Very short question answer to be written in 75 words
Q1.How many Fundamental Rights are there under the constitution of India? Write down in very brief.
Ans- Originally, the Constitution provided for seven Fundamental Rights viz,
1. Right to equality (Articles 14–18)
2. Right to freedom (Articles 19–22)
3. Right against exploitation (Articles 23–24)
4. Right to freedom of religion (Articles 25–28)
5. Cultural and educational rights (Articles 29–30)
6. Right to property (Article 31)
7. Right to constitutional remedies (Article 32)
However, the right to property was deleted from the list of Fundamental Rights by the 44th Amendment Act, 1978. It is made a legal right under Article 300-A in Part XII of the Constitution. Soat present, there are only six Fundamental Rights.
Q2. Under what conditions the Fundamental Rights can be suspended?
Ans-Fundamental rights can be suspended during emergency subject to the provision of article 352,358 and 359 of the Indian constitution.
As per article 352,the President of India can declare emergency throughout the territory of India or of any part thereof on the breaking out of any war,external aggression or armed rebellion.
As per article 358,the moment the President declares emergency,the fundamental right under article 19 gets automatically suspended.
While Under article 359,the president may by order suspend the enforcement of all the fundamental rights except article 20 and 21, in the court of law.
Q3. Who can claim the Fundamental rights?
Ans- Rights given under Art 15, 16, 19, 29 and 30 can only be claimed by the Indian citizens. Apart from these all other fundamental rights can be claimed by Indian citizens, juristic person, legal person, Foreign nationals.
Q4.Write a note on Fundamental Duties.
Ans-
List of Fundamental Duties: Art. 51A, Part IVA of the Indian Constitution, specifies the list of fundamental duties of the citizens. It says “it shall be the duty of every citizen of India:
to abide by the constitution and respect its ideal and institutions;
to cherish and follow the noble ideals which inspired our national struggle for freedom;
to uphold and protect the sovereignty, unity and integrity of India;
to defend the country and render national service when called upon to do so;
to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional diversities, to renounce practices derogatory to the dignity of women;
to value and preserve the rich heritage of our composite culture;
to protect and improve the natural environment including forests, lakes, rivers, and wild-life and to have compassion for living creatures;
to develop the scientific temper, humanism and the spirit of inquiry and reform;
to safeguard public property and to abjure violence;
to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavor and achievement. Further, one more Fundamental duty has been added to the Indian Constitution by 86th Amendment of the constitution in 2002.
who is a parent or guardian , to provide opportunities for education to his child, or as the case may be, ward between the age of six and fourteen years.
Q.5 Why fundamental duties are important?
Ans- We should all acknowledge our responsibility to perform our fundamental duties. The importance of fundamental duties are highlighted below:
The fundamental duties enumerated in Article 51A constitute a constant reminder to the citizens that they have duties in building up a free, egalitarian, healthy and responsible society. These are expected to act as damper to reckless and anti-social activities on the part of some individuals.
India is a multi-racial and multi-religional country. Such a vast democratic country like India can prosper only when the citizens of this country respect its integrity and promotes cultural harmony.
It is important to respect womanhood and citizens of India are expected to refrain from practices that are dis-respectful towards women.
Environmental pollution has become a great cause of concern, not only for Indian, but for the entire humanity. Unless, we all take the pledge to keep our environment free from pollutants, there remains the threat of undesirable consequences.
The fundamental duties aims at safeguarding public properties.
The inclusion of providing opportunity for education for children as a Fundamental duty is a big step forward towards safeguard of human-rights and abolition of social injustices
Q6. Write down the Preamble of the Constitution of India.
Ans- The preamble to the Constitution of India is a brief introductory statement that sets out guiding people and principles of the document, and it indicates the source from which the ordinary document derives its authority, meaning, the people
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLYthis 26th day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
Q7. How many types of freedoms have been provided by Art 19(1)?
Ans- According to Art 19(1) citizens shall have right to-
Freedom of speech and expression,
Assemble peaceably and without arms,
Form associations or unions for co—operative societies,
Move freely throughout the territory of India,
Reside and settle in any part of the territory of India, and
Practice any profession, or to carry on any occupation, trade or business.
Originally, Article 19 contained seven rights. But, the right to acquire, hold and dispose of propertywas deleted by the 44th Amendment Act of 1978.
Q8. Write down the rights contained in Art 23 and 24 of the Constitution.
Article 23 prohibits traffic in human beings, beggar (forced labour) and other similar forms of forcedlabour. Any contravention of this provision shall be an offence punishable in accordance with law.This right is available to both citizens and non-citizens. It protects the individual not only against theState but also against private persons.
Article 24 prohibits the employment of children below the age of 14 years in any factory, mine orother hazardous activities like construction work or railway. But it does not prohibittheiremployment in any harmless or innocent work.
Q.9. Explain the provisions of Art 15(5) of the Constitution.
The state is empowered to make any special provision for the advancement of any sociallyand educationally backward classes of citizens or for the scheduled castes or the scheduled tribes regarding their admission to educational institutions including private educationalinstitutions, whether aided or unaided by the state, except the minority educational institutions.
The last provision was added by the 93rd Amendment Act of 2005. In order to give effect to thisprovision, the Centre enacted the Central Educational Institutions (Reservation in Admission) Act,2006, providing a quota of 27% for candidates belonging to the Other Backward Classes (OBCs) inall central higher educational institutions including the Indian Institutes of Technology (IITs) and theIndian Institutes of Management (IIMs). In April 2008, the Supreme Court upheld the validity of both,the Amendment Act and the OBC Quota Act. But, the Court directed the central government to excludethe‘creamy layer’ (advanced sections) among the OBCs while implementing the law.
SECTION - B
Short question answer to be written in 200 words
Q.10.What is the nature of Indian federalism? Discuss
Ans-Political scientists have classified governments into unitary and federal on the basis of thenature of relations between the national government and the regional governments. Bydefinition, a unitary government is one in which all the powers are vested in the nationalgovernment and the regional governments, if at all exist, derive their authority from the nationalgovernment. A federal government, on the other hand, is one in which powers are divided betweenthe national government and the regional governments by the Constitution itself and both operate intheir respective jurisdictions independentlyThe Constitution of India provides for a federal system of government in the country. The framersadopted the federal system due to two main reasons—the large size of the country and its socioculturaldiversity. They realised that the federal system not only ensures the efficient governance ofthe country but also re-conciles national unity with regional autonomy.
However, the term ‘federation’ has no where been used in the Constitution. Instead, Article 1 of theConstitution describes India as a ‘Union of States’. According to Dr B R Ambedkar, the phrase‘Union of States’ has been preferred to ‘Federation of States’ to indicate two things:
the Indianfederation is not the result of an agreement among the states like the American federation; and
thestates have no right to secede from the federation. The federation is union because it isindestructible.1
In Bommaicase16 (1994), the Supreme Court laid down that the Constitution is federal andcharacterised federalism as its ‘basic feature’. It observed: “The fact that under the scheme of ourConstitution, greater power is conferred upon the Centre vis-a-visthe states does not mean that thestates are mere appendages of the Centre. The states have an independent constitutional existence.
They are not satellites or agents of the Centre. Within the sphere allotted to them, the states aresupreme. The fact that during emergency and in certain other eventualities their powers areoverridden or invaded by the Centre is not destructive of the essential federal feature of theConstitution. They are exceptions and the exceptions are not a rule. Let it be said that the federalismin the Indian Constitution is not a matter of administrative convenience, but one of principle—theoutcome of our own process and a recognition of the ground realities”.
In fact, the federalism in India represents a compromise between the following two conflictingconsiderations17:
(i) normal division of powers under which states enjoy autonomy within their own spheres; and
(ii) need for national integrity and a strong Union government under exceptional circumstances.
The following trends in the working of Indian political system reflects its federal spirit:
(i) Territorialdisputes between states, for example, between Maharashtra and Karnataka over Belgaum;
(ii)Disputes between states over sharing of river water, for example, between Karnataka and TamilNadu over Cauvery Water;
(iii) The emergence of regional parties and their coming to power in stateslike Andhra Pradesh, Tamil Nadu, etc.;
(iv) The creation of new states to fulfil the regionalaspirations, for example, Mizoram or recently Jharkhand;
(v) Demand of the states for more financialgrants from the Centre to meet their developmental needs;
(vi) Assertion of autonomy by the states andtheir resistance to the interference from the Centre;
(vii) Supreme Court’s imposition of severalprocedural limitations on the use of Article 356 (President’s Rule in the States) by the Centre.18
Q11.“Like should be treated alike is the meaning of equality, unlike should be treated alike is not the meaning of equality.” Discuss with the help of decided cases.
Ans-Article 14 says that the State shall not deny to any person equality before the law or the equalprotection of the laws within the territory of India. This provision confers rights on all personswhether citizens or foreigners. Moreover, the word ‘person’ includes legal persons, viz, statutorycorporations, companies, registered societies or any other type of legal person.
The concept of ‘equality before law’ is of British origin while the concept of ‘equal protection oflaws’ has been taken from the American Constitution. The first concept connotes: (a) theabsence ofany special privileges in favour of any person, (b) the equal subjection of all persons to the ordinarylaw of the land administered by ordinary law courts, and (c) no person (whether rich or poor, high orlow, official or non-official) is above the law.
The second concept, on the other hand, connotes:
(a) the equality of treatment under equalcircumstances, both in the privileges conferred and liabilities imposed by the laws,
(b) the similarapplication of the same laws to all persons who are similarly situated, and
(c) the like should betreated alike without any discrimination.
Thus, the former is a negative concept while the latter is apositive concept. However, both of them aim at establishing equality of legal status, opportunity andjustice.
The Supreme Court held that where equals and unequals are treated differently, Article 14 does notapply. While Article 14 forbids class legislation, it permits reasonable classification of persons,objects and transactions by the law. But the classification should not be arbitrary, artificial orevasive. Rather, it should be based on an intelligible differential and substantial distinction.
Q12. Discuss protection in respect of conviction for offences contained under Art 20 of the Constitution. Refer to decided cases.
Ans- Article 20 grants protection against arbitrary and excessive punishment to an accused person, whethercitizen or foreigner or legal person like a company or a corporation. It contains three provisions inthat direction:
(a) No ex-post-facto law: No person shall be (i) convicted of any offence except for violation ofa law in force at the time of the commission of the act, nor (ii) subjected to a penalty greaterthan that prescribed by the law in force at the time of the commission of the act.
(b) No double jeopardy: No person shall be prosecuted and punished for the same offence morethan once.
(c) No self-incrimination: No person accused of any offence shall be compelled to be a witnessagainst himself.
An ex-post-facto law is one that imposes penalties restrospectively (retroactively), that is, upon actsalready done or which increases the penalties for such acts. The enactment of such a law is prohibitedby the first provision of Article 20. However, this limitation is imposed only on criminal laws andnot on civil laws or tax laws. In other words, a civil liability or a tax can be imposed retrospectively.
Further, this provision prohibits only conviction or sentence under an ex-post-facto criminal law andnot the trial thereof. Finally, the protection (immunity) under this provision cannot be claimed in caseof preventive detention or demanding security from a person.
The protection against double jeopardy is available only in proceedings before a court of law or ajudicial tribunal. In other words, it is not available in proceedings before departmental oradministrative authorities as they are not of judicial nature.
The protection against self-incrimination extends to both oral evidence and documentary evidence.
However, it does not extend to (i) compulsory production of material objects, (ii) compulsion to givethumb impression, specimen signature, blood specimens, and (iii) compulsory exhibition of the body.
Further, it extends only to criminal proceedings and not to civil proceedings or proceedings whichare not of criminal nature.
Q13. Explain the “safeguards against arbitrary arrest and detention” as provided by the Indian Constitution.
Ans- The Article 22 has two parts—the first part deals with the cases of ordinary law and the second partdeals with the cases of preventive detention law.
(a) The first part of Article 22 confers the following rights on a person who is arrested ordetained under an ordinary law:
(i) Right to be informed of the grounds of arrest.
(ii) Right to consult and be defended by a legal practitioner.
(iii) Right to be produced before a magistrate within 24 hours, excluding the journey time.
(iv) Right to be released after 24 hours unless the magistrate authorises further detention.
These safeguards are not available to an alien or a person arrested or detained under apreventive detention law.
The Supreme Court also ruled that the arrest and detention in the first part of Article 22 do notcover arrest under the orders of a court, civil arrest, arrest on failure to pay the income tax,and deportation of an alien. They apply only to an act of a criminal or quasi-criminal nature orsome activity prejudicial to public interest.
(b) The second part of Article 22 grants protection to persons who are arrested or detained undera preventive detention law. This protection is available to both citizens as well as aliens andincludes the following:
(i) The detention of a person cannot exceed three months unless an advisory board reportssufficient 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 factsconsidered to be against the public interest need not be disclosed.
(iii) The detenu should be afforded an opportunity to make a representation against thedetention order.
Article 22 also authorises the Parliament to prescribe (a) the circumstances and the classes of casesin which a person can be detained for more than three months under a preventive detention lawwithout obtaining the opinion of an advisory board; (b) the maximum period for which a person canbe detained in any classes of cases under a preventive detention law; and (c) the procedure to befollowed by an advisory board in an inquiry.
Q14. Discuss the constitutional remedies contained under Art 32 of the constitution with the help of decided cases.
Ans- The Article 22 has two parts—the first part deals with the cases of ordinary law and the second partdeals with the cases of preventive detention law.
(a) The first part of Article 22 confers the following rights on a person who is arrested ordetained under an ordinary law:
(i) Right to be informed of the grounds of arrest.
(ii) Right to consult and be defended by a legal practitioner.
(iii) Right to be produced before a magistrate within 24 hours, excluding the journey time.
(iv) Right to be released after 24 hours unless the magistrate authorises further detention.
These safeguards are not available to an alien or a person arrested or detained under apreventive detention law.
The Supreme Court also ruled that the arrest and detention in the first part of Article 22 do notcover arrest under the orders of a court, civil arrest, arrest on failure to pay the income tax,and deportation of an alien. They apply only to an act of a criminal or quasi-criminal nature orsome activity prejudicial to public interest.
(b) The second part of Article 22 grants protection to persons who are arrested or detained undera preventive detention law. This protection is available to both citizens as well as aliens andincludes the following:
(i) The detention of a person cannot exceed three months unless an advisory board reportssufficient 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 factsconsidered to be against the public interest need not be disclosed.
(iii) The detenu should be afforded an opportunity to make a representation against thedetention order.
Article 22 also authorises the Parliament to prescribe (a) the circumstances and the classes of casesin which a person can be detained for more than three months under a preventive detention lawwithout obtaining the opinion of an advisory board; (b) the maximum period for which a person canbe detained in any classes of cases under a preventive detention law; and (c) the procedure to befollowed by an advisory board in an inquiry.
Q15. Explain the judicial attitude on the relationship of the Directive Principles of State policy and the Fundamental Rights.
Ans- The justiciability of Fundamental Rights and non-justiciability of Directive Principles on the one handand the moral obligation of State to implement Directive Principles (Article 37) on the other handhave led to a conflict between the two since the commencement of the Constitution. In theChampakamDorairajancase20 (1951), the Supreme Court ruled that in case of any conflict betweenthe Fundamental Rights and the Directive Principles, the former would prevail. It declared that theDirective Principles have to conform to and run as subsidiary to the Fundamental Rights. But, it alsoheld that the Fundamental Rights could be amended by the Parliament by enacting constitutionalamendments acts. As a result, the Parliament made the First Amendment Act (1951), the FourthAmendment Act (1955) and the Seventeenth Amendment Act (1964) to implement some of theDirectives.
The above situation underwent a major change in 1967 following the Supreme Court’s judgement intheGolaknathcase21 (1967). In that case, the Supreme Court ruled that the Parliament cannot takeaway or abridge any of the Fundamental Rights, which are ‘sacrosanct’ in nature. In other words, theCourt held that the Fundamental Rights cannot be amended for the implementation of the DirectivePrinciples.
The Parliament reacted to the Supreme Court’s judgement in the Golaknath Case (1967) by enactingthe 24th Amendment Act (1971) and the 25th Amendment Act (1971). The 24th Amendment Actdeclared that the Parliament has the power to abridge or take away any of the Fundamental Rights byenacting Constitutional Amendment Acts. The 25th Amendment Act inserted a new Article 31C whichcontained the following two provisions:
1. No law which seeks to implement the socialistic Directive Principles specified in Article 39(b)22and (c)23 shall be void on the ground of contravention of the Fundamental Rightsconferred by Article 14 (equality before law and equal protection of laws), Article 19(protection of six rights in respect of speech, assembly, movement, etc) or Article 31 (right toproperty).
2. No law containing a declaration for giving effect to such policy shall be questioned in anycourt on the ground that it does not give effect to such a policy.
In the KesavanandaBharaticase24 (1973), the Supreme Court declared the above second provisionof Article 31C as unconstitutional and invalid on the ground that judicial review is a basic feature ofthe Constitution and hence, cannot be taken away. However, the above first provision of Article 31Cwas held to be constitutional and valid.
Later, the 42nd Amendment Act (1976) extended the scope of the above first provision of Article 31Cby including within its protection any law to implement any of the Directive Principles and not merelythose specified in Article 39 (b) and (c). In other words, the 42nd Amendment Act accorded theposition of legal primacy and supremacy to the Directive Principles over the Fundamental Rightsconferred by Articles 14, 19 and 31. However, this extension was declared as unconstitutional andinvalid by the Supreme Court in the Minerva Mills case25 (1980). It means that the DirectivePrinciples were once again made subordinate to the Fundamental Rights. But the Fundamental Rightsconferred by Article 14 and Article 19 were accepted as subordinate to the Directive Principlesspecified in Article 39 (b) and (c). Further, Article 31 (right to property) was abolished by the 44thAmendment Act (1978).
In the Minerva Mills case (1980), the Supreme Court also held that ‘the Indian Constitution isfounded on the bedrock of the balance between the Fundamental Rights and the Directive Principles.
They together constitute the core of commitment to social revolution. They are like two wheels of achariot, one no less than the other. To give absolute primacy to one over the other is to disturb theharmony of the Constitution. This harmony and balance between the two is an essential feature of thebasic structure of the Constitution. The goals set out by the Directive Principles have to be achievedwithout the abrogation of the means provided by the Fundamental Rights’.
Therefore, the present position is that the Fundamental Rights enjoy supremacy over the DirectivePrinciples. Yet, this does not mean that the Directive Principles cannot be implemented. TheParliament can amend the Fundamental Rights for implementing the Directive Principles, so long asthe amendment does not damage or destroy the basic structure of the Constitution.
Q.16. What is the nature of fundamental Duties?
Ans- Non-enforceable and Non-justiciable: The fundamental duties however are non-enforceable and non-justiciable in character. This means that no citizen can be punished by a court for violation of a fundamental duty. In this respect the fundamental duties are like the directive principles of the constitution in part IV. The directive principles lay down some high ideals to be followed by the state. Similarly, the fundamental duties in Art 51A, lay down some high ideals to be followed by the citizens. In both cases, violation does not invite any punishment. It is significant that the fundamental duties are placed at the end of part IV rather than at the end of part III of the constitution. While part III containing fundamental rights is justiciable, part IV containing the directive principles is not.
Conclusion: These fundamental duties are not mere expressions of pious platitudes. Courts will certainly take cognizance of laws seeking to give effect to fundamental duties.
Finally, the very fact that these duties figure in the constitution, keeps the door open for the duties to be given higher constitutional at status in future through constitutional amendments
Detail question answer to be written in 400 words
Q17. Discuss the scope of freedom of speech and expression under Art 19 (1) (a) of the Constitution. What restrictions placed on it under Art 19(2)?
Ans. Speech is God's gift to mankind. Through speech a human being conveys his thoughts, sentiments and feeling to others. Freedom of speech and expression is thus a natural right, which a human being acquires on birth. It is, therefore, a basic right. The people of India declared in the Preamble of the Constitution, which they gave unto themselves their resolve to secure to all the citizens liberty of thought and expression. This resolve is reflected in Article 19(1) (a) which is one of the Articles found in Part III of the Constitution, which enumerates the Fundamental Rights.
Meaning and Scope
Article 19(1)(a) of Indian Constitution says that all citizens have the right to freedom of speech and expression. Freedom of Speech and expression means the right to express one's own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one's idea through any communicable medium or visible representation, such as gesture, signs, and the like. This expression connotes also publication and thus the freedom of press is included in this category. Free propagation of ideas is the necessary objective and this may be done on the platform or through the press. This propagation of ideas is secured by freedom of circulation. Liberty of circulation is essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value. The freedom of speech and expression includes liberty to propagate not one's views only. It also includes the right to propagate or publish the views of other people; otherwise this freedom would not include the freedom of press.
Freedom of expression has five broad special purposes to serve:
1) It helps an individual to attain self-fulfillment.
2) It assists in the discovery of truth.
3) It strengthens the capacity of an individual in participating in decision-making.
4) It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
5) All members of society would be able to form their own beliefs and communicate them freely to others
Freedom to air one's view is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death knell to democracy and would help usher in autocracy or dictatorship. The modern communication mediums advance public interest by informing the public of the events and development that have taken place and thereby educating the voters, a role considered significant for the vivacious functioning of a democracy. Therefore, in any setup more so in a democratic setup like ours, broadcasting of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution.
The various communication channels are great spreaders of news and views and make considerable impact on the minds of readers and viewers and our known to mould public opinion on vitals issues of national importance. The freedom of speech and expression includes freedom of circulation and propagation of ideas and therefore the right extends to the citizen to use the media to answer the criticism leveled against the views propagated by him. Every free citizen has undoubted right to lay what sentiments he pleases. This freedom must, however, be exercised with circumspection and care must be taken not to trench on the rights of other citizens or to jeopardise public interest.
Freedom of Press
The fundamental right of the freedom of press implicit in the right the freedom of speech and expression, is essential for the political liberty and proper functioning of democracy. The Indian Press Commission says that "Democracy can thrive not only under the vigilant eye of legislature, but also under the care and guidance of public opinion and the press is par excellence, the vehicle through which opinion can become articulate."
In the case of BrijBhushan v. State of Delhi (AIR 1950 SC 129), the validity of censorship previous to the publication of an English Weekly of Delhi, the Organiser was questioned. The court struck down the Section 7 of the East Punjab Safety Act, 1949, which directed the editor and publisher of a newspaper “to submit for scrutiny, in duplicate, before the publication, till the further orders, all communal matters all the matters and news and views about Pakistan, including photographs, and cartoons", on the ground that it was a restriction on the liberty of the press
In Sakal Papers Ltd. v. Union of India,] the Daily Newspapers (Price and Page) Order, 1960, which fixed the number of pages and size which a newspaper could publish at a price was held to be violative of freedom of press and not a reasonable restriction under the Article 19(2). Similarly, in Bennett Coleman and Co. v. Union of India, the validity of the Newsprint Control Order, which fixed the maximum number of pages, was struck down by the Court holding it to be violative of provision of Article 19(1)(a) and not to be reasonable restriction under Article 19(2). The Court struck down the plea of the Government that it would help small newspapers to grow.
Right to Information
The right to know, 'receive and impart information has been recognized within the right to freedom of speech and expression. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose.
Grounds of Restrictions
Clause (2) of Article 19 contains the grounds on which restrictions on the freedom of speech and expression can be imposed-
1) Security of State: Under Article 19(2) reasonable restrictions can be imposed on freedom of speech and expression in the interest of security of State. The term "security of state" refers only to serious and aggravated forms of public order e.g. rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray.
2) Friendly relations with foreign states: This ground was added by the constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly state, which may jeopardise the maintainance of good relations between India, and that state.
3) Public Order: This ground was added by the Constitution (First Amendment) Act. 'Public order' is an expression of wide connotation and signifies "that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established."
4) Decency or morality: The words 'morality or decency' are words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality.
5) Contempt of Court: Restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court. 6) Defamation: A statement, which injures a man's reputation, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating to defamation is still uncodified in India and subject to certain exceptions.
7) Incitement to an offence: This ground was also added by the constitution (First Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right to incite people to commit offence. The word 'offence' is defined as any act or omission made punishable by law for the time being in force.
Conclusion
The right to freedom of speech and expression is one of the most important fundamental right. It includes circulating one's views by words or in writing or through audiovisual instrumentalities, through advertisements and through any other communication channel. It also comprises of right to information, freedom of press etc. Thus this fundamental right has a vast scope.
Q18. The right to life and personal liberty has undergone many changes and innovations from Gopalan to the recent case law. Critically evaluate the innovations.
Ans- Article 21 declares that no person shall be deprived of his life or personal liberty except according toprocedure established by law. This right is available to both citizens and non-citizens.
In the famous Gopalancase11 (1950), the Supreme Court has taken a narrow interpretation of theArticle 21. It held that the protection under Article 21 is available only against arbitrary executiveaction and not from arbitrary legislative action. This means that the State can deprive the right to lifeand personal liberty of a person based on a law. This is because of the expression ‘procedureestablished by law’ in Article 21, which is different from the expression ‘due process of law’contained in the American Constitution. Hence, the validity of a law that has prescribed a procedurecannot be questioned on the ground that the law is unreasonable, unfair or unjust.
Secondly, theSupreme Court held that the ‘personal liberty’ means only liberty relating to the person or body of theindividual. But, in Menakacase12 (1978), the Supreme Court overruled its judgement in the Gopalancase by taking a wider interpretation of the Article 21. Therefore, it ruled that the right to life andpersonal liberty of a person can be deprived by a law provided the procedure prescribed by that lawis reasonable, fair and just. In other words, it has introduced the American expression ‘due process oflaw’. In effect, the protection under Article 21 should be available not only against arbitraryexecutive action but also against arbitrary legislative action. Further, the court held that the ‘right tolife’ as embodied in Article 21 is not merely confined to animal existence or survival but it includeswithin its ambit the right to live with human dignity and all those aspects of life which go to make aman’s life meaningful, complete and worth living. It also ruled that the expression ‘Personal Liberty’in Article 21 is of the widest amplitude and it covers a variety of rights that go to constitute thepersonal liberties of a man.
The Supreme Court has reaffirmed its judgement in the Menakacase in the subsequent cases. It hasdeclared the following rights as part of Article 21:
(a) Right to live with human dignity.
(b) Right to decent environment including pollution free water and air and protection againsthazardous industries.
(c) Right to livelihood.
(d) Right to privacy.
(e) Right to shelter.
(f) Right to health.
(g) Right to free education up to 14 years of age.
(h) Right to free legal aid.
(i) Right against solitary confinement.
(j) Right to speedy trial.
(k) Right against handcuffing.
(l) Right against inhuman treatment.
(m) Right against delayed execution.
(n) Right to travel abroad.
(o) Right against bonded labour.
(p) Right against custodial harassment.
(q) Right to emergency medical aid.
(r) Right to timely medical treatment in government hospital.
(s) Right not to be driven out of a state.
(t) Right to fair trial.
(u) Right of prisoner to have necessities of life.
(v) Right of women to be treated with decency and dignity.
(w) Right against public hanging.
(x) Right to hearing.
(y) Right to information.
(z) Right to reputation.
Q19. Define the concept of secularism. Does the Indian constitution provides for the establishment of a secular state? What has been the attitude of the courts in this regard? Discuss.
Ans- The Constitution of India stands for a secular state. Hence, it does not uphold any particular religionas the official religion of the Indian State. The following provisions of the Constitution reveal thesecular character of the Indian State:
The term ‘secular’ was added to the Preamble of the Indian Constitution by the 42ndConstitutional Amendment Act of 1976.
The Preamble secures to all citizens of India liberty of belief, faith and worship.
The State shall not deny to any person equality before the law or equal protection of the laws(Article 14).
The State shall not discriminate against any citizen on the ground of religion (Article 15).
Equality of opportunity for all citizens in matters of public employment (Article 16).
All persons are equally entitled to freedom of conscience and the right to freely profess,practice and propagate any religion (Article 25).
Every religious denomination or any of its section shall have the right to manage its religiousaffairs (Article 26).
No person shall be compelled to pay any taxes for the promotion of a particular religion(Article 27).
No religious instruction shall be provided in any educational institution maintained by theState (Article 28).
Any section of the citizens shall have the right to conserve its distinct language, script orculture (Article 29).
All minorities shall have the right to establish and administer educational institutions of theirchoice (Article 30).
The State shall endeavour to secure for all the citizens a Uniform Civil Code (Article 44).The Western concept of secularism connotes a complete separation between the religion (the church)and the state (the politics). This negative concept of secularism is inapplicable in the Indian situationwhere the society is multireligious. Hence, the Indian Constitution embodies the positive concept ofsecularism, i.e., giving equal respect to all religions or protecting all religions equally.
Moreover, the Constitution has also abolished the old system of communal representation13, that is,reservation of seats in the legislatures on the basis of religion. However, it provides for thetemporary reservation of seats for the scheduled castes and scheduled tribes to ensure adequaterepresentation to them.
Q20.With the help of decided cases discuss the cultural and educational rights of minorities guaranteed under Art 29 and 30 of the Constitution.
Ans- Article 29 provides that any section of the citizens residing in any part of India having a distinctlanguage, script or culture of its own, shall have the right to conserve the same. Further, no citizenshall be denied admission into any educational institution maintained by the State or receiving aid outof State funds on grounds only of religion, race, caste, or language.
The first provision protects the right of a group while the second provision guarantees the right of acitizen as an individual irrespective of the community to which he belongs.
Article 29 grants protection to both religious minorities as well as linguistic minorities. However, theSupreme Court held that the scope of this article is not necessarily restricted to minorities only, as itis commonly assumed to be. This is because of the use of words ‘section of citizens’ in the Articlethat include minorities as well as majority.
The Supreme Court also held that the right to conserve the language includes the right to agitate for theprotection of the language. Hence, the political speeches or promises made for the conservation of thelanguage of a section of the citizens does not amount to corrupt practice under the Representation ofthe People Act, 1951.
2. Right of Minorities to Establish and Administer Educational Institutions
Article 30 grants the following rights to minorities, whether religious or linguistic:
All minorities shall have the right to establish and administer educational institutions of theirchoice.
The compensation amount fixed by the State for the compulsory acquisition of any property ofa minority educational institution shall not restrict or abrogate the right guaranteed to them.
This provision was added by the 44th Amendment Act of 1978 to protect the right ofminorities in this regard. The Act deleted the right to property as a Fundamental Right (Article31).
In granting aid, the State shall not discriminate against any educational institution managed bya minority.
Thus, the protection under Article 30 is confined only to minorities (religious or linguistic) and doesnot extend to any section of citizens (as under Article 29). However, the term ‘minority’ has not beendefined anywhere in the Constitution.
The right under Article 30 also includes the right of a minority to impart education to its children inits own language.
Minority educational institutions are of three types:
(a) institutions that seek recognition as well as aid from the State;
(b) institutions that seek only recognition from the State and not aid; and
(c) institutions that neither seek recognition nor aid from the State.
The institutions of first and second type are subject to the regulatory power of the state with regard tosyllabus prescription, academic standards, discipline, sanitation, employment of teaching staff and soon. The institutions of third type are free to administer their affairs but subject to operation of generallaws like contract law, labour law, industrial law, tax law, economic regulations, and so on.
