Article 22 – Safeguard against arbitrary arrest and detention
Safeguards enjoyed by arrested person -~> laid down in DK Basu case 1996:
Right to be informed of the grounds of arrest.
Right to consult & to be defended by a legal practitioner of his choice.
Right to be produced before a Magistrate within 24 hours, excluding the journey time.
Right to be released after 24 hours unless the magistrate authorizes further detention.
Punitive Detention
Punish for an offence committed after trial and conviction in a court (postpaid!).
Preventive Detention
Detention without trial for a limited period.
Safeguards enjoyed by detained person:
- Can’t be detained for more than three months.
- Detention beyond three months required permission of Advisory body, comprising judge of the level of High Court.
- Detained person must be informed about the reason of his arrest, information ; withheld for public interest.
Article 23 - Prohibition of traffic in human beings and forced labour.
Traffic in human beings, begar and other similar forms of forced labour ; prohibited.
State can impose compulsory service for public purposes.
Traffic in human beings ; means selling and buying of men, women, and children, also includes work like prostitution, devadasis and slavery.
Begar ; involuntary work without payment. If remuneration is less than minimum wages ; force labour. Bonded labour also prohibited.
Article 24: - Prohibition of employment of children in factories etc.
Child below 14 years should not work in any factory or mine or engaged in any other hazardous employment.
Prohibits employment of children in any factory, hazardous industry, or mines.
Statutory protection for child workers-
The Mines Act of 1952.
The Child Labour (Prohibition and Regulation) Act, 1986.
The Child Labour (Prohibition and Regulation) Act 1986, amended in 2012.
The Right to Free and Compulsory Education Act, 2009, amended in 2012.
Article 25:
Freedom of Conscience and Free Profession, Practice and Propagation of Religion
Article 25 -> All people -> equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion.
Implications of Article 25 –
Freedom of conscience: Inner freedom of an individual to mould his relationship with God 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.
Does right to propagate include right to convert -> Voluntary conversion with free consent is permitted.
Conversion by deceit, allurement or force is not permitted.
Restrictions:
Subject to public order, morality, health etc.
State is permitted to regulate or restrict any economic, financial, political, or other secular activity associated with religious practice.
Essential Religious Practice test
Safeguards such religious practices under FRs -> essential and integral to religion.
SC in Shirur Mutt case 1954 invented this doctrine.
Recently, Karnataka HC upheld Hijab ban -> Hijab is not a part of essential religious practice in Islam.
Article 25 -> Freedom to conscience, practice, profess & propagate religion.
Restriction –> public order, morality & health.
Ismail Farooqi Case 1994 -> Praying -> essential practice, but offering prayers in a mosque is not, unless it’ sreligiously significant.
Church of God case, 2000 -> using loudspeakers not an essential practise.
Nikhil Soni Case 2015: Santhara Case -> Suicide unnatural and untimely termination of life, Santhara ->peaceful, gradual path to end life, it’s not sudden.
Issues -> Courts deciding what’s essential & non-essential to religion. Courts are no expert on religion.
Solution -> Uphold the Constitution. Consult stakeholders.
Article 26 - Right to manage religious affairs of a community
Establish & maintain institutions for religious and charitable purposes
Manage its own affairs in matters of religion
Own and acquire movable and immovable property
Administer such property in accordance with law.
Article 27 – Freedom from payment of tax
To promote any religion Government can’t, impose tax on individual.
But if Government provides a specific service, it can ask for a fee from those who avail this service.
Article 28- Freedom from attending religious instruction in educational institutions.
There’re four types of educational institutions
i) Government institutions
ii) Government aided institutions
iii) Government recognized institutions
iv) Religious institutions taken over by Government. Eg. Vedic schools
Can Institutions impart religious instructions?
In Government institutions -> no religious instructions permitted.
In Government aided & recognized institutions -> some religious instructions, but pupil can’t be forced to follow instructions
No restrictions on religious institutions.
Fundamental Duties Article 51A
Rights can be defined as claims of an individual that are essential for the development of his or her own self and that are recognized by society or State. In return for every right, the society expects the citizens to do certain things which are collectively known as Duties.
Fundamental Rights
Rights guaranteed by the Constitution to the citizens.
Covered under Part III of the Constitution mentions Fundamental Right
Articles 12 to 35 deal with Fundamental Rights
Borrowed from US Constitution (Bill of Rights)
Confined to citizens only and do not extend to foreigners.
They are justiciable.
Fundamental Duties
• Moral and civic duties expected out of the citizens.
• Covered under Part IVA of the Constitution mentions the Fundamental Duties.
• Article 51A deals with Fundamental Duties.
• Borrowed from USSR Constitution
• Some of them are available only to the citizens while others are available to all persons whether citizens, foreigners or legal persons like corporations or companies.
• They are non-justiciable.
Significance –
Reminder to the citizens that while enjoying their rights, they should also be conscious of duties they owe to their country, their society and to their fellow citizens.
Warning against the anti-national and antisocial activities like burning the national flag, destroying public property and so on.
Serve as a source of inspiration for the citizens and promote a sense of discipline and commitment among them.
Create feeling that the citizens are no mere spectators but active participants in the realization of national goals.
Lead the citizen in the right direction.
Help the courts in examining and determining the constitutional validity of a law.
Fundamental Duties
To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
Cherish and follow the noble ideals that inspired the national struggle for freedom;
Uphold and protect the sovereignty, unity and integrity of India;
Defend the country and render national service when called upon to do so;
Promote harmony and the spirit of common brotherhood amongst all the people of India irrespective of religion, language and regional or sectional diversities and to renounce practices derogatory to the dignity of women;
Value and preserve the rich heritage of the country’s composite culture;
Protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures;
Develop scientific temper, humanism and the spirit of inquiry and reform;
Safeguard public property and to abjure violence;
Strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement; and
Provide opportunities for education to his child or ward between the age of six and fourteen years (added by the 86th Constitutional Amendment Act, 2002).
"Our Constitution tells us about our rights and also about our duties as citizens. Are we as serious about our duties as citizens as expected by our citizens, our Constitution and our people? We must establish by convention what is not written in the Constitution. We should try that if every programme, in every talk we focus on duties"
PM Modi on 70th anniversary of the adoption of the Constitution.
Universally, great emphasis has been laid on citizens’ duties.
Article 29(1) of the UDHR (Universal Declaration of Human Rights) states: “Everyone has duties to
the community in which alone the free and full development of his personality is possible.”
Many nations across the world have transformed into developed economies by embodying the principles of “responsible citizenship” — all the responsibilities and duties that citizens of a nation should exercise and respect.
The Citizens’ Almanac, issued by the US Citizenship and Immigration Services, details the responsibilities of its citizens — a copy of this document is given to every person on becoming a citizen of the country.
Singapore growth story has been fuelled by its emphasis on the relentless pursuit of duties by its citizens. Singapore has transformed from a less developed nation to a highly developed one in a short span of time.
Since ancient times, an individual’s “kartavya” — the performance of one’s duties towards society, his/her country and his/her parents — was emphasised in India.
Gandhiji said that if we all discharge our duties, rights will not be far to seek.
Rights based approach:
giving preference to rights over duties.
Can lead to more autocratic tendencies where State could supress the citizens.
It can end up entrenching existing power structures by placing the burden of “duties” upon those that are already vulnerable and marginalised.
After guarantee to all the full sum of humanity, dignity, equality, and freedom promised by the Constitution, that we can ask of them to do their duty.
Dr. Ambedkar in Constituent Assembly Debates said that the individual remains the fundamental unit of Constitution.
One did not have to successfully perform any duty to qualify as a rights bearer.
Rights act as check against rigid hierarchies of caste, religion, class etc.
Further more:
Rights and duties are complementary just like freedom and responsibility.
Direct connection between our rights and duties. Our rights are directly dependent on the duties performed by others.
Citizens are already performing their duties like abiding by the law, paying taxes, fine.
Emphasis on duty should not be at the cost of de-emphasizing rights.
Rights and Duties are meaningful in conjunction.