UPSC COURSE

LECTURE- 40

POLITY
(FUNDAMENTAL
RIGHTS)
 (2) RIGHT TO FREEDOM (19-22)
Article 19: Right to 6 democratic freedoms

19 (1) (a) : Right to freedom of speech and expression

(freedom of expression means the right to express one’s opinion by words of mouth, writing, printing,
picture, or in any other manner)

Freedom of press

Article 19-1-B: Freedom of Assembly

Guarantees all citizens of India to right to assemble peacefully & without arms but subjected to following restrictions:

•Assembly must be peaceful

•Must be unarmed
•Further reasonable restrictions can be imposed
Article 19-1-C: Freedom to form associations / Unions / Co-operative societies

•Guarantees all citizens of India (Except Armed forces, Police force, Military etc.) freedom to form associations or unions
or co-operative societies but subjected to certain restrictions in interest of sovereignty & integrity of public & state

Article 19-1-D: Freedom of Movement

•Right to move freely throughout India (Subjected to certain restrictions)

Article 19-1-E: Freedom of Residence

•Right to reside or settle in any part of the country temporary or permanent (Subjected to certain restrictions)
Article 19-1-F:

Right to acquire, hold, and dispose of property (deleted through 44th amendment)

Article 19-1-G: Right to Trade & Occupation

•Right to practice any profession, trade or business subjected to certain restrictions

 Article 20: Protection in respect of conviction for offences

No ex-post-facto Legislation: No Double Jeopardy No Self-incrimination

No Retrospective Criminal Legislation / No Ex Post Facto law

•No person shall be convicted of any offence except for “violation of law in force at the time of commission of act
charged as offence, nor to be subjected to a penalty greater than that which might have been inflicted under law in
force, at time of commission of offence”

The prohibition of conviction under an ex-post-facto law applies only to criminal laws and
not civil or tax laws.
No Double Jeopardy
•No person shall be prosecuted & punished for the same offence more than once but only in respect of
punishment inflicted by court of law or judicial tribunal

It can be punished under departmental proceedings for the same offence & then may be prosecuted in court of law

Prohibition against self-incrimination

•No person accused of any offence shall be compelled to be witness against himself
 • Protection of life and
personal liberty except
in accordance with the
procedures
established in law.

• Right to live with

human dignity, decent
environment, privacy,
free education up to
Article 21: Protection of Life 14 years etc.

& Personal Liberty

 Article 21A: Right to education

The State shall provide free and compulsory education to all children of the age of six to fourteen
years in such manner as the State may, by law, determine.

Only elementary education is a right not higher education or professional.

Note: This was present in Article 45 of the constitution. Through 86th amendment in 2002 it was
made a fundamental right.

The Right of Children to Free and Compulsory Education Act or Right to Education Act (RTE). This came
into force on April 1, 2010.
ARTICLE 22 : PROTECTION AGAINST ARREST AND DETENTION IN CERTAIN CASES

Article 22 grants protection to persons who are arrested or detained.

Detention includes, both, punitive as well as preventive detention.

Preventive detention
Punitive detention is the detention as a punishment for the crime committed by an individual.

Preventive detention

The detention made as a precautionary measure. This kind of detention can be made by the authorities even on
a slight apprehension that the person can commit a crime. It is generally made for protecting the society from
any future happening. It is not a punishment but a precaution.
 The first part of Article 22 confers the following rights on a person who is arrested or detained
under an ordinary law / Punitive Detention

Right to be informed of the grounds of arrest, consult a legal practitioner, and produce before the
magistrate within 24 hours excluding the journey time.

The second part of Article 22 grants protection to persons who are arrested or detained under a
preventive detention law.

(i) 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.

(ii) The grounds of detention should be communicated to the detenu. However, the facts considered to be
against the public interest need not be disclosed.

(iii) The detenu should be afforded an opportunity to make a representation against the detention order.
 (3) RIGHT AGAINST EXPLOITATION (23-24):

Article 23: Prohibition of Traffic in Human Beings and Forced Labour

Article 23 prohibits traffic in human beings, begar

(forced labour) and other similar forms of forced
labour. Any contravention of this provision shall be
an offence punishable in accordance with law.

It protects the individual not only against the State

but also against private persons.

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.
The term ‘forced labour’ means compelling a person
to work against his will but also force arising from the
compulsion of economic circumstances, that is,
working for less than the minimum wage.

However, the State or government is permitted to

impose compulsory service for public purposes, as for
example, military service or social service, for which
it is not bound to pay.
 Article 24: Prohibition of Child Labour

Article 24 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. The
Child Labour (Prohibition and Regulation)
Amendment Act, 2016 prohibits the employment of
children below 14 years in all occupations and
processes.
 (4) RIGHT TO FREEDOM OF RELIGION (25-28)

Article 25: Freedom to Practice Own Religion

All persons are equally entitled to

freedom of conscience,

the right to freely

profess

practice

And propagate religion.

•The implications of this are:

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

•Restrictions:

These rights are subject to public order, morality, health

The State is permitted to regulate or restrict any economic, financial, political or other secular activity
associated with religious practice.
 Article 26: Freedom to Manage Religious Affairs

(a) Right to establish and maintain institu-tions for religious and charitable purposes;

(b) Right to manage its own affairs in matters of religion;

(c) Right to own and acquire movable and immovable property; and

(d) Right to administer such property in accordance with law.

•Restrictions:

These rights are subject to public order, morality, health

Article 25 guarantees rights of individuals, while Article 26 guarantees rights of religious

denominations or their sections.
 Article 27: Freedom from Taxation for Promotion of a Religion

No person shall be compelled to pay any

taxes, the proceeds of which are
specifically appropriated in payment of
expenses for the promotion or
maintenance of any particular religion or
religious denomination
ARTICLE 28 : FREEDOM AS TO ATTENDANCE AT RELIGIOUS INSTRUCTION OR RELIGIOUS WORSHIP IN
CERTAIN EDUCATIONAL INSTITUTIONS

1) No religious instruction shall be provided in any

educational institution wholly maintained out of
State funds.

2) However, this provision shall not apply to an

educational institution administered by the State
but established under any endowment or trust

3) Educational institution recognised by the State- Partially allowed

4) Receiving aid out of State funds - Partially allowed

 (5) CULTURAL AND EDUCATIONAL RIGHTS (29-30)

Article 29: Protection of Interests of Minorities

Article 29 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.

Further, no citizen shall be denied admission into any

educational institution maintained by the State or
receiving aid out of State funds on grounds only of
religion, race, caste, or language.

Minority - religious minorities as well as linguistic minorities.

Supreme Court – This rights given to majority as well.

Article 30: Right of Minorities to Establish and Administer Educational Institutions

Article 30 grants the following rights to minorities, whether religious or linguistic:

(a) 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 institution managed by a minority.

The compensation amount fixed by the State for the

compulsory acquisition of any property of a minority
educational institution shall not restrict or abrogate
the right guaranteed to them. (Market price). This
provision was added by the 44th Amendment Act of 1978
It is to be noted that Article 30 grants protection only
to minorities (religious or linguistic) and does not
extend to any section of citizens (as under Article 29).

Minorities- Not defined in the constitution.

 (6) Article 32: Right to Constitutional Remedies

Rights are meaningless if there is no mechanism to ensure their enforcement in case of

violation. Article 32 provides such a mechanism to the citizens to approach the Supreme Court
directly for the enforcement of their Fundamental Rights.

For this reason, Dr B.R Ambedkar called Article 32 as the most important article of the
Constitution. It is the very soul of the Constitution and the very heart of it’.

The Supreme Court has the power to issue directions or orders or writs for the enforcement of any
of the fundamental rights.

The writs issued may include habeas corpus, mandamus, prohibition, certiorari and quo-warranto.

The Supreme Court and High Courts can issue writs.

 HABEAS CORPUS: (TO PRODUCE THE BODY).

It is an order issued by the court to a person who has detained another person, to produce the body of the latter before
it. Hence this is against arbitrary detention. This can be issued to a private person or public authorities.

Thus, Habeas corpus writ is called bulwark of individual liberty against arbitrary detention
 Mandamus: (To Command)

Issued to a public official asking him to perform his

official duties that he has failed or refused to perform.
(this cannot be issued against President or Governor or CJ
of a HC or against any private person)
 Prohibition: (to forbid):

Issued by a higher court to a lower court or tribunal to prevent

the latter from exceeding its jurisdiction or usurping a
jurisdiction that it does not possess.

Certiorari (To be certified or to be informed):

Issued by a higher court to a lower court or tribunal either to

transfer case pending with the latter to it or to squash the order
of the latter in a case.
 Quowarranto (By what Authority?)

It is issued by a court to enquire into the legality of claim of a person to a public office.
Article 33:
The Parliament is empowered to abrogate the fundamental
rights of the members of armed forces, Para-military
forces, police forces, intelligence agencies and other related
agencies.
 Article 34:

This provides for the restriction of the fundamental rights while martial law is in force in any area within
the territory of the country.

The concept of martial law has been borrowed from the English
common law. However, the term has not been defined
anywhere in the Constitution.

It refers to a situation where civil administration is run by the

military authorities according to their own rules and
regulations framed outside the ordinary law. It thus implies the
suspension of ordinary law and the government by military
tribunals.
Article 35:
The Parliament makes laws to give effect to certain specified fundamental rights shall vest only in Parliament and
not in the state legislature. Example- Article 17

Note- The Parliament can empower the lower courts (Other than Supreme Court and High Courts) to issue
directions, orders, and writs of all kinds for the enforcement of the fundamental rights.