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1993 by an act of Parliament. Its mandate was to examine the
complaints of under-inclusion, over-inclusion or non-inclusion of
any class of citizens in the list of backward classes for the
purpose of job reservation. Later, the 102nd Amendment Act of
2018 conferred a constitutional status on the commission and
also enlarged its functions. For this purpose, the amendment
(c) In order to nullify the ruling with regard to reservation in
promotions, the 77th Amendment Act was enacted in 1995. It
added a new provision in Article 16 that empowers the State to
provide for reservation in promotions of any services under the
State in favour of the SCs and STs that are not adequately
represented in the state services. Again, the 85th Amendment
Act of 2001 provides for ‘consequential seniority’ in the case of
promotion by virtue of rule of reservation for the government
servants belonging to the SCs and STs with retrospective effect
from June 1995.
(d) The ruling with regard to backlog vacancies was nullified by the
81st Amendment Act of 2000. It added another new provision in
Article 16 that empowers the State to consider the unfilled
reserved vacancies of a year as a separate class of vacancies to
be filled up in any succeeding year or years. Such class of
vacancies are not to be combined with the vacancies of the year
in which they are being filled up to determine the ceiling of 50%
reservation on total number of vacancies of that year. In brief, it
ends the 50% ceiling on reservation in backlog vacancies.
(e) The 76th Amendment Act of 1994 has placed the Tamil Nadu
Reservations Act9 of 1994 in the Ninth Schedule to protect it from
judicial review as it provided for 69 per cent of reservation, far
exceeding the 50 per cent ceiling.
Reservation for EWSs in Public Employment
The above exception (d) was added by the 103rd Amendment Act of
2019. In order to give effect to this provision, the central government
issued an order (in 2019) providing 10% reservation to the
Economically Weaker Sections (EWSs) in civil posts and services in
the Government of India. The benefit of this reservation can be availed
by the persons belonging to EWSs who are not covered under any of
the existing schemes of reservation for SCs, STs and OBCs. The
eligibility criteria laid down in this regard has already been explained
under Article 15.
Further, the scientific and technical posts which satisfy all the
following conditions can be exempted from the purview of this
reservation:
(i) The posts should be in grades above the lower grade in Group A
of the service concerned.
(ii) They should be classified as “scientific or technical” in terms of
Cabinet Secretariat Order (1961), according to which scientific
and technical posts for which qualifications in the natural sciences
or exact sciences or applied sciences or in technology are
prescribed and the incumbents of which have to use that
knowledge in the discharge of their duties.
(iii) The posts should be for conducting research or for organizing,
guiding and directing research.
4. Abolition of Untouchability
Article 17 abolishes ‘untouchability’ and forbids its practice in any
form. The enforcement of any disability arising out of untouchability
shall be an offence punishable in accordance with law.
In 1976, the Untouchability (Offences) Act, 1955 has been
comprehensively amended and renamed as the Protection of Civil
Rights Act, 1955 to enlarge the scope and make penal provisions
more stringent. The act defines civil right as any right accruing to a
person by reason of the abolition of untouchability by Article 17 of the
Constitution.
The term ‘untouchability’ has not been defined either in the
Constitution or in the Act. However, the Mysore High Court held that
the subject matter of Article 17 is not untouchability in its literal or
grammatical sense but the ‘practice as it had developed historically in
the country’. It refers to the social disabilities imposed on certain
classes of persons by reason of their birth in certain castes. Hence, it
does not cover social boycott of a few individuals or their exclusion
from religious services, etc.
The Supreme Court held that the right under Article 17 is available
against private individuals and it is the constitutional obligation of the
State to take necessary action to ensure that this right is not violated.
5. Abolition of Titles
Article 18 abolishes titles and makes four provisions in that regard:
(a) It prohibits the state from conferring any title (except a military or
academic distinction) on any body, whether a citizen or a
foreigner.
(b) It prohibits a citizen of India from accepting any title from any
foreign state.
(c) A foreigner holding any office of profit or trust under the state
of the president.
(d) No citizen or foreigner holding any office of profit or trust under
the State is to accept any present, emolument or office from or
under any foreign State without the consent of the president.
From the above, it is clear that the hereditary titles of nobility like
Maharaja, Raj Bahadur, Rai Bahadur, Rai Saheb, Dewan Bahadur,
etc, which were conferred by colonial States are banned by Article 18
as these are against the principle of equal status of all.
In 199610 , the Supreme Court upheld the constitutional validity of
the National Awards–Bharat Ratna, Padma Vibhushan, Padma
Bhushan and Padma Sri. It ruled that these awards do not amount to
‘titles’ within the meaning of Article 18 that prohibits only hereditary
titles of nobility. Therefore, they are not violative of Article 18 as the
theory of equality does not mandate that merit should not be
recognised. However, it also ruled that they should not be used as
suffixes or prefixes to the names of awardees. Otherwise, they should
forfeit the awards.
These National Awards were instituted in 1954. The Janata Party
RIGHT TO FREEDOM
1. Protection of Six Rights
Article 19 guarantees to all citizens the six rights. These are:
(i) Right to freedom of speech and expression.
(ii) Right to assemble peaceably and without arms.
(iii) Right to form associations or unions or co-operative societies.10a
(iv) Right to move freely throughout the territory of India.
(v) Right to reside and settle in any part of the territory of India.
(vi) Right to 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 property was deleted by the 44th
Amendment Act of 1978.
These six rights are protected against only state action and not
private individuals. Moreover, these rights are available only to the
citizens and to shareholders of a company but not to foreigners or
legal persons like companies or corporations, etc.
The State can impose ‘reasonable’ restrictions on the enjoyment of
these six rights only on the grounds mentioned in the Article 19 itself
and not on any other grounds.
Freedom of Speech and Expression
It implies that every citizen has the right to express his views,
opinions, belief and convictions freely by word of mouth, writing,
printing, picturing or in any other manner. The Supreme Court held
that the freedom of speech and expression includes the following:
(a) Right to propagate one’s views as well as views of others.
(b) Freedom of the press.
(c) Freedom of commercial advertisements.
(d) Right against tapping of telephonic conversation.
(e) Right to telecast, that is, government has no monopoly on
electronic media.
(f) Right against bundh called by a political party or organisation.
(g) Right to know about government activities.
(h) Freedom of silence.
(i) Right against imposition of pre-censorship on a newspaper.
(j) Right to demonstration or picketing but not right to strike.
The State can impose reasonable restrictions on the exercise of the
freedom of speech and expression on the grounds of sovereignty and
integrity of India, security of the state, friendly relations with foreign
states, public order, decency or morality, contempt of court,
defamation, and incitement to an offence.
Freedom of Assembly
Every citizen has the right to assemble peaceably and without arms. It
includes the right to hold public meetings, demonstrations and take
out processions. This freedom can be exercised only on public land
and the assembly must be peaceful and unarmed. This provision does
not protect violent, disorderly, riotous assemblies, or one that causes
breach of public peace or one that involves arms. This right does not
include the right to strike.
The State can impose reasonable restrictions on the exercise of
right of assembly on two grounds, namely, sovereignty and integrity of
India and public order including the maintenance of traffic in the area
concerned.
Under Section 144 of Criminal Procedure Code (1973), a
magistrate can restrain an assembly, meeting or procession if there is
a risk of obstruction, annoyance or danger to human life, health or
safety or a disturbance of the public tranquillity or a riot or any affray.
Under Section 141 of the Indian Penal Code, as assembly of five or
more persons becomes unlawful if the object is (a) to resist the
execution of any law or legal process; (b) to forcibly occupy the
property of some person; (c) to commit any mischief or criminal
trespass; (d) to force some person to do an illegal act; and (e) to
threaten the government or its officials on exercising lawful powers.
Freedom of Association
All citizens have the right to form associations or unions or co-
operative societies10b. It includes the right to form political parties,
companies, partnership firms, societies, clubs, organisations, trade
unions or any body of persons. It not only includes the right to start an
association or union but also to continue with the association or union
as such. Further, it covers the negative right of not to form or join an
association or union.
Reasonable restrictions can be imposed on the exercise of this
right by the State on the grounds of sovereignty and integrity of India,
public order and morality. Subject to these restrictions, the citizens
have complete liberty to form associations or unions for pursuing
lawful objectives and purposes. However, the right to obtain
recognition of the association is not a fundamental right.
The Supreme Court held that the trade unions have no guaranteed
right to effective bargaining or right to strike or right to declare a lock-
out. The right to strike can be controlled by an appropriate industrial
law.
Freedom of Movement
This freedom entitles every citizen to move freely throughout the
territory of the country. He can move freely from one state to another
or from one place to another within a state. This right underline the
idea that India is one unit so far as the citizens are concerned. Thus,
the purpose is to promote national feeling and not parochialism.
The grounds of imposing reasonable restrictions on this freedom
are two, namely, the interests of general public and the protection of
interests of any scheduled tribe. The entry of outsiders in tribal areas
is restricted to protect the distinctive culture, language, customs and
manners of scheduled tribes and to safeguard their traditional vocation
and properties against exploitation.
The Supreme Court held that the freedom of movement of
prostitutes can be restricted on the ground of public health and in the
interest of public morals. The Bombay High Court validated the
restrictions on the movement of persons affected by AIDS.
The freedom of movement has two dimensions, viz, internal (right
to move inside the country) and external (right to move out of the
country and right to come back to the country). Article 19 protects only
the first dimension. The second dimension is dealt by Article 21 (right
to life and personal liberty).
Freedom of Residence
Every citizen has the right to reside and settle in any part of the
territory of the country. This right has two parts: (a) the right to reside
in any part of the country, which means to stay at any place
temporarily, and (b) the right to settle in any part of the country, which
means to set up a home or domicile at any place permanently.
This right is intended to remove internal barriers within the country
or between any of its parts. This promotes nationalism and avoids
narrow mindedness.
The State can impose reasonable restrictions on the exercise of
this right on two grounds, namely, the interest of general public and
the protection of interests of any scheduled tribes. The right of
outsiders to reside and settle in tribal areas is restricted to protect the
distinctive culture, language, customs and manners of scheduled
tribes and to safeguard their traditional vocation and properties
against exploitation. In many parts of the country, the tribals have
been permitted to regulate their property rights in accordance with
their customary rules and laws.
The Supreme Court held that certain areas can be banned for
certain kinds of persons like prostitutes and habitual offenders.
From the above, it is clear that the right to residence and the right
to movement are overlapping to some extent. Both are
complementary to each other.
Freedom of Profession, etc.
All citizens are given the right to practise any profession or to carry on
any occupation, trade or business. This right is very wide as it covers
all the means of earning one’s livelihood.
The State can impose reasonable restrictions on the exercise of
this right in the interest of the general public. Further, the State is
empowered to:
(a) prescribe professional or technical qualifications necessary for
practising any profession or carrying on any occupation, trade or
business; and
(b) carry on by itself any trade, business, industry or service whether
to the exclusion (complete or partial) of citizens or otherwise.
Thus, no objection can be made when the State carries on a trade,
business, industry or service either as a monopoly (complete or
partial) to the exclusion of citizens (all or some only) or in competition
with any citizen. The State is not required to justify its monopoly.
This right does not include the right to carry on a profession or
business or trade or occupation that is immoral (trafficking in women
or children) or dangerous (harmful drugs or explosives, etc,). The
State can absolutely prohibit these or regulate them through licencing.
2. Protection in Respect of Conviction for Offences
Article 20 grants protection against arbitrary and excessive
punishment to an accused person, whether citizen or foreigner or legal
person like a company or a corporation. It contains three provisions in
that direction:
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.
(b) No double jeopardy: No person shall be prosecuted and
punished for the same offence more than once.
(c) No self-incrimination: No person accused of any offence shall be
compelled to be a witness against himself.
An ex-post-facto law is one that imposes penalties retrospectively
(retroactively), that is, upon acts already done or which increases the
penalties for such acts. The enactment of such a law is prohibited by
the first provision of Article 20. However, this limitation is imposed only
on criminal laws and not 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 and not the trial thereof. Finally, the protection (immunity)
under this provision cannot be claimed in case of preventive detention
or demanding security from a person.
The protection against double jeopardy is available only in
proceedings before a court of law or a judicial tribunal. In other words,
it is not available in proceedings before departmental or administrative
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 give
thumb 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 which are not
of criminal nature.
3. Protection of Life and Personal Liberty
Article 21 declares that no person shall be deprived of his life or
personal liberty except according to procedure established by law.
This right is available to both citizens and non-citizens.
In the famous Gopalan case11 (1950), the Supreme Court has
taken a narrow interpretation of the Article 21. It held that the
protection under Article 21 is available only against arbitrary executive
action and not from arbitrary legislative action. This means that the
State can deprive the right to life and personal liberty of a person
based on a law. This is because of the expression ‘procedure
established 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 procedure cannot be
questioned on the ground that the law is unreasonable, unfair or
unjust. Secondly, the Supreme Court held that the ‘personal liberty’
means only liberty relating to the person or body of the individual. But,
in Menaka case12 (1978), the Supreme Court overruled its judgement
in the Gopalan case by taking a wider interpretation of the Article 21.
Therefore, it ruled that the right to life and personal liberty of a person
can be deprived by a law provided the procedure prescribed by that
law is reasonable, fair and just. In other words, it has introduced the
American expression ‘due process of law’. In effect, the protection
under Article 21 should be available not only against arbitrary