Fundamental Rights

Article 22 – Protection Against Arrest and Detention

Rights of an Arrested Person

Information Regarding Arrest

• Every arrested person has the Right to be Informed of the Grounds of Arrest as soon as possible.

Right to Legal Assistance

• Every arrested person has the Right to Consult and to be Defended by a Legal Practitioner of His/Her Choice.

Production Before Magistrate

• Every person arrested and detained must be Produced Before the Nearest Magistrate within 24 Hours of arrest, excluding the time required for the journey.
• No person shall be detained beyond this period without the Authority of a Magistrate.

Exceptions –Persons Not Entitled to These Safeguards

The above constitutional protections are Not Available to:

• • Enemy Aliens
  • Persons detained under a Law Providing for Preventive Detention

Preventive Detention

Constitutional Provision

• The Constitution empowers Parliament and the State Legislatures to enact laws relating to Preventive Detention.

Grounds for Preventive Detention

Preventive detention laws may be enacted for purposes such as:

• • Security of the State
  • Maintenance of Public Order
  • Maintenance of Essential Supplies and Services
  • Matters connected with:
    
    • Defence of India
    • Foreign Affairs
    • National Security

Nature of Preventive Detention

• Preventive Detention is a measure whereby a person is Detained Without Trial to prevent the commission of acts prejudicial to the Security, Public Order, or other constitutionally recognised interests of the State.

Right Against Exploitation (Articles 23–24)

Article 23 – Prohibition of Exploitation

Human Trafficking and Forced Labour

• Article 23 prohibits:
  
  • Traffic in Human Beings
  • Begar (Forced Labour Without Payment)
  • Other Similar Forms of Forced Labour
• Any violation of this provision is Punishable by Law.

Compulsory Public Service

• The State may impose Compulsory Service for Public Purposes.
• However, while imposing such service, the State Cannot Discriminate solely on the grounds of:
  
  • Religion
  • Race
  • Caste
  • Class

Article 24 – Prohibition of Child Labour

Protection of Children

• Article 24 prohibits the employment of Children Below 14 Years of Age in:
  
  • Factories
  • Mines
  • Any Hazardous Occupation or Employment
• This provision seeks to safeguard the Health, Safety, and Development of children.

Right to Freedom of Religion (Articles 25–28)

Article 25 – Freedom of Conscience and Religion

Religious Freedom

• Every person has the Freedom of Conscience and the right to:
  
  • Profess
  • Practise
  • Propagate
    any religion of his or her choice.

Constitutional Restrictions

• The above freedoms are subject to:
  
  • Public Order
  • Morality
  • Health
  • Other provisions of Part III (Fundamental Rights).

Power of the State

• The State may regulate or restrict Secular Activities associated with religious practice.
• It may also enact laws for:
  
  • Social Reform
  • Religious Reform
• The State may throw open Hindu Religious Institutions of a Public Character to All Classes and Sections of Hindus.

Article 26 – Freedom to Manage Religious Affairs

Rights of Religious Denominations

Subject to Public Order, Morality, and Health, every Religious Denomination has the right to:

• • Establish and Maintain Institutions for Religious and Charitable Purposes.
  • Manage Its Own Religious Affairs.
  • Own and Acquire Movable and Immovable Property.
  • Administer Such Property in accordance with Law.

Article 27 – Freedom from Religious Taxation

No Compulsory Religious Tax

• No person shall be compelled to Pay Taxes for the Promotion or Maintenance of Any Particular Religion or Religious Institution.

Article 28 – Religious Instruction in Educational Institutions

Restriction on Religious Instruction

• Religious Instruction cannot be imparted in any Educational Institution that is Wholly Maintained out of State Funds.

Cultural and Educational Rights (Articles 29–30)

Article 29 – Protection of Minority Interests

Right to Preserve Culture

• Any section of citizens having a Distinct Language, Script, or Culture has the right to Conserve and Protect it.

Protection Against Cultural Imposition

• Where a Religious or Linguistic Minority exists, the State Cannot Impose upon it a culture other than Its Own Distinct Culture.

Article 30 – Rights of Minorities to Establish Educational Institutions

Educational Rights of Minorities

• All Religious and Linguistic Minorities have the right to Establish and Administer Educational Institutions of their choice.

Protection Against Discrimination

• While granting State Aid, the Government Cannot Discriminate against a minority educational institution solely because it is Managed by a Religious or Linguistic Minority.

Acquisition of Property

• If the State Acquires the Property of a Minority Educational Institution, it must provide Appropriate Compensation in accordance with constitutional provisions.

Right to Constitutional Remedies (Article 32)

Article 32 – The Soul of the Constitution

Enforcement of Fundamental Rights

• Article 32 guarantees the Right to Constitutional Remedies for the enforcement of Fundamental Rights.

Protection Against State Action

• Fundamental Rights are enforceable not only against arbitrary actions of the Executive, but also against unconstitutional laws enacted by the Legislature.

Constitutional Importance

• Dr. B. R. Ambedkar described Article 32 as the “Heart and Soul of the Constitution”, as it empowers citizens to directly approach the Supreme Court for the protection and enforcement of their Fundamental Rights.

Constitutional Remedies and Writ Jurisdiction

Enforcement of Fundamental Rights

Power to Issue Writs

• For the Enforcement of Fundamental Rights, the Judiciary has been empowered to issue Constitutional Writs.

Constitutional Authorities

• Article 32 empowers the Supreme Court of India to issue Writs for the enforcement of Fundamental Rights.
• Article 226 empowers the High Courts to issue Writs for:
  
  • Enforcement of Fundamental Rights
  • Enforcement of Other Legal Rights

Supreme Court vs High Court

Jurisdiction under Article 32

• The Supreme Court can issue writs Only for the Enforcement of Fundamental Rights.

Jurisdiction under Article 226

• A High Court can issue writs:
  
  • For the Enforcement of Fundamental Rights
  • For the Protection of Other Legal Rights arising under ordinary law.

Territorial Jurisdiction

• The Supreme Court may issue writs against Any Person or Authority within the Territory of India.
• A High Court can issue writs only against persons or authorities falling within its Territorial Jurisdiction.

Types of Constitutional Writs

Habeas Corpus

Meaning

• Habeas Corpus literally means “To Have the Body.”

Purpose

• Issued to secure the Release of a Person Unlawfully Detained.
• The Court directs the detaining authority to Produce the Detained Person before it and justify the legality of the detention.

Against Whom

• May be issued against:
  
  • Public Authorities
  • Private Individuals unlawfully detaining another person.

Mandamus

Meaning

• Mandamus literally means “We Command.”

Purpose

• Issued to compel a Public Authority, Government Official, or Quasi-Judicial Body to perform a Public or Statutory Duty which it has failed or refused to perform.

Limitation

• Mandamus cannot be issued against:
  
  • President of India
  • Governor of a State
• In respect of the exercise of their Constitutional Powers and Duties.

Prohibition

Meaning

• A writ of Prohibition is issued by a Superior Court to an Inferior Court or Tribunal.

Purpose

• Prevents the inferior authority from Proceeding Further in a matter where it:
  
  • Exceeds its Jurisdiction, or
  • Acts Without Jurisdiction.

Nature

• Issued Before the Final Order is passed, thereby preventing an unlawful exercise of jurisdiction.

Certiorari

Meaning

• Certiorari means “To Be Certified” or “To Be Informed.”

Purpose

• Issued to Quash the Order of an Inferior Court, Tribunal, or Quasi-Judicial Authority that has acted:
  
  • Without Jurisdiction
  • In Excess of Jurisdiction
  • In Violation of Principles of Natural Justice

Nature

• Issued After the Order has been passed.

Difference between Prohibition and Certiorari

Quo Warranto

Meaning

• Quo Warranto literally means “By What Authority?”

Purpose

• Enables the Court to examine the Legal Authority under which a person occupies a Public Office.
• If the appointment is illegal, the Court may remove the person from that office.

Conditions for Issue

A writ of Quo Warranto can be issued only when:

• • The office is a Public Office.
  • The office is Created by the Constitution or a Statute.
  • The office is Substantive and Permanent, not merely temporary or contractual.
  • The appointment has been made Contrary to Constitutional or Statutory Provisions.

Limitations on Fundamental Rights

Modification for Armed Forces

Article 33

• Parliament may modify or restrict the application of Fundamental Rights to:
  
  • Armed Forces
  • Police Forces
  • Intelligence Agencies
  • Other forces responsible for National Security
• This is done to ensure:
  
  • Proper Discharge of Duties
  • Maintenance of Discipline

Protection During Martial Law

Article 34

• When Martial Law is in force in any area, Parliament may:
  
  • Indemnify persons acting under Martial Law for acts done in good faith.
  • Validate actions taken during the period of Martial Law.

Suspension During Emergency

Article 359

• During a Proclamation of National Emergency, the Enforcement of Certain Fundamental Rights may be suspended in accordance with the provisions of the Constitution.

Right to Information (RTI)

Right to Information Act, 2005

Statutory Right

• The Right to Information (RTI) was conferred through the Right to Information Act, 2005, which came into force on 12 October 2005.

Nature of the Right

• RTI is a Statutory Right, and Not a Separate Fundamental Right.
• The Act provides a mechanism for citizens to seek Information from Public Authorities.

Penalty for Delay

• The Act prescribes Penalties against Public Information Officers for Unreasonable Delay or Wrongful Denial of information.

Information Commissions

To ensure effective implementation of the Act, the following independent bodies have been established:

• • Central Information Commission (CIC)
  • State Information Commissions (SICs)

These Commissions oversee the implementation of the Right to Information Act, 2005 and decide appeals and complaints relating to access to information.