Fundamental Rights 3.

4
Presented by Dr. Roman Saini
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• Article 20: Protection against arbitrary and excessive punishment
• Provided to all accused person whether citizen, foreign national, even to a legal
person

• (a)  No ex-post-facto law: No person shall be (i) convicted of any offence
except for violation of a law in force at the time of the commission of the act, nor
(ii) subjected to a penalty greater than that prescribed by the law in force at the
time of the commission of the act. Only for criminal (not civil or taxation), TADA
Sanjay Dutt. If once acquitted, he can be tried again for the same offence. Tried
under 2 different laws (Dowry prohibition act and IPC)

• (b)  No double jeopardy: No person shall be prosecuted and punished for the
same offence more than once. No protection against Departmental or
administrative authorities.
• (c) No self-incrimination: No person accused of any offence
shall be compelled to be a witness against himself. Covers both
oral evidence and documentary evidence. It does not extend to
(i) compulsory production of material objects, (ii) compulsion to
give thumb impression, specimen signature, blood specimens,
(iii) compulsory exhibition of the body. Only criminal proceedings
and not to civil proceedings.

• Polygraph, Narcoanalysis, Brain mapping etc techniques are not

admissible as evidence, though they may be conducted with
permission of the accused.
• Article 21 : Protection of life and personal liberty

• No person shall be deprived of his life or personal liberty except

according to procedure established by law.

• Available to all individuals (citizens and foreign nationals)

• Can be deprived by a law provided the procedure prescribed by that

law is reasonable, fair and just i.e. ‘due process of law’ is implicit

• Available against both arbitrary actions of executive and legislature

• Extremely wide interpretation by Supreme Court over the years.

• Right to live with dignity, livelihood, clean environment, shelter,
privacy, health ,education , fair trial, against inhuman treatment and
public hanging, right to be heard, information and reputation

• This interpretation is necessary because human beings life should

not be like animals with sole focus on survival and base needs.
They should be able to realise their full potential, follow their
dreams, provision of equal opportunities, to make life meaningful
and worth living.
• Article 21A: 86th CAA 2002, free and compulsory education to children,
6-14 age group, only elementary and not higher.

• Earlier under DPSP Article 45 in Part IV. Now Article 45 reads “The state shall
endeavour to provide early childhood care and education for all children until
they complete the age of six years”.

• Also added under Article 51A FD: It shall be the duty of every citizen of India to
provide opportunities for education to his child or ward between the age of
6-14 years.

• Right of Children to Free and Compulsory Education (RTE) Act, 2009: full
time elementary education of satisfactory and equitable quality in a formal
school which meet essential norms and standards.
•
• Article 22: Protection against arrest and detention in certain cases

• Inform the ground of arrest, right to be defended by legal practitioner of his

choice

• Person arrested and detained in custody shall be produced before the

nearest magistrate within a period of 24 hours (excluding the journey time)
and no such person shall be detained in custody beyond the said period
without the authority of a magistrate

• Exceptions: Enemy alien + Preventive detention

• Preventive detention can be done for a period of 3 months if it is

suspected- arrest of a person(s) will be beneficial for society at large.
• Punitive detention: punish a person for an offence committed after trial and conviction in
a court. Preventive detention: detention of a person without trial and conviction, to
prevent him from committing an offence in the near future.

• Grounds of detention should be communicated except if it is against the public interest,

right to legal representation and to be heard.

• Duration of preventive detention can be increased beyond 3 months if:

• an Advisory Board consisting of Judges of HCs or persons having qualification to be

appointed as such, before expiration of 3 months, feels that there is sufficient cause for
such detention

• Parliament make specific laws like COFEPOSA, TADA ,POTA etc.

• India is the only democratic country where preventive detention is an integral part of
constitution.
• Article 23: Prohibition of traffic in human beings and forced labour

• Traffic in human beings and begar (compulsory work without

remuneration) and other similar forms of forced labour are prohibited,
available to all individuals against state and private party

• Traffic in human beings include selling and buying/immoral traffic of

men, women and children (including prostitution) like goods;
devadasis; slavery

• Exception: State can impose compulsory service for public purposes.

No discrimination on ground only of religion, race, caste or class or
any of them
• Article 24: Prohibition of employment of children in factories, etc.

• No child below the age of fourteen years shall be employed to work in any
factory or mine or engaged in any other hazardous employment.

• Child Labour (Prohibition and Regulation) Act, 1986: Major law

• Commissions for Protection of Child Rights Act, 2005: Establishment of a

National Commission and State Commissions for Protection of Child Rights
and Children’s Courts for providing speedy trial of offences against
children or of violation of child rights.

• Total Ban on Child Labour: approved by union cabinet below 14 years,

relate it with Article 21A
• Article 25: Freedom of conscience and free profession, practice
and propagation of religion

• All persons are equally entitled to freedom of conscience and the

right freely to profess, practice and propagate religion (exception
public order, morality and health)

• State can make any law: regulating or restricting any economic,

financial, political or other secular activity which may be associated
with religious practice; providing for social welfare and reform

• Wearing and carrying of kirpans is to be included in the profession of

the Sikh religion; and the Hindus include Sikhs, Jains and Buddhists
• Same exceptions as under Article 25

• A religious denomination according to SC: distinctive name,

common organisation, collection of individuals who have a system
of beliefs (doctrines) necessary for their spiritual well-being

• ‘Ramakrishna Mission’ and ‘Ananda Marga’ are religious

denominations within the Hindu religion, while Aurobindo Society is
not
• Article 26: Freedom to manage religious affairs

• Every religious denomination or any section thereof shall have the

right -

• to establish and maintain institutions for religious and charitable

purposes;

• to manage its own affairs in matters of religion;

• to own and acquire movable and immovable property; and

• to administer such property in accordance with law

• Article 27: Freedom as to payment of taxes for promotion of any
particular 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.

• This article also prohibits state from favouring one religion over the
other.

• A fee can be collected for providing some services and security to

religious pilgrimages.
• Article 28: Freedom as to attendance at religious instruction or
religious worship in certain educational institutions

• 4 institutions:

• Institutions wholly maintained by the State (complete prohibition)

• Institutions administered by the State but established under any

endowment or trust (permitted)

• Institutions recognised by the State (permitted but voluntary)

• Institutions receiving aid from the State (permitted but voluntary)

•
• Article 29: Protection of interests of minorities

• Any section of the citizens residing in the territory of India or any part
thereof having a distinct language, script or culture of its own shall
have the right to conserve the same. Includes both minorities ( R & L)
as well as majority

• 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, language or any of them

• Right to agitate for the protection of the language ( not an offence

under RPA)
• Article 30: Right of minorities to establish and administer educational
institutions

• All minorities shall have the right to establish and administer educational
institutions of their choice

• Usual law of land acquisition is not valid in this case (44th CAA)

• In granting aid, the State shall not discriminate against any educational
institution managed by a minority (term ‘minority’ has not been defined
anywhere in the Constitution)

• Includes right of a minority to impart education to its children in its own

language
 RIGHTS OUTSIDE PART III
• Constitutional/ Legal/ Non- fundamental rights (No 32, but 226 either
ordinary procedure of appeal or directly for writ jurisdiction)

• No tax shall be levied or collected except by authority of law (Article 265).

• No person shall be deprived of his property save by authority of law

(Article 300-A)

• Trade, commerce and intercourse throughout the territory of India shall be

free (Article 301)

• Adult suffrage Article 326, Right to vote

 Criticism of FR
• Excessive Limitations

• Mainly political rights (SE rights under DPSP are non enforceable)

• Ambiguity in language

• Amendable hence no permanency

• Presence of Preventive Detention

• Can be suspended during Emergency

 Significance of FRs
• Back bone, heart, soul, conscience of constitution, protection of
individual liberty

• Establishment of rule of law.

• Secular nature, protection to all religion and minorities.

• Check and balance over arbitrary action of executive and legislature

• Respect dignity of individual, and help in their realisation of full

potential by encouraging their participation in nation building process.
Continue Polity or Disrupt and start other?

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