Fundamental Rights for UPSC Exam - Article 20-28
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Fundamental Rights for UPSC Exam - Article 20-28

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Polity

Fundamental Rights for UPSC Exam - Article 20-28

The topic of Fundamental Rights is very important as far as the Indian Polity is concerned. If you check out the Previous year's prelims papers for UPSC prelims for getting an idea that how important is the topic.  Questions are asked in UPSC CSE and state Civil Services exams also from the basics of fundamental rights. So, the Civil Services Aspirants must read the fundamental rights in detail. For a better understanding of the topic, our subject matter experts have prepared notes covering each and every aspect of Fundamental Rights. In this article, you will find details of fundamental articles from articles 20 to 28. 

You can also read Fundamental Rights Notes for UPSC - Article 12-19.

Fundamental Rights for UPSC Exam - Article 20-28

Fundamental Rights

  1. Right to equality (Art. 14-18)
  2. Right to freedom (Art. 19-22)
  3. Right against exploitation (Art. 23-24)
  4. Right to freedom of religion (Art. 25-28)
  5. Cultural and educational rights (Art. 29-30)
  6. Right to constitutional remedies (Art. 32)

PROTECTION IN RESPECT OF CONVICTION OF OFFENCES

Art. 20: Protection in respect of conviction of offenses

Art. 20 states that-

  1. No person shall be convicted of any offense except for violation of a law in force at the time of the commission of the Act charged as an offense, nor be subjected to a penalty greater than which might have been inflicted under the law in force at the time of the commission of the offense.
  1. No person shall be prosecuted and punished for the same offense more than once.
  2. No person accused of any offense shall be compelled to be a witness against himself.

Art. 20 guarantees to all persons (citizens and non-citizens) the 3 rights:

  1. Protection against ex-post-facto laws.
  2. Protection against double jeopardy.
  3. Protection against self-incrimination.

Protection against ex-post-facto laws

  • Ex post facto law is the law that punishes for what had been lawful when done.
  • If a particular act was not an offense according to the ‘law of the land’ at the time when the person did that act, then he cannot be convicted under a law which with retrospective effect declares that act as an offense. 
  • Even the penalty for the commission of an offense cannot be increased with retrospective effect.

Exceptions:

  • Protection under this Article is available only for offenses and their punishments under criminal law and not for any civil liability.
  • It prohibits only conviction or sentence under an ex-post-facto criminal law and not the trial.
  • The immunity under this provision cannot be claimed in case of preventive detention or demanding scrutiny from a person.

Protection against double jeopardy

  • No person can be prosecuted and punished for the same offense more than once.
  • But if a person has been let off after prosecution, without being punished, he can be prosecuted again.
  • The protection against double jeopardy is available only in proceedings before a court of law or a judicial tribunal. It is not available in proceedings before departmental or administrative authorities.

Protection against self-incrimination

  • A person accused of any offense cannot be forced to be a witness against himself. 
  • The cardinal principle of criminal law is that an accused should be presumed to be innocent till he is proved guilty.
  • It extends to both oral and documentary evidence. It does not extend to the compulsory production of material objects and exhibition of body compulsion to give thumb impression, specimen signature, blood specimens.
  • It extends only to criminal proceedings and not to civil proceedings.

 

PROTECTION OF LIFE AND PERSONAL LIBERTY

Art. 21: Protection of life and personal liberty

It states that-

“No person shall be deprived of his life or personal liberty except according to procedure established by law”.

  • Art. 21 confers on every person the fundamental right to life and personal liberty except on the ground of procedure established by law.
  • This article confers not only the Right to Life and personal liberty, but also the right to dignity and all other attributes of human personality that are necessary for the full development of a person. So, Art. 21 is the foundation stone of Part III of the Constitution.

Evolution of Art. 21:

  • Initially ‘personal liberty’ was confined to freedom of the person against unlawful detention.
  • In the Gopalan vs. State of Madras case, the majority bench of the Supreme Court advocated the view that by adopting the expression ‘procedure established by law’, Art. 21 of the Constitution had embodied the English concept of personal liberty in preference to that of American ‘due process of law’. The State can deprive the right to life and personal liberty of a person based on law. Also, personal liberty means only liberty relating to the person or body of an individual.
  • In the Menaka case (1978), the Supreme Court held that the right to life and personal liberty of a person can be deprived by law provided the procedure prescribed by the law is reasonable, fair, and just. It also ruled that ‘personal liberty is of the widest amplitude and it covers a variety of rights that go to constitute the personal liberties of a man.

Natural Justice:

  • Its objective is to impart a degree of fairness and reasonableness in decision-making and remove arbitrariness on the part of the authority.
  • Basic rules to the concept of natural justice are-
    • No person can be a judge in his own case.
    • Both sides must be heard.
    • There should be no bias and the authority must act honestly and in an impartial manner.

Inferred Rights:

  • These rights are not explicitly provided by the Constitution but have been derived by liberal interpretation of the various provisions of the Constitution.

Following rights are declared as part of Art. 21:

  • Right to live with human dignity
  • Right to a decent environment including pollution-free water and air and protection against hazardous industries.
  • Right to livelihood
  • Right to privacy
  • Right to shelter
  • Right to free legal aid
  • Right against solitary confinement
  • Right to a speedy trial
  • Right against handcuffing
  • Right against inhuman treatment
  • Right against delayed execution
  • Right to travel abroad
  • Right against bonded labor
  • Right against custodial harassment
  • Right to emergency medical aid
  • Right to timely medical treatment in the government hospital
  • Right not to be driven out of a state
  • Right to a fair trial
  • Right to prisoner to have necessities of life
  • Rights of women to be treated with decency and dignity
  • Right against public hanging
  • Right to hearing
  • Right to reputation

Procedure Established by law and the Due Process of Law

Process Established by law:

  • The ‘procedure established by law’ means the uses and practices as laid down in the statute or law.
  • Under this doctrine, the Court examines a law from the point of view of the Legislature’s competence and sees whether the prescribed procedures have been followed by the Executive.
  • The Court cannot go behind the motive of the law and cannot declare it unconstitutional unless the law is passed without procedure established by law.
  • This doctrine protects individuals against Executive actions only.

Due Process of Law:

  • ‘Due process of law’ means that the Court should examine the law, not only from the point of view of legislature’s competence but also from the broad view of the intention of the law.
  • It checks the fairness and justness of the law from the point of view of Natural Justice.
  • The Constitution of India provides for the ‘procedure established by law’ but the Supreme Court in the Maneka Gandhi case, 1978 interpreted Art. 21 to include ‘due process of law’.

Exceptions to Art. 359:

  • When a national emergency is proclaimed, then under Art. 359, the President can suspend the enforcement of any law or all the Fundamental Rights. But after 44th Amendment Act, Art. 20 and Art. 21 cannot be suspended even during Emergency, under Art. 352 and Art. 358.

 

RIGHT TO EDUCATION (ART. 21A)

“The State shall provide free and compulsory education to all children of 6 to 14 years in such manner as the State, may by law determine.”

  • The ‘Right to education has been held to be a part of Art. 21 and by 86th Amendment Act, 2002, a new article 21-A has been added.
  • The Government of India passed the Right of Children to Free and Compulsory Education (RTE) Act, 2009.
  • A series of decisions, including Mohini Jain v. the State of Karnataka, 1992, Unnikrishnan v. State of A.P., 1993, etc. culminated in converting a non-enforceable right to education in Directive Principles of State Policy into an enforceable Fundamental Right, leading to the incorporation of Art. 21-A. 

 

RTE ACT, 2009

Right of Children to Free and Compulsory Education Act, 2009 has the following provisions:

  • All children in the age group of 6-14 shall be entitled to receive free and compulsory elementary education of good quality.
  • No child shall be denied admission to schools for lack of documents.
  • The state is not only responsible for universal enrollment of children in the age group of 6-14 years but it should also ensure that children complete 8 years of elementary education. 
  • All private schools excluding minority educational institutions shall admit children in the age group of 6-14 years who come from weaker sections of society up to 25% of their enrollment free of cost. The cost of free education imparted by schools shall be compensated by the state.
  • No detention policy up to the 8th standard.
  • This act introduced a Continuous Comprehensive Evaluation System, based on curricular and extracurricular activities.

 

PROTECTION AGAINST ARREST AND DETENTION

Art. 22: Protection against arrest and detention in certain cases:

Our Constitution guarantees certain rights to the arrested person.

Punitive detention

  • The first part of Art. 22 provides specific rights to persons under punitive detention.
  • Punitive detention is the detention of a person after trial and conviction to punish him for an offense committed by him.

Rights provided under punitive detention include:

  • The right to be informed of the grounds of arrest.
  • The right to consult a lawyer of one’s own choice.
  • To be produced before the nearest magistrate within 24 hrs of arrest (excluding the holidays and time taken during the journey).
  • Right to be released after 24 hrs unless the magistrate authorizes further detention. 

Safeguards given under punitive detention are not available to:

  • Alien enemies
  • Persons arrested or detained under preventive detention law.

Preventive detention

  • The second part of the Article deals with preventive detention.
  • Preventive detention is the detention of a person without trial for a limited period when the State suspects that a person is likely to commit a crime or is a threat to the security of the State.

Provisions under preventive detention include:

  • A person detained on the ground of suspicion shall be detained for a maximum period of 3 months.
  • If the government seeks to detain the arrested person beyond 3 months, his detention must be authorized by an Advisory body, comprising the judge of the level of the High Court. Parliament is given the power to determine by law the maximum period for which a person can be detained on preventive grounds.
  • The detained person must be informed about the reason for his arrest, as soon as possible. But the State may withhold the reasons for preventive detention or such related facts if it considers that to be against the public interest to disclose.
  • The detained person must have the earliest opportunity to present his case before the authority of law.

Clause 7 of Article 22 has become the basis of many of the infamous preventive detention laws, where the general guidelines have been relaxed.

Parliament can prescribe:

  • The circumstances and the classes of cases in which a person can be detained for more than 3 months under a preventive detention law without obtaining the opinion of an advisory board.
  • The maximum period for which a person can be detained in any classes of cases under a preventive detention law.
  • The procedure to be followed by an advisory board in an inquiry.

Legislative power with regard to preventive detention

  • The Parliament has exclusive authority to make a law of preventive detention for reasons connected with the defense, foreign affairs, and security of India.
  • The Parliament as well as the state legislatures can concurrently make a law of preventive detention for reasons connected with the security of a state, the maintenance of public order, and the maintenance of supplies and services essential to the community.

Preventive detention laws made by the Parliament are:

  • 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.

 Note: No democratic country in the world has made preventive detention a part of the Constitution except India.

UNLAWFUL ACTIVITIES PREVENTION ACT

  • The Unlawful Activities (Prevention) Amendment Act, 1967 (UAPA) was passed to deal with activities directed against the ‘integrity and sovereignty of India’. 
  • In 2004, most of the provisions of POTA were incorporated in UAPA.
  • The act was amended again in 2008 after, Mumbai terror attacks, incorporating more provisions against terrorist activities and meet commitments made at the Financial Action Task Force (to combat money laundering and terrorism financing).

OTHER ACTS OF PREVENTIVE DETENTION

  • The National Security Act, 1980 (NSA) contains grounds in the name of national security (such as security of India, foreign relations, public order, maintenance of supplies and services essential to the community, etc.) to arrest a person on presumption alone.
  • The Armed Forces (Special Powers) Act, 1958, confers many extra-ordinary powers including preventive detention, to armed forces to respond at will in the ‘disturbed areas’ to maintain law and order.
  • State governments have the power to enact such laws under ‘Concurrent List’, which allows Parliament and state legislatures to pass preventive detention laws in times of peace for the “maintenance of public order or maintenance of supply and services essential to the community”. Ex. Maharashtra Control of Organised Crime Act, 1999 (MCOCA) 

Read also: Polity Questions with Explanation

RIGHTS AGAINST EXPLOITATION (ART. 23-24)

  1. Prohibition of traffic in human beings and forced labor (Art. 23)
  2. Prohibition of employment of children in factories, etc. (Art. 24)

PROHIBITION OF TRAFFIC IN HUMAN BEINGS

Art. 23: Prohibition of traffic in human beings and forced labor

  • This right is available to both citizens and non-citizens.
  • It protects the individual not only against the State but also against private persons.

Art. 23(1):

  • Art. 23(1) prohibits traffic in human beings ‘begar’ and other similar forms of forced labor and they had been declared as punishable offenses.
  • Under Art. 35, Parliament enjoys the power to prescribe punishment for violation of the above acts.
  • Traffic in human beings means engaging in slavery, servitude, and forcing people into immoral activities.
  • To prevent immoral traffic, Parliament has enacted ‘Immoral Traffic Prevention Act, 1956’.
  • Begar means involuntary labor with or without payment. All kinds of forced labor including bonded labor are forms of Begar.
  • Parliament enacted the ‘Bonded Labour System Abolition Act, 1976’ which has abolished all forms of forced labor and provided for their rehabilitation. 

Art. 23(2):

  • Art. 23(2) is an exception to Art. 23(1) whereby it confers power on the State to compel individuals to provide service like military or social service (without pay) if it is in the public interest. In imposing such service, State does not make any discriminate on grounds only of religion, race, caste, or class.

 

PROHIBITION OF EMPLOYMENT OF CHILDREN

Art. 24: Prohibition of employment of children in factories, etc.

  • Art. 24 prohibits the employment of children below the age of 14 years in hazardous industries. It does not prohibit the employment of children in non-hazardous industries.
  • The main enactment dealing with Child Labour is ‘Child Labour (Prohibition and Regulation Act, 1986)’.

Child Labour (Prohibition and Regulation) Act, 1986

It has declared mining, slate, asbestos, firecracker, matchstick, domestic work as hazardous industries in which employment of children below the age of 14 years has been prohibited.

  • In non-hazardous industries, employment of children has been regulated by fixing the minimum wages, maximum working hours, the responsibility of the employer to the welfare of the Children, etc.  

UPA Government had introduced Child Labour (Prohibition and Regulation) Amendment Bill, 2012 to incorporate the following changes:

  • All children below the age of 14 years shall not be employed in any industry including hazardous and non-hazardous industries except audio-visual, family business, and family agricultural operations.
  • The adolescent children in the age group of 14-18 years shall not be employed in hazardous industries.

Read also: Supreme Court of India Notes for UPSC

RIGHT TO FREEDOM OF RELIGION (ART. 25-28)

  • Freedom of conscience and free profession, practice and propagation of religion (Art. 25)
  • Freedom of manage religious affairs (Art. 26)
  • Freedom from payment of taxes for promotion of any religion (Art. 27)
  • Freedom from attending religious instruction or worship in certain educational institutions (Art. 28)

FREEDOM OF CONSCIENCE & FREE PROFESSION OF RELIGION

Art. 25: Freedom of conscience and free profession, practice and propagation of religion-

  • Art. 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion.
  • It covers religious beliefs (doctrines) and religious practices (rituals).
  • These rights are available to citizens as well as non-citizens.

Freedom of conscience:

  • Inner freedom of an individual to mold 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 religion.

Limitations of Freedom of Conscience:

The state can impose restrictions on the following grounds-

  • Public order, morality and health, and other provisions of Part III of the Constitution. For eg., no person can offer prayers on the busy highway or on loudspeaker offending others.
  • Regulation of any economic, financial, political, or other secular activity which may be associated with religious practice. For eg., the Right to manage temples can be regulated.
  • When there is a conflict between social welfare & reform and religious practice, religion must yield. Social evils cannot be practiced in the name of religion. The state can regulate what constitutes the essential religious practice and what does not.
  • Throwing open Hindu religious institutions of a public character to all classes of Hindus.

Art. 25 also contains 2 explanations-

Explanation I

  • The wearing and carrying of Kirpans are to be included in the profession of the Sikh religion.

Explanation II

  • The  Hindus, in this context, include Sikhs, Jains, and Buddhists.

 

FREEDOM TO MANAGE RELIGIOUS AFFAIRS

Art. 26: Freedom to manage religious affairs

  • According to Art. 26, every religious denomination or any of its section shall have the following rights:
    • 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.
    • Right to administer such property according to the law.
    • The right guaranteed by Art. 25 is an individual right while the right guaranteed by Art. 26 is the right of an “organized body” like the religious denomination or their sections.
    • The rights under Art. 26 are subject to public order, morality, and health.
  • The Supreme Court held that a religious denomination must satisfy three conditions-
    • It should be a collection of individuals who have a system of beliefs (doctrines) which they regard as conducive to their spiritual well-being.
    • It should have a common organization.
    • It should be designated by a distinctive name.

 

FREEDOM FROM TAXATION FOR PROMOTION OF A RELIGION

Art. 27: Freedom as to payment of taxes for promotion of any particular religion

  • Art. 27 lays down that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination.
  • The State should not spend the public money collected by way of tax for the promotion or maintenance of any particular religion.
  • The taxes can be used for the promotion or maintenance of all religions.
  • But a fee to control the secular administration of religious institutions can be levied.

 

FREEDOM FROM ATTENDING RELIGIOUS INSTRUCTION

Art. 28: Freedom from attending religious instruction or worship in certain educational institutions

  • Under Art. 28, no religious instruction shall be provided in any educational institution wholly maintained out of State funds. 
  • It is not applicable to an educational institution administered by the State but established under any endowment or trust, requiring imparting of religious instruction in such institution.
  • No person attending any educational institution recognized by the State or receiving aid out of State funds shall be compelled to receive that religious instruction without his consent or the consent of a guardian, in case of a minor.
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