INDIAN CONSTITUTION Niraj Patel 9428891414 niraj pateldarshan ac

INDIAN CONSTITUTION Niraj Patel 9428891414 niraj. patel@darshan. ac. in Indian Constitution (3130007) Darshan Institute of Engineering & Technology

Introduction § This are rights guaranteed by the Constitution to all persons without any discrimination. § These uphold the equality and dignity of all individuals, larger in interest and unity of Nation. § These protect liberty and freedoms of people against any arbitrary law of legislature. § So, in short it meant to “establish the Government of laws and not of men”. § They are called fundamental in sense that they are most essential for all round development of the individuals. Indian Constitution (3130007) 3 Darshan Institute of Engineering & Technology

Fundamental Rights 1. Right to equality (Articles 14 -18) 2. Right to freedom (Articles 19 -22) 3. Right against exploitation (Articles 23 -24) 4. Right to freedom of religion (Articles 25 -28) 5. Cultural and educational rights (Articles 29 -30) 6. Right to constitutional Remedies (Articles 32) § Originally our Constitution contained one more, i. e. Right to Property(Article 31), which was deleted by 44 th Amendment of 1978. It was made a legal right under Article 300 -A. Indian Constitution (3130007) 4 Darshan Institute of Engineering & Technology

Features of Fundamental Rights § These are not absolute but qualified. (State can impose reasonable restrictions on them). § Available against any arbitrary action of state, except against private individuals. In that case, only legal remedies can be made, and not constitutional remedies. § They are defended and guaranteed by Supreme Court. § They are not permanent as it can be repeal by parliament but only by Constitutional Amendment. § They can be suspended during National Emergency(except article &). Indian Constitution (3130007) 5 Darshan Institute of Engineering & Technology

Contd. § Their application to armed forces, paramilitary forces, police forces, intelligence agencies can be restricted/repealed by parliament (Article 33). § Their application can be restricted during military rule imposed under abnormal circumstances(Article 34). Indian Constitution (3130007) 6 Darshan Institute of Engineering & Technology

Article 14 § It says “Equality before law and equal protection of laws”. § “State shall not deny any person equality before the law and should protect laws equally in the territory of Union of India”. § It is taken from British and American Constitution. § Originally ideal was developed by A. V. Dicey, British Jurist. § It indicates that “there is equal Subjection of all citizens to the ordinary law”. § It is basic feature of Constitution which cannot be destroyed even by amendments. Indian Constitution (3130007) 7 Darshan Institute of Engineering & Technology

Exception of Article 14 § Presidents of India and Governor of states (Article 361). § Publication of proceedings of Parliament & State legislature (Article 361 A). § Powers, privileges of Houses of Parliament (Article 105 & Article 194). § Foreign sovereign(rulers), ambassadors and diplomates enjoy immunity from criminal and civil proceedings. § UNO and its agencies also enjoy the same powers. § Article – 31 C is also exception to Article 14. Indian Constitution (3130007) 8 Darshan Institute of Engineering & Technology

Article 15 § It states “Prohibition of discrimination on grounds of religion, castes or place of birth”. § It clearly prohibits discrimination on any basis. § Also it prohibits restriction on access to various places of recreation, shops, restaurants, general public amenities etc. § There are some exceptions in it, Ø Reservation for children and women. Ø Special provision for upliftment of people belonging to SEBC. Indian Constitution (3130007) 9 Darshan Institute of Engineering & Technology

Article 16 § It states “Equality of opportunity in matter of Public employment”. § There should be equal opportunity for all citizens in matter relating with employment to any office under state. § In such matter, there should be no discrimination on basis of religion, race, gender, caste, descent, place of birth. § Nothing in this article shall prevent State for making any provision for reservation of any backward class of citizens, who in opinion of state is not adequately represented in the service under state. § Same also applies in matter of promotion, consequential seniority. Indian Constitution (3130007) 10 Darshan Institute of Engineering & Technology

Mandal Commission § In 1979, 2 nd commission under chairmanship of B. P. Mandal was formed to investigate conditions of Backward classes. § Commission in its report of 1980, stated 3743 caste as SEBC and recommended 27% reservation for same so that total reservation amounts to 50%, it was enforced in 1990. § Again in 1991, it was comprehended same to give priority to poorer section of OBC by enacting income criteria and also proposed 10% reservation for higher classes on basis of income (EWS) which are not covered in reservation. Indian Constitution (3130007) 11 Darshan Institute of Engineering & Technology

Supreme Court’s Review (1992) § Validated and approved 27% reservation for OBS as suggested by mandal commission in 1980. § But rejected 10% for EWS as suggested by gov. in 1991. § Certain conditions were also imposed 1. Advanced section (creamy layer) of OBC should be excluded. 2. No reservation in promotion and existing reservation should be for five years only. 3. Total reservation should not exceed 50% except in extra ordinary situations. Indian Constitution (3130007) 12 Darshan Institute of Engineering & Technology

Article 17 § It states “Untouchability is abolished and its practice in any form is forbidden”. § The enforcement of any disability arising out of “Untouchability” shall be an offense punishable by law. § The law regarding same was “the untouchability (offenses) Act, 1955 was amended in 1976 and renamed as “Protection of Civil Rights (1955) which on committing such offenses is liable for imprisonment and fine. § The person convicted for same is disqualified for election nomination in general and assembly election. Indian Constitution (3130007) 13 Darshan Institute of Engineering & Technology

Article 18 § It states on “Abolition of Titles”. § It prohibits states from conferring any title to anybody(except military or academic distinction) § It prohibits Indian citizens from accepting any title from foreign states. § A foreigner holding any office of profit or trust under state cannot accept any title from any foreign state without consent of President. § No citizens or foreigner holding any office of profit or trust under state cannot accept any present, emoluments or office from any foreign state without consent of President. Indian Constitution (3130007) 14 Darshan Institute of Engineering & Technology

Article 19 § It states “protection of certain rights regarding freedom of speech, etc”. § It guarantees following rights. 1. Right to freedom of speech & expression. 2. Right to assemble peacefully without arms. 3. Right to form association or union of cooperative societies. 4. Right to move freely throughout the territory of India. 5. Right to reside and settle in any part of the territory of India. 6. Right to practice any profession or to carry out any occupation, trade or business. Indian Constitution (3130007) 15 Darshan Institute of Engineering & Technology

Article 20 § It states “Protection in respect of Conviction for offenses”. § No person shall be (i) convicted of any offence except for violation of a law in force at the time of the commission of the act, nor (ii) subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the act. This is regarded as no Ex-Post facto law. § No double jeopardy: No person shall be prosecuted and punished for the same offence more than once. § No self-incrimination: No person accused of any offence shall be compelled to be a witness against himself. Ø However, this regarded in case of Criminal law, not in civil or tax matters. Indian Constitution (3130007) 16 Darshan Institute of Engineering & Technology

Article 21 § It states “ Protection of life and personal liberty”. § Article 21 declares that no person shall be deprived of his life or personal liberty except according to procedure established by law. § The supreme court reaffirms following rights ü Right to live with human dignity. ü Right to decent environment including pollution free water and air and protection against hazardous industries. ü Right to livelihood. ü Right to privacy. ü Right to shelter. ü Right to health. Indian Constitution (3130007) 17 Darshan Institute of Engineering & Technology

Contd. ü ü ü Right to free education up to 14 years of age. Right to free legal aid. Right against solitary confinement. Right to speedy trial. Right against handcuffing. Right against inhuman treatment. Right against delayed execution. Right to travel abroad. Right against bonded labour. Right against custodial harassment. Right to emergency medical aid. Indian Constitution (3130007) 18 Darshan Institute of Engineering & Technology

Contd. ü Right to timely medical treatment in government hospital. ü Right not to be driven out of a state. ü Right to fair trial. ü Right of prisoner to have necessities of life. ü Right of women to be treated with decency and dignity. ü Right against public hanging. ü Right to hearing. ü Right to information. ü Right to reputation. Indian Constitution (3130007) 19 Darshan Institute of Engineering & Technology

Article 21 A § It states “Right to Education”. § The state shall provide free and compulsory education to age of 6 to 14 years. § This was added by 86 th amendment Act of 2002. § Before this amendment, article 45 of Directive Principle of State policy has described similar Principle in framing the state its Policy. § Simultaneously it added new fundamental duty 51 A. § RTE Act was enacted by Parliament in 2009. Indian Constitution (3130007) 20 Darshan Institute of Engineering & Technology

Article 22 § It states “protection to persons who are arrested or detained”. Detention is of two types, namely, punitive and preventive. § Punitive detention is to punish a person for an offence committed by him after trial and conviction in a court. § Preventive detention, on the other hand, means detention of a person without trial and conviction by a court. Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future. § The article has 2 parts – first deals with ordinary laws and second on deal with preventive detention laws. Indian Constitution (3130007) 21 Darshan Institute of Engineering & Technology

Contd. § First part confers following rights for person detained under ordinary law. 1. Right to be informed of the grounds of arrest. 2. Right to consult and be defended by a legal practitioner 3. Right to be produced before a magistrate within 24 hours, excluding the journey time. 4. Right to be released after 24 hours unless the magistrate authorises further detention. Indian Constitution (3130007) 22 Darshan Institute of Engineering & Technology

Contd. § Second part confers following rights for person detained under preventive detention law. 1. The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention. The board is to consist of judges of a high court. 2. The grounds of detention should be communicated to the detenu. However, the facts considered to be against the public interest need not be disclosed. 3. The detenu should be afforded an opportunity to make a representation against the detention order. v In India, preventive detention existed even during the British rule. For example, the Bengal State Prisoners Regulation of 1818 and the Defence of India Act of 1939 provided for preventive detention. Indian Constitution (3130007) 23 Darshan Institute of Engineering & Technology

Preventive Detention Laws made so Far……. § Preventive Detention Act, 1950. Expired in 1969. § Maintenance of Internal Security Act (MISA), 1971. Repealed in 1978. § Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974. § National Security Act (NASA), 1980. § Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act (PBMSECA), 1980. § Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985. Repealed in 1995. § Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988. § Prevention of Terrorism Act (POTA), 2002. Repealed in 2004. Indian Constitution (3130007) 24 Darshan Institute of Engineering & Technology

Article 23 § This states “Prohibition of traffic of human beings and forced labour”. § It prohibits the traffic of human beings and begar and similar forms of forced labour and any contravention with this is regarded as punishable offense. § term ‘begar ’ means compulsory work without remuneration. § The expression ‘traffic in human beings’ include (a) selling and buying of men, women and children like goods; (b) immoral traffic in women and children, including prostitution; (c) devadasis; and (d)slavery. Indian Constitution (3130007) 25 Darshan Institute of Engineering & Technology

To protect the Article 23 § Immoral Traffic (Prevention) Act, 1956. § Bonded Labour System (Abolition) Act, 1976 § The Minimum Wages Act, 1948 § The Contract Labour Act, 1970 § The Equal Remuneration Act, 1976 Indian Constitution (3130007) 26 Darshan Institute of Engineering & Technology

Article 24 § It states “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 activities like construction work or railway. But it does not prohibit their employment in any harmless or innocent work. § The Child Labour (Prohibition and Regulation) Act, 1986, is the most important law in this direction. Indian Constitution (3130007) 27 Darshan Institute of Engineering & Technology

Article 25 § Article 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. § Freedom of conscience: Inner freedom of an individual to mould his relation with God or Creatures in whatever way he desires. § Right to profess: Declaration of one’s religious beliefs and faith openly and freely. § Right to practice: Performance of religious worship, rituals, ceremonies and exhibition of beliefs and ideas. § Right to propagate: Transmission and dissemination of one’s religious beliefs to others or exposition of the tenets of one’s religion. But, it does not include a right to convert another person to one’s own religion. Indian Constitution (3130007) 28 Darshan Institute of Engineering & Technology

Article 26 § It is titled as “Freedom to Manage Religious Affairs” § Right to establish and maintain institutions for religious and charitable purposes; § Right to manage its own affairs in matters of religion; § Right to own and acquire movable and immovable property; and § Right to administer such property in accordance with law. Indian Constitution (3130007) 29 Darshan Institute of Engineering & Technology

Article 27 § It is titled as “Freedom from Taxation for Promotion of a Religion” § It states that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination. § In other words, the State should not spend the public money collected by way of tax for the promotion or maintenance of any particular religion. § This provision prohibits the State from favouring, patronising and supporting one religion over the other. Indian Constitution (3130007) 30 Darshan Institute of Engineering & Technology

Article 28 § It is titled as “Freedom from Attending Religious Instruction” § It states that no religious instruction shall be provided in any educational institution wholly maintained out of State funds. § Article 28 distinguishes between four types of educational institutions: 1. Institutions wholly maintained by the State(religious instruction is completely prohibited) 2. Institutions administered by the State but established under any endowment or trust. (religious instruction is permitted) 3. Institutions recognised by the State. (permitted on a voluntary basis) 4. Institutions receiving aid from the State(permitted on a voluntary basis) Indian Constitution (3130007) 31 Darshan Institute of Engineering & Technology

Article 29 § It is titled as “Protection of Interests of Minorities” § provides that any section of the citizens residing in any part of India having a distinct language, script or culture of its own, shall have the right to conserve the same. § Article 29 grants protection to both religious minorities as well as linguistic minorities. Indian Constitution (3130007) 32 Darshan Institute of Engineering & Technology

Article 30 § It is titled as “Right of Minorities to Establish and Administer Educational Institutions” § It states that all minorities shall have the right to establish and administer educational institutions of their choice. § In granting aid, the state shall not discriminate against any educational institutions managed by a minority. Indian Constitution (3130007) 33 Darshan Institute of Engineering & Technology

Article 32 § It is titled as “Right to Constitutional Remedies”. § Considered most important of all. § It confers the right to remedies in case of violation of any fundamental rights. § This empowers the citizens to go Supreme Court for enforcement of any violated right in any area of Indian Constitution (3130007) 34 Darshan Institute of Engineering & Technology

Writs § Writ can be defined as “a form of written command in the name of a court or other legal authority to act, or abstain from acting, in a particular way”. § Supreme court under article 32 and high court under article 226 can issue writs for enforcement of fundamental rights. Indian Constitution (3130007) 35 Darshan Institute of Engineering & Technology

Habeas Corpus § Latin word which means “To have the body of”. § It is form of writ by which court order the person who has detained another person, to produce the body of latter before it. § The court then examines the cause and legality of detention, and if detention is found illegal then person is set free. § Thus it is generally made when person is arrested unjustfully. Indian Constitution (3130007) 36 Darshan Institute of Engineering & Technology

Mandamus § It means “we command”. § It is command issued by court to a public official asking him to perform his official duties that he has failed or refused to perform. § It can also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose. Indian Constitution (3130007) 37 Darshan Institute of Engineering & Technology

Prohibition § It means “to forbid”. § It is issued by higher court to inferior court or a tribunal to prevent from doing something which it is about to be doing. § This is also used to prevent the excessive jurisdiction to which it is not authorized. Indian Constitution (3130007) 38 Darshan Institute of Engineering & Technology

Certiorari § It means “to be certified or to be informed”. § It is issued by higher court to other lower court or authorities in case when there is excess of jurisdiction or error in law. § It happens when 1. There is lack of jurisdiction. 2. Acted without authority. 3. Violation of law of natural justice. 4. Violation of fundamental rights. Indian Constitution (3130007) 39 Darshan Institute of Engineering & Technology

Quo - Warranto § It means “by what authority/warrant”. § It is issued by the court to enquire into legality of claim of a person to a public office who has usurped the office. Indian Constitution (3130007) 40 Darshan Institute of Engineering & Technology