POLITICAL AND CIVIL RIGHTS

FUNDAMENTAL RIGHTS

l	Concept of Fundamental Rights: -
	i)	The fundamental rights were supposed to be basic, natural and in alienable rights of the man. Where there are rights there are certain limitations. With time it became the most important thing to protect the rights and liberties of the people to be protected from governmental action.
	ii)	The fundamental rights in India has its roots in the preamble which the people of India have given to themselves and apart from guaranteeing all that, it also safeguards the interests of the minorities and tries to keep away discrimination, guaranteeing religious freedom and protecting other cultural rights.
l	Fundamental Rights In India
	i)	The framers of the constitution have tried to strike a balance between the rights of the people and the society and the courts have also had a tough time interpreting them.
	ii)	Though it was said earlier that the fundamental rights were mutually exclusive but now the courts have held that some of the rights are not mutually exclusive.
l	Justiciability Of Fundamental Rights
	i)	Article 13 makes the fundamental rights justiciable. It is because of this Article that the fundamental rights cannot be infringed by the government.

RIGHT TO EQUALITY ARTICLE 14 to 18

l	Right to equality will encompass :
	i)	Equality before law-Article 14
	ii)	Prohibition on the grounds of religion ,race, caste, sex or place-Article 15
	iii)	Equal opportunity in matters of employment-Article 16
	iv)	Abolition of titles-Article 18
l	Right to equality Article 14:-
	i)	According to the Article all persons who are in the similar circumstances are to be treated alike in respect to both privileges conferred and the liabilities imposed. It however does not forbid different treatment of unequals. All persons are not equal in all respects and they cannot be treated at par with every body. Thus, would only result in unequal treatment (e.g. the reservation we have for the various classes of people is one such example of giving different treatment for unequal).
	ii)	Right to equality has been recognised as the Basic Structure of the Constitution held in Indra Swahney v. Union of India A.I.R. 2000
	ii)	Article14 does not allow classification of persons into groups that are treated differently but does not forbid differentiation on the grounds of reasonable classification.
	iv)	According to the new approach of Article14; Article 14 strikes at the arbitrariness of the state action and ensures fairness and equality of State action. The principle of reasonableness is an essential element of equality. Any arbitrary or those actions which are unreasonable are as such discriminatory.
	v)	In Vishaka v. State of Rajasthan, A.I.R. 1997 Article14 was invoked to prohibit sexual harassment of women in their workplace on grounds of violation of the right to gender equality.
l	Probation of discrimination on grounds of religion, race, caste sex or place of birth-Article15
	i)	The State may provide special provisions in favour of women and children.
	ii)	Indra Swahney v. Union of India the court held that other that in extraordinary cases reservation should not exceed 50%. Caste should not be the yardstick for social or economic backwardness (SEBC. Socially and educationally backward classes) within the SEBC further classification between backward and more backward is however permissible.
l	Equal opportunity in matters of Employment-Article 16
	i)	Right to Equality is guaranteed by Article14, Article 16 gives Equality of Opportunity in matters relating to appointment or employment in offices under the State.
l	Abolition of titles-Article 18
	i)	Untouchability is abolished and its practice in any form is punishable by law.
l	Abolition of titles-Article 18
	i)	No titles other than military and academic shall be conferred by the state. Conferring honors on the people, like Bharat Ratna, Padma Vibhushan, and Padma Bhushan are not to be treated as a title.

RIGHT TO FREEDOM –Article19

l	Freedom of speech Article 19(1)(a);
l	Freedom to assemble peacefully Article19(1)(b);
l	Freedom to form associations or unions Article19(1)(c)
l	Freedom to move freely throughout the territory of India Article 19(1)(d);
l	To reside and settle in any part of the country Article 19(1)(e);
l	To acquire, hold and dispose off property Article 19(1)(f) (this freedom was omitted by the 44th Amendment Act 1978)
l	To practice any profession, or carry on any occupation, trade or business Article 19(1) (g).
l	These freedoms are available only to citizens. These freedoms guaranteed under Article 19 are basic freedoms which all persons should enjoy, but these freedoms do not come without certain restrictions.
l	From clause (2) to clause (6) of Article 19 the state has the right to impose certain reasonable restrictions so that the interests of the public, security of the state, public order e.t.c are protected for general welfare of the people.
l	These freedoms are restricted in matters related to the security of state, defamation, public order, decency or morality, contempt of court, incitement to an offence, sovereignty and integrity of India.
l	The freedom to assembly is restricted so as to maintain public order.
l	The freedom to form associations does not mean several people getting together or voluntarily forming an association but not at the cost of the sovereignty and integrity of India, public order or morality.
l	Wherein restrictions have been made on the freedom of movement it has to be reasonable in the interests of the general public or for the protection of the interests of the schedule tribes.
l	The freedom to trade and occupation should not jeopardize the public order or public health, economic welfare of the community.

PROTECTION IN RESPECT OF CONVICTION OF OFFENSES ARTICLE 20
Article 20 gives protection to persons with respect to conviction for offences.

l	Expost facto laws Article 20(1)
	i)	Ex-post laws are those laws which nullified and punished acts which were lawful when done. Article20 (1) prohibits all convictions or subjections to penalties after the Constitution, in respect of an ex- post facto law. It means that no one can be punished for any action which was not declared a crime when such an action was done.
l	Double Jeopardy Article 20(2)
	i)	Under Article20 (2) no person shall be prosecuted or punished for the same offence more than once. under the Indian Constitution in order to bring a person within the ambit of this Article it has to be shown that he was prosecuted before the court and punished by it for the same offence for which he is prosecuted again. There is no Constitutional bar to a second prosecution and punishment for the same unless the accused has been punished in the first instance.
l	Self IncriminationArticle20(3)
	i)	Under Article 20(3) no person shall be compelled to be a witness against himself by a person accused of an offence.
	ii)	To be a witness herein would mean to give oral or written statements against oneself in or out of the court out of compulsion.
	iii)	The prohibition is only on the person being compelled to give evidence against oneself. This however does not apply to those cases where the accused gives evidence without threat, or inducement.

PROTECTION OF LIFE AND LIBERTY ARTICLE 21

l	Article 21 gives the fundamental right to life and liberty in accordance to procedure established by law.
l	For sometime the courts were of the view that right to life does not include right to livelihood. Under Article39 (a) men and women equally have the right to adequate means of livelihood. The courts now have clearly held that right to life would include right to livelihood because no person can live without the means of living or livelihood.
l	‘Procedure established by law’ in Article 21 would mean; not mean a law which has only a semblance of law even if it is arbitrary and unreasonable. It would now mean that the procedure must satisfy certain requisites like being fair and reasonable .the procedure must not be arbitrary, unfair, and unreasonable.
l	Some of the areas which shows the widening horizon of Article21 are:-
	i)	Bandua Mukti Morcha v. Union of India A.I.R.1984 the court held that the bonded laborers were to be released and rehabilitated as it was against the principles enunciated by Article21 and also the Directive Principles of State Policy.
	ii)	In Hussain v. State of Kerala 2000 SC and Rudal Shah v. State of Bihar recognised the Right to Compensation for the violation of Article21.

PROTECTION AGAINST ARREST AND DETENTION ARTICLE 22

l	Fundamental rights can be suspended for the period the emergency is proclaimed but the rights under Article20 and 21 cannot be suspended even then.
l	Today progressive judicial interpretation of Article 21 has lead it to greater heights in terms of protecting a person’s life and liberty. The ‘procedure established by law’ could deprive a person of his right to life and liberty under Article 21. The procedure must answer to the test of reasonableness. Article 21 is the procedural Magna Carta protective of right to life and liberty and article 22 draws its strength from it.
l	Article 22 confers a few rights on the person who is arrested
	i)	Shall not be detained without being informed of the grounds of arrest.
	ii)	Right to consult a lawyer. The right to consult a lawyer is not lost if he is released on bail.
	iii)	To be produced before a magistrate within 24 hours of his arrest.
l	Cannot be detained for a period exceeding 24 hours without the authority of the court.
	i)	All these are instances of punitive detention where in a person is detained for the wrong caused by him.
	ii)	In case of preventive detention the object of this is to curtail a person’s liberty so that h is prevented from doing anything injurious.
	iii)	Preventive detention is used for the purposes like defence, foreign affairs, or the security of India.

RIGHT AGAINST EXPLOITATION

l	Prohibition of Traffic in Human Beings and Forced Labour Article 24.
	i)	There were socio economic problems that were growing out of the control which was mainly due to poverty. Lack of education and economic conditions so bad that people were willing to work for any amount of money.
	ii)	According to this article no person can be forced to work without payment, and ‘traffic in human beings’ means to buy and sell human beings like property, other forms of forced labour which includes bonded labour, and also includes immoral traffic of women.
	iii)	Bandua Mukti Morcha v. Union of India A.I.R.1984 the Supreme Court held that it was the fundamental right of every human being to live with human dignity and free from exploitation.
l	Prohibition Of Employment Of Children In Factories Article 24
	i)	Most of the India’s poor have many children and because the families feel that the family can be supported by the extra income that the child will bring in, child labour is more of an economic problem than any thing else.
	ii)	This article has been able to achieve only partial prohibition as there are millions of children in our country who are toiling their childhood away without any one even listening to their plight.
	iii)	M.C. Mehta v. State of T.N. it was seen that child labour was wide spread. In this case the directions were given by the Supreme Court in the context of employing children in the cracker and match factories of Sivakasi.
	iv)	In Bandua Mukti Morcha v. Union of India, A.I.R. 1997 SC this case was concerning the children being employed in the carpet weaving industry in U.P. The Supreme Court reiterated the direction of the earlier case and prohibited the employment of children below the age of 14 making arrangements for their education by creating a fund and providing employment to the parents or able bodied adults in the family.

RIGHT TO FREEDOM OF RELIGION ART 25 TO ART 28

l	Religion is an integral part in our lives and India being a country where many religions are followed it has been called a Secular state and the people do have a certain amount of religious tolerance but not enough to shun communal violence which is rampant. Religious tolerance is one and being fanatic is an other. We should try to maintain the secular feature of our constitution.
l	Our constitution guarantees to every person not merely to the citizens freedom to profess, practice but also to carry out religious obligations and propagate religion.
l	The state however has the authority to step in when it has to maintain public order, morality, curtail practices which are not the integral part of the religion, conversion by fraud.
l	No Religion states that prayers have to be done with the help of loud speakers or beating of drums. It was held by the Supreme Court that such practice should not adversely affect the rights of others including those who are not disturbed by their activities. Not only was their liberty infringed under Article 21 people also have their rights under Article19 (1) (a) wherein they need not be subjected to sounds they do not like.

CULTURAL AND EDUCATIONAL RIGHTS ARTICLE 29 TO ARTICLE 31

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Article 29 protects the interest of minorities: - this article provides the minorities the guarantee to conserve their culture, language and their script. The state shall in no manner restrict this right.

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Article 30 gives the minorities to establish and administer educational institutions: - The state shall not discriminate against these institutions while granting aid. Article states that when the institution is granted aid by the state then no citizen shall be denied admission on basis of religion, race, caste, language. The minority institution may however reserve up to 50% of the seats of the members of its community. Wherein the institution is receiving no aid then they are free in matters of admission.

RIGHT TO CONSTITUTIONAL REMEDIES

l	Under Article 32 the right to move the Supreme Court by appropriate proceedings for the enforcement of rights conferred by way of Fundamental Rights is guaranteed.
l	This Right is remedial in nature. Since we have all the Fundamental Rights conferred to us by the Constitution, we have the remedy under Article 32 when it is infringed. This right under Article 32 cannot be taken away or abridged by an Act of the legislature unless the Constitution itself is amended.
l	Enforcement of fundamental rights
	i)	Article 32 is applicable only if there is an infringement of a fundamental right. Cases where there has been no specific violation of fundamental right also petitions under Article 32 has been entertained.
	ii)	Under Article 32 the petitioner can challenge not only the validity of the law but can also question executive action.
	iii)	The petition has an alternative under article 226, but that does not mean that the court will not grant relief under Article 32. The Supreme Court insists that when an alternative remedy is available then that remedy should be availed as extraordinary remedies should not be availed when ordinary remedy is available.
l	Who can apply
	i)	When ever there has been an infringement of a fundamental right the person aggrieved by such infraction can file a petition.
	ii)	When it is a writ of habeas corpus then any person, a relative or a friend can file a petition on behalf of the person who has been detained.
	iii)	In case of public interest litigations any member of the public having sufficient interest can file a petition for the persons against whom a legal injury has been caused by a violation of the fundamental rights are incapable of doing so as they are under poverty or socially or economically disadvantaged. Today petitions are filed by public spirited persons who take up issues like pavement dwellers, bonded labourers, child labour, and child prostitution. The court has also acted on basis of news paper reports, letters written to the court. The court has to be very careful as there are numerous people who will fritter ways the valuable time of the court with frivolous litigation.
l	Various writs
	i)	Habeas corpus: -This writ used to secure a person who has been unlawfully detained without a legal justification.
		l	Though function of this writ is to release a person unlawfully arrested or detained, the Supreme Court has widened its scope by giving relief to prisoners who are subjected to inhuman and cruel treatment in the prison. The court permits the use of this writ for protecting the various personal liberties that have been granted to persons who are arrested and prisoners under the various laws and the constitution.
	ii)	Mandamus: - mandamus is used to enforce the performance of public duties by public authorities which are imposed by law.
		l	Mandamus is issued when the government denies jurisdiction when it very well has the jurisdiction under law.
		l	The main function of this writ is to keep the public authorities within their limits of jurisdiction while carrying out their public functions. This writ can be issued to administrative bodies, legislative, judicial as well as quasi judicial bodies.
		l	A discriminatory administrative decision can be squashed by a writ of mandamus
	iii)	Certiorari: - The function of certiorari is to squash a decision already made by the lower subordinate court or a tribunal. And so it is issued when the body in question has deposed off the matter and rendered the decision.
		l	The function of certiorari is supervisory. This writ is issued when the authority is acting under an invalid law.
	iv)	Quo warranto: - This writ is used to control executive action in the areas of making appointments to public offices under relevant statutory provisions judicially.
		l	This writ protects the citizens from the holder of a public office when he is not entitled to it. This writ requires the holder of a particular public office to show under what authority he is holding that particular office. If it is found that he is not entitled to that office then the court will restrain him from holding that office and declare that office vacant.
	v)	Prohibition: - both prohibition and certiorari are remedies for the judicial control of quasi judicial bodies and administrative decisions affecting the rights.
		l	Prohibition is issued when the matter has not been disposed of but being considered by the body concerned. The function of prohibition is to prohibit the body concerned from proceeding with the matter further.

Res judicata

l	Wherein a matter has been resolved under Article 32 between two parties the same matter between the same parties cannot come up under the same Article.
l	This principle will be applicable even when the High Court has been moved under Article 226 and a fresh petition has been filed under Article 32.
l	The writ of Habeas corpus is an exception to this rule. Res judicata is not applicable for this writ. A writ of Habeas Corpus has been rejected by the High Court a petition can be filed under Article 32 under the same writ.