection of rights

-Minority protection in the educational sphere being given additional attention by the amendment of Art.30.

On the other, they have been diluted in the following way

• Protection from Art.] 3 was removed by the 24^th Amendment Act
• Pressure from the DPSPs
• Removal of right to property from Part 111

Rights, Duties and DPSPs

Parts 111, IV and 1VA of the Constitution of India are closely connected and are in fact interdependent.

With the development of law in recent years, certain matters covered under Part IV relating to Directive Principles have been elevated to the status of fundamental rights, for instance, the right to education. Though this right formed a part of the Directive Principles of State Policy initially, compulsory and primary education has been treated as a part of Article 21 of the Constitution of India by the courts, which consequently led to the enactment of the Right of Children to Free and Compulsory Education Act, 2010.