Fundamental Rights ( Part-2) - Indian Polity and Governance Notes | Study Polity and Constitution (Prelims) by IAS Masters - UPSC

UPSC: Fundamental Rights ( Part-2) - Indian Polity and Governance Notes | Study Polity and Constitution (Prelims) by IAS Masters - UPSC

The document Fundamental Rights ( Part-2) - Indian Polity and Governance Notes | Study Polity and Constitution (Prelims) by IAS Masters - UPSC is a part of the UPSC Course Polity and Constitution (Prelims) by IAS Masters.
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Fundamental Rights ( Part -2)

 

  • ’Creamy layer' can be, and must be excluded.
  • There is no constitutional bar to classify the backward classes of citizens into backward and more backward categories.
  • Reservations contemplated in Clause (4) of Art. 16 should not exceed 50%, except in rare circumstances. The rule of 50% should be applied to each year. More than 50% amounts to reverse discrimination.
  • Article 16(4) d'oes not permit provision for reservations in the.matter of promotion.
  • While the rule of reservation cannot be called anti-meritarian, there are certain services and posts to which it may not be advisable to apply the rule of reservation. For example, super speciality institutions; research based institutions etc.
  • The reservation of 10% of the posts in favour of economically backward sections among the forward castes is not constitutionally invalid and is accordingly struck down. •

Nagraj case and later:Promotion in reservation for SC/ST

In 2012 April, the ruling of the Supreme Court in the case of U.P. Power Corporation Ltd. vs. Rajesh Kumar & Ors struck down provision of reservation in promotion to SCs and STs in the State of UP.

In 1992 in the case of Indra Sawhney( Mandal verdict) , the apex court held reservation in promotion is ultra vires but allowed its continuation for five years from the date of judgment as a special case. The 77th amendment to the Constitution was made in 1995 inserting.clause (4A) to Article 16 before expiry of five year which enabled the Government to continue reservation for SCs and STs in promotion.

The 81st amendment was made to the Constitution whereby clause (4/B) was incorporated in Article 16 of the Constitution which permits to treat the backlog reserved vacancies as a separate and distinct group, to which the limit of 50% may not apply. This enables the Government to launch Special Recruitment Drives to fill up the backlog vacancies "reserved for SCs/STs and OBCs.

The 82nd amendment was made to the Constitution whereby a proviso was incorporated in Article 335 of the Constitution which enabled the State to give relaxations/concessions to the SC and ST candidates in the matter of promotion.

The aforesaid Constitutional amendments were made in order to protect the interests of the backward classes including Scheduled Castes and Scheduled Tribes. The validity of all these four Amendments were challenged before the Supreme Court through various writ petitions clubbed together in M. Nagaraj & others vs. Union of India & others.

Supreme Court in its judgment in 2006 in Nagaraj case upheld the validity of all these amendments. However, the Court stipulated that if the State Government wishes to make provision for reservation to SCs .and STs in promotion, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335.

Affirmative Action and Art.15 and Art.16

Affirmative action means policies, programs and procedures that give preference to vulnerable sections of society like minorities and women in employment, educational opportunities and so on. Affirmative action is any action aimed at empowering the weak: scholarships, coaching etc. Reservation on the other hand is based on a statutory requirement for quantitative targets. It is quota based and gives no discretion to the employer. Some use affirmative action to include quota.After all, the aim is the same-.empowerment.

The instruments available for affirmative action or reservation are seats in educational institutions; various government jobs; employment opportunities in the corporate sector; bank loans, etc.

Affirmative action (positive discrimination) programmes are specifically written into the Indian Constitution.

  • Clauses (3) and (4) of Article 15 permit the making of any kind of special provision for advancing the interest of women and children and the Scheduled Castes and Scheduled Tribes and SEBCs.
  • Art. 15.5 is inserted by the 93rd Amendment Act 2005.
  • Clause (4) of Article 16 provides specifically for reservation of appointments or posts under the State in favour of backward classes of citizens.

State of Madras vs Champakam Dorairajan 1951

In this case, caste-based reservations were overruled as unconstitutional by the Supreme Court on the basis of Art.29 (2). The Madras government order that was ruled ultra vires by the apex court involved fixing the. proportion of students from various communities, including the Scheduled Castes, who could be admitted to the State's medical and engineering colleges.

Art.29(2) says that in Government or Government-aided educational institutions, a citizen could not be denied admission on grounds of religion, race, caste or language.

The First Amendment to the Constitution in 1951 was made necessary by the Champakam case judgement. Article 15(4) was added to the Constitution by the First Amendment in 1951.

Article 15(4) states: "Nothing in this Article or in Clause (2) of Article 29 shall prevent the state from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes."

93rd Amendment'Act 2005

The Constitution has been amended to include reservation of seats for Scheduled Castes, Scheduled Tribes and SEBCs in educational institutions: government, private aided and unaided educational institutions.Minority educational institutions are not covered by the amendment.

The Supreme Court judgement in Inamdar case (2005) - doing away with reservations for SC/STs in unaided private professional educational institutions was the immediate reason for the 93rd Act. The 93rd Act has gone well beyond what was required to undo the apex court verdict in Inamdar case. It widened the scope of reservations by extending it to all aided/unaided private educational institutions and not merely professional educational institutions. Minority , educational institutions are exempted as mandated by Art.30. Centre and States have to come up with enabling legislations to enforce the Act.

Clause (1) of Article 30 provides the rights to all minorities to establish and administer educational institutions of their choice. It is essential that the rights available to minorities are protected in regard to institutions established and administered by them. Accordingly, institutions declared by the State to be minority institutions under Article 30 are omitted from the operation of the 93rd Act. The right of the unaided minority institutions not to be subjected to any regulatory measures, other than those aimed at promoting the educational standards of the institution and the interests of the community concerned, has been judicially upheld in the judgements of the Supreme Court. Further, minorities need to advance educationally for socio­economic progress to take place. National integration also requires that minorities should progress educationally.

However, some concerns were raised during the debate in Parliament on the issue. One set of criticisms relates to abuse of the right by members of religious and linguistic minorities simply for profiteering. The other points out that at least the weaker sections among minorities especially Muslims and Christians of Dalit and OBC origin, should get the benefit of reservation in unaided minority educational institutions.

Article 15 of the Constitution now carries an enlarged mandate for the advancement of socially and educationally backward classes and Scheduled Castes and Scheduled Tribes. The prime purpose of this amendment is to make premier educational institutions accessible to SEBCs.

Notably, Article 15(5) makes it necessary for the State to make any special provision for the advancement of these weaker sections by legislative action and not by any executive order. So far, the government has been implementing the policy of reservation for the weaker sections through executive orders and instructions.

Central Educational Institutions (Reservation in Admission) Act, 2006

It provides for reservation in public, private aided and private unaided educational bodies as well. However, following are the exceptions

  • Institutions of Excellence because in these bodies students are not admitted for-studies. They are basically the research institutions
  • Minority educational institutions as they are Constitutionally given a separate status

 

Supreme Court Verdict 2008

A five-judge Constitution Bench headed by Chief Justice K.G; Balakrishnan upheld the law.The Supreme Court wanted the creamy layer to be excluded from the socially and educationally backward classes for reservation.The court directed that every five years, there should be a review of the lists of backward classes.

Art. 17. Abolition of Untouchability

"Untouchability" is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of "untouchability" shall be an offence punishable in accordance with law.

There are two important legislations related to Article 17:

  • The Protection of Civil Rights Act, 1955 (PCRA) and
  • The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (PAA).

Initially the Untouchability (Offences) Act, 1955, had been enacted to abolish the practice of untouchability and social disabilities arising out of it against members of the Scheduled Castes. It was amended in 1977 and is now known as the Protection of Civil Rights Act, 1955. Under the revised Act the practice of untouchability was made both cognizable (a police officer can arrest the accused person without magisterial warrant) and non-compoundable and stricter punishment was provided for the offenders.( In certain offences, the parties involved can come to a compromise while the case is under trial in the court. This is 'compoundable further action in trial is discontinued. More serious offences are called non-compoundable as they can not be withdrawn)

Art.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.

The British government had created an aristocratic class known as Rai Bahadurs and Khan Bahadurs in India . Constitution abolishes these titles for the reason that they create inequality. However, Military and academic distinctions can be conferred on the citizens of India.

The Supreme Court, in 1995, upheld the validity of awards like Bharat Ratna and Padma awards. The apex court ruled that the awards of Bharat Ratna and Padma Vibhushan could not be used by the recipient as a title and did not, accordingly, come within the Constitutional prohibition.

Art, 18 is only a Constitutional enabling provision. Laws have to be made to operationalise the general provisions found in the Article.

 

Art. 19: Right to .Freedom

The right to freedom in Article 19 guarantees the following six freedoms:

  • Freedom of speech and expression, which enable a citizen to participate in public * activities- freedom of expression includes freedom of press. Reasonable restrictions can be imposed in the interest of public order, security of State, decency, morality etc.
  • Freedom to assemble peacefully without arms, on which the state can impose reasonable restrictions in the interest of public order and sovereignty and integrity of India.
  • Freedom to form associations or unions on which the state can impose reasonable restrictions on this freedom in the interest of public order, morality and the sovereignty and integrity of India.
  • Freedom to move freely throughout the territory of India though reasonable restrictions can be imposed on this right in the interest of the general public, for example, restrictions may be imposed on movement and travelling, so as to control epidemics.
  • Freedom to reside and settle in any part of the territory of India which is subject to reasonable restrictions by the State in the interest of the general public or for the protection of the scheduled tribes from exploitation and coercion.
  • Freedom to practise any profession or to carry on any occupation, trade or business on which the state may impose reasonable restrictions in the interest of the general public. Thus, there is no right to carry on a business which is dangerous or immoral. Also, professional or technical qualifications may be prescribed for practicing any profession or carrying on any trade.

State can impose reasonable restrictions on the exercise of the above rights on grounds of.

  • sovereignty and integrity of India
  • security of State
  • public order
  • friendly relations with foreign States
  • decency or morality
  • contempt of court
  • defamation or
  •  incitement to an offence.

The courts have the power to review the reasonableness of the restrictions and strike them down if they are not justified.

Press Freedom in India

There is no separate provision guaranteeing the freedom of the press, but the Supreme Court has held that freedom of the press is included in the 'freedom of expression' under Article 19(1) (a) of the Indian Constitution.

Reasonable restrictions as mentioned above apply to freedom of press too.

The printer, publisher or editor of a newspaper who is aggrieved by an infringement of this right by a law or order may apply for relief to the Supreme Court under Art.32 or a High Court under Arts. 32 or 226 of the Constitution.

The National Commission to Review the Working of the Constitution (NCRWC) recommended that freedom of press be explicitly granted and not left to be implied in the freedom of speech.

Freedom of speech guaranteed to citizen is subordinate to the parliamentary privileges (Art.105 and 194) and in case of a clash between the two, the latter prevails.(More ahead)

'Reasonable restrictions'

Art.l9(2) says that in the interests of public order, security of state, morality etc, reasonable restrictions may be imposed ion the six freedoms mentioned in Art. 19(1). However, 'reasonableness’should be qualified with the following

  • the authority that imposes restrictions is responsible for showing that they are reasonable and
  • restrictions, to be reasonable, should satisfy the test of 'proportionality’- that is the restriction should not be excessive.

The Supreme Court has held that a reasonable restriction is one which i$ not in excess of the requirements of the case. This test involves a drawing of balance between the interest of the citizen and collective demands like national security and public-order.

Rights and restraints

The rights that spring from Article 19(1) are not absolute and unchecked. There cannot be any liberty absolute in nature and uncontrolled in operation so as to confer a right wholly free from any restraint. Had there been no restraint, the rights and freedoms may become synonymous with anarchy and disorder.

State has a duty to protect itself against certain unlawful actions and, therefore, may enact laws which would ensure such protection.

However, the restrictions must be reasonable. The test of reasonableness, whereever prescribed, should be applied on a case by case basis and no abstract standard or general pattern of reasonableness, can be laid down as applicable to all cases.

For determining the reasonableness of a restriction, factors such as the duration and extent of the restrictions, the circumstances under which and the manner in which that imposition has been authorized, the nature of the right infringed, the underlining purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the prevailing conditions at the time enter into the judicial consideration.

 

Freedom of Speech and bandhs and hartals

Freedom of speech does not include calling for forced bandhs.The Kerala High Court had in 1997 and again delivered judgements curbing the right of trade'unions and political partfes to call for forced bandh. ( Bandh and Hartal mean essentially the same. Hartal was originally a Gujarati expression meaning the closing down of shops to press a demand) The Supreme Court in 1997 upheld the Kerala High Court's order making bandhs illegal." Bandhs and hartals cost the State and private citizens by'way of loss to investments and destruction to property.The Bombay High Court     ( 2004) imposed a fine on two political parties for organising a bandh in Mumbai in 2003. The petitioners had claimed damages of Rs 50 crore on the basis of economic loss to the city for one day of stoppage.

The essence of the judicial position is this: people cannot be made to participate in bandhs under duress and that organisers of bandh "trample upon the rights of the citizens protected by the Constitution."

However, right to protest is Constitutional. The Supreme Court (2012) pronounced a landmark judgement on the incident that took place on the midnight of 4-5th June, 201 V at Ramlila Maidan, Delhi where Baba Ramdev and his supporters were carrying on a protest against corruption and prevalence of black money in India. They were agitating against the reluctance of the government to take key steps to eliminate the menace of corruption and black money.

The protest was peaceful. The Supreme Court in its judgement has upheld the right to peaceful protest to a Constitutional right. The Court observed -

“Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitation are the basic features of a democratic system. The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the government on any subject of social or national importance. The Government has to respect, and in fact, encourage exercise .of such rights. It is the abundant duty of the State to aid the exercise of right to freedom of speech as understood in its comprehensive sense and not to throttle or frustrate exercise of such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions”.

The right to peacefully protest subject to just restrictions is now an essential part of free speech and the right to assemble. Additionally, it is an affirmative obligation of the State to make that exercise of this right effective.

The judgement , however, imposes an obligation on the protesters to obey every lawful order like Section !44ofCrPC.

 

Judicial intervention and Art.19.la

-Aarakshan case

Before the release of Aarakshan, which attempts to critically analyse the system of reservation in admissions in the Indian education system, three States, namely, Punjab, Andhra Pradesh and Uttar Pradesh, decided to suspend the screening of the film in their respective States. The Director of the film approached the Supreme Court against this decision of the States. Punjab and Andhra Pradesh withdrew the order of suspension. However, Uttar Pradesh decided to defend its order.

Striking down the decision of the Uttar Pradesh Government, the Supreme Court held that even delicate issues'like reservation require public discussion and debate in'a vibrant democracy such as ours. Such a discussion on social issues spreads awareness, which is required for the effective working of the democracy.

 

Da Vinci Code

Some people had objected to screening of Da Vinci Code, as the movie was considered to hurt the Christian feelings. Allowing the screening of the film, the Madras High Court held that the issue is whether there can be a work of art or literature or a film which propounds such interpretations, and whether the public have the right to decide whether to accept or reject such alternative interpretation. The issue is whether the state is bound to protect the person whose fundamental right is sought to be violated by people who threaten to breach peace.

While the democratic credentials of India are convincing, there are certain worrying signs like the assault on freedom of speech and expression in the case of Salman Rushdie not being allowed to participate in the Jaipur Literary Festival; A.K. Ramanujan's great essay on the Ramayana being banned by the Central University of Delhi and so on.

Viswaroopam 2013

The recently released Kamal Hassan movie Vishwaroopam portrays Afghan jihadis as offering quranic prayers before waging jihad. Some Muslim groups in Tamil Nadu were offended. The government and the court banned the movie and suggested to Kamal Hassan to negotiate with the protesting Muslim groups to reach a settlement. The reason cited by the State government to stop the screening of the film till the cuts were affected was that law and order could not be maintained due to public protests. However, cinematography is in the Union List(Entry60) and the Censor Board passed and it was open to be challenged. Supreme Court in earlier verdicts said that inability to keep law and order could not be a ground for stopping the screening of the film. Apart from freedom of speech and expression and the right to do business( both being a part of Art. 19.1, the other issues involved here are whether any one has a right not to be offended; Federal issues are whether state government can stop screening of a film that has been passed by Censor Board.

Supreme court held .that it is the duty of the State government to maintain law and order and ensure the safe screening of a film that has been cleared by the expert body i.e. CBFC. In Prakash Jha’s case, the U.P. government had sought-to prohibit screening of the film ‘Aarakshan’ under the U.P. Cinemas (Regulation) Act, 1955, the Supreme Court did not accept it.

Section 66A of Information Technology Act

Section 66A, which was added to the Information Technology Act in 2008 states that any message sent out electronically that is “grossly offensive or has menacing character” with the purpose of “causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,” shall be punishable with a fine and a prison term,- which may extend to three years. The section was intended to curb the misuse of communications services such as SMS, MMS and email through the' sending of offensive messages or spam.

The Union government defended in the Supreme Court legal validity .of Section 66A of Information Technology Act, which was used by Thane police to arrest two girls from Palghar for their comments on Facebook. The SC had asked the Maharashtra government to explain the action taken against erring police officials for the manner in which the 21-year-old girls were detained in the night. It had also sought the Centre's response to Shreya Sirighal's PIL challenging the constitutional validity of Section 66A.

The ministry of communication and information and technology in its affidavit said Section 66A did not curb freedom of expression and speech guaranteed under Article 19(1) of the Constitution, as the provision did not provide absolute freedom but imposed certain restrictions. It added that the "content, effect, and the purpose of Section 66A of the IT Act clearly shows that it is regulatory in nature" and was not in breach of Article 14, 19 and 21 of the Constitution. Moreover, the advisory issued by the Centre to states not to effect arrest under Section 66A without prior permission from senior police officers would rule out unnecessary detentions in future.

The Centre provided statistics about internet users in India and the danger of internet misuse. Of the 700 million internet users worldwide, India had 125 million and accounted for 16% of spam mails/messages, which has emerged as an altogether new rhedium to spread malicious content and information.

"Thejnisuse of information technology, particularly the social media sites, has been witnessed by the country in the recent past when emails were sent, messages posted on social media sites attaching morphed images purported to certain incidents," the ministry said.

"There have beeh innumerable instances to disturb/outrage the religious/inter-community harmony and faith by uploading, publishing and transmitting highly inflammatory and objectionable information in the forms of texts, tweets, images, audio-videos and links," it said.

"The policies adopted by the internet mega companies located outside India compounded the problem by not offering information pertaining to perpetrators/offenders under certain pretexts which effectively blunts the law enforcement activities. The cyberspace therefore, offers altogether different kind of medium, opportunities as well as a perception of invisibility as compared to physical shape," the Centre said defending the regulatory mechanism under Section 66 A.                                                                          •                       I ;

The apex court had also issued notice to Delhi government , West Bengal government and Puducherry administration taking into account three other incidents of harassment last year — arrest of Jadavpur University professor Ambikesh Mahapatra, businessman Ravi Srinivasan in Puducherry and Air India employee R Jagannatha Mayank Sharma in Mumbai.

Critics points

Article 19(l)(a) of Indian Constitution guarantees freedom of speech and expression. Threat to public order, defamation, incitement to offence, contravening decency and morality, committing contempt of court, etc, are listed in Article 19(2) as grounds to limit freedom. Curbs on speech cannot go beyond this.

If the police consider a tweet or blog 'grossly offensive' or 'of menacing character', or causing 'inconvenience, annoyance, danger, obstruction or insult', they can prosecute the netizen responsible under Section 66A of the IT Act, which carries a maximum imprisonment of three years. This is certainly a breach of the fundamental right to speech. The grounds provided are not rooted in those listed in Article 19(2)( see the grounds given above). If an expression is not criminal when it is made in the physical world world, it cannot become one in the virtual world of internet. An eminet Constitutional lawyer says: Justice Markandey Katju, Chairman, Press Council, wrote in The Hindu that the Shiv Sena policy of favouring sons of the soil would lead to balkanization of the nation. Police might think this article causes 'annoyance', 'inconvenience', or that it is 'grossly offensive' to the Shiv Sena. Would it be constitutional to prosecute him for these comments as they are also on The Hindu website?

The Indian Penal Code and other provisions of the IT Act, especially after the 2008 amendment, provide enough safeguards against defamation, intentional insult leading to breaking the peace, incitement to commit offence, etc. Political criticism often causes some annoyance to someone. Should they be chargesheeted? The basic idea behind freedom of speech is to allow divergent critical views without looking into whether people are annoyed or inconvenienced.

 

Section 66A is harsh as it deprives right to life personal liberty in Art.21.

Free Speech and hate speech debate

The question of whether freedom of speech is an absolute right has been a subject of recurrent debate in the wake of recent controversies. There were serious debates over the publication of cartoons of the Prophet Muhammad in a Danish newspaper, which prompted comparisons with the landmark controversy over Salman Rushdie’s The Satanic Verses. There have been protests against artist MF Husain’s depiction of Hindu deities in the nude, and the works of a fine art student in Vadodara, whose work was considered by some to be ‘derogatory’ to certain gods. In 2013, Viswaroopam film by Kamal Hassan had to go for cuts before it could be screened in Tamil Nadu. Salman Rushdie could not take part in the Jaipur Literary Festival in 2012. These cases stirred a wider debate on the limits of freedom of expression* in an democratic , pluralist and secular country committed to protecting people’s religious sentiments.

There is the related question of incitement and hate speech, triggered by the violence against migrants in Mumbai. The tirade by Raj Thackeray, leader of Maharashtra Navnirman Sena (MNS), against north-lndian migrants in Mumbai resulted in his arrest and a gag order against him. Politicians across the board have demanded a ban on MNS. Further, the Indian Constitution justifies restrictions on freedom of speech in the interest of communal harmony and public order.

The Enlightenment thinker Voltaire is associated with the sentiment that ‘I disapprove of what you say, but 1 will defend to the death your right to say it’. The philosopher JS Mill defended freedom of speech on the basis that it is only by allowing beliefs to be criticised that we can be justified in believing that they are true. Some argue these ideas are still fundamental and that free debate, not restrictions, remains the only way of countering false or offensive views.

However, certain actions are criminalised in order to protect people from physical harm. Extending this argument to speech, it is argued that some types of speech, particularly hate speech, should be banned because they may lead to physical harm (’incitement to violence’), or because the harm these forms of speech cause is just as serious as physical harm. In a culturally diverse society, respect for others’ beliefs should take precedence. On the other hand, it is argued that if one accepts some limits to free speech on grounds of offence, it will lead to competing demands by other groups not be offended, leading to an overall loss of freedom. Furthermore, the best way to oppose speech is to use free speech against it.

Advocates of absolute freedom of speech say that in a diverse society, instead of trying to prevent offence, the right to be offensive should be seen as essential to democracy. Diverging values lead to political conflict and the only way to progress is through airing different views. Looked at this way, free speech is the basis for all other political values, as it assumes people are rational and fully capable of assessing different arguments. Those wary of protecting absolute freedom of speech take a very different view. They argue that speech is not only used to make rational arguments, but to foment hatred and stigmatise powerless minorities. Rather than free speech being egalitarian, it is too often used to oppress those ‘without a voice’.

One argument against absolute freedom of speech is that speech is never really ‘free’ but has consequences; like all rights, it comes with responsibilities. Proponents of the above argument point out, for example, that there is no right to shout ‘fire!’ in a crowded theatre. They claim that this can be extended to other areas, such as speech that incites others to harm third parties physically, which justifies banning certain inflammatory types of speech. -

Rushdie says : There is no right in the world not to be offended. In a free society, an open society, people have strong opinions, and these opinions very often clash. In a democracy, we have to learn to deal with this. And this is true about novels, it’s true about cartoons, it’s true about all these products.

 

Freedom of speech and Civil Servants

According to the Supreme Court, restrictions on freedom of speech in Art.19 (la) can be curtailed for the public servants in the interest of discipline even though such a restriction is not mentioned in Art. 19(2). Service rules are essential for disciplinte within the service- for example, criticism in public of the superiors is not permitted . The objective is not to curb freedom of speech and expression but to ensure that government servants effectively discharge their statutory duties and obligations. Thus, service rules are valid and the restrictions on freedom of speech that they carry are justified. Thus-, there is a balance to be established between the organizational functioning and the freedom of speech. Such restrictions, however, do not apply to an elected representative in an organization as he represents people. ,

The 97th amendment to the Indian constitution makes the right to form cooperative societies a fundamental right under Article 19(l)(c). The article now reads: the right to form “associations or unions or cooperative societies”.

 

Freedom of movement and residence Art.l9(ld) and (le)

The former deals with the right of the citizens to move freely throughout the country and the latter grants the right to residence. The basis for the grant of the rights is that India is one territory. Both are related and in fact follow from one another. They are not available to the foreigners like other freedoms in Art.19. The restrictions that apply to other rights in Art. 19(1) apply to them also. The following are the reasonable restrictions that additionally apply to them

  • to maintain public order: if authorities suspect the movement of persons is likely to disturb public order in a region, the right can be denied. However, the restrictions can not be oppressive or excessive.
  • for safety reasons, helmets can be prescribed for the two wheeler riders
  • externment orders against citizen to leave the territory of a state if he is an anti-social element. In June 201 1, Baba Ramdev was externed from Delhi as the police feared for law and order. A person can be externed from a state if he is intimidating witnesses in a case
  • protection of the interests of Scheduled Tribes.

 

Art.l9(lg)

It gives citizens the right to practise any profession, or to carry on any occupation , trade or business. However, there can be restrictions imposed on following grounds

  • qualifications can be prescribed for the same
  • State can monopolise business in any sector to the exclusion of any one-'partial or complete.lt may be a part of the planned economy
  • Restrictions on trading in liquor or any intoxfcating substances in public interest( prohibition)
  • Betting and gambling are not a part of 'trade’ and so can be restricted or banned
  • For food security, traders can be asked to sell a commodity at a concessional price( levy sugar)
  • Restriction on slaughter of animals.

 

Art. 20. Protection in respect of conviction for offences

  1. 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; nor be subjected to a penalty greater than that which might have been given under the law in force at the time of the commission of the offence. If a law is made in violation of the principle mentioned above, it is invalid. Thus, retrospective criminal legislation is illegal.
  2. No person shall be prosecuted and punished for the same offence more than once. That is, double jeopardy for the offence committed only once is unconstitutional.
  3. No person accused of any offence shall be compelled to be a witness against himself.

 

Ex post facto Laws (Retrospective laws)

An ex post facto law (from the Latin for "from something done afterward") or retroactive law is a law that retrospectively changes the legal consequences of acts committed prior to the enactment of the law. In reference to criminal law, it means the following

  • criminalize actions that were legal when committed or
  • aggravate a crime by bringing it into a more severe category than it was at the time it was committed or
  • change or increase the punishment prescribed for a crime or
  • alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted.

An ex post facto law may also decriminalize certain acts or alleviate possible punishments .For example by reducing punishment from rigorous imprisonment to simple imprisonment. If the retroactive law eases the punishment for a crime, it is valid.

In May 2010 the Supreme Court of India in the case "Smt. Selvi vs. State of Karnataka" held narco, polygraph (also called Lie-detector) and brain mapping tests to be unconstitutional as they violate article 20(3) of the Constitution which says that a person can not be compelled to be a witness against himself.

The Kerala High Court in 2011 held that relief under the provisions of the Protection of Women from Domestic Violence Act, 2005 could be sought against domestic violence that took place before the Act came into force. Delhi High Court also ruled the same in 2010:There is no difference between the women who were subjected to domestic violence before 2005 and those who were later, as any differentiation would tantamount to denying the right of equality before law guaranteed under Article 14 of the Constitution. It further held that legislative intent of helping women who are harassed "at the hands of their husbands and their in-laws, should be taken into consideration while interpreting the Act.

Critics however argue against the verdict on two grounds: if the Parliament wanted to make it retrospectively valid, it would have stated it expressly. Further, it is violative of Art.20.

Vodafone case

Parliament in the budget session amended retrospectively the Income-Tax Act to give clarity to tax law in the country so that it can recover Rs 11,000 crore from Vodafone. Its validity is being debated in the country and abroad.

In the Vodafone case, the SC had declared that the 1-T Department doesn’t have the jurisdiction to levy tax bn the US$ 11 billion acquisition deal between the UK telecom major and Hutchison Essarin2007.

Justice. JS Verma , former CJl opined : “It is a well-settled SC decision that the legislature has the power to amend laws retrospectively, including tax laws.”

Justice K T Thomas, former judge of the SC, clarifid that only penal statutes cannot be amended by the legislature retrospectively. Article 20 of the Constitution applies to the criminal/punitive laws. But this is not the case for fiscal statutes, which can be amended in public interest by raising revenue concerns and public interest.

Parliament made many such retrospective fiscal rules and laws to overcome the court verdicts and were upheld by the apex court.

 

Art.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. This Article prescribes a negative mandate that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The procedure established by law for deprivation of rights conferred by this Article must be fair, just and reasonable.

 

86th Amendment Act introduced Art.21a introduced right to education which says:

“21 A. the State shall provide free and compulsory education to all children of the age of six to fourteen year in such manner as the State may, by law, determine”.

However, it is only an enabling law and is to be made operational by the Government with relevant legislation. The Right of Children to Free and Compulsory Education Act or Right to Education Act (RTE), which was passed by the Indian parliament in August 2009, describes the modalities of the provision of free and compulsory education for children between 6 and 14 in India under Article 21A of the Indian Constitution. India became one of 135 countries to make education a, fundamental right of every child when the act came into force on 1 April 2010.Supreme Court upheld the law in 2012.

 

Art.21 saw many developments since the Constitution commenced.

Supreme Court in the Menaka Gandhi case (1978) applied the American jurisprudence - the principle of due process of law , to the restrictions on Art.2l on the basis of the following arguments

  1. Art. 19 and 21 can not be understood as water tight compartments and the same criteria of reasonableness as in Art. 19 must be applied for Art.21 too.
  2. Merely following the procedure established by law is not enough. The courts have the right to review and question the reasonableness of law itself'
  3. Restrictions must be reasonable Just and fair and should not be arbitrary.

Thus, Maneka Gandhi case judgement overturned the apex court verdict in the Gopalan case (1950) when the Supreme Court ruled that it was enough if the procedure was followed and that courts could not inquire into the reasonableness of the procedure .In India traditionally, procedure established by law was followed as it prevailed in Britain. But .Since the apex court judgement in 1978, presently we follow both thus strengthening judicial review.

Due process of law

Law has to be fair and reasonable. If it is not, it is liable to be struck down, even if the prescribed procedure is followed. This is the essence of the expression 'due process oflaw’ as it obtains in the US. It is discussed in the context of the protection of the right to life,- liberty and property. In. the USA, the Supreme Court scrutinizes the law as it is made and implemented to ensure that 'due process’ is followed. Otherwise, it is nullified.

Due process of law includes such constitutional requirements as adequate notice, assistance of counsel, and the rights to remain silent, to a speedy and public trial, to an impartial jury, and to confront and secure witnesses.

The constitutional guarantee of due process of law, found in the Fifth and Fourteenth Amendments to the U.S. Constitution, prohibits all levels of government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and property.

Procedural due process sees if the law is clearly written and whether it grants the

  • Right to a fair and public trial
  • Right to be present at the trial
  • Right to an impartial jury
  • Right to self-defense and so on.

Substantive due process can be the basis for pronouncing the law unconstitutional if- the law making agency has no power to make the law.

The document Fundamental Rights ( Part-2) - Indian Polity and Governance Notes | Study Polity and Constitution (Prelims) by IAS Masters - UPSC is a part of the UPSC Course Polity and Constitution (Prelims) by IAS Masters.
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