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executive action but also against arbitrary legislative action. Further,
the court held that the ‘right to life’ as embodied in Article 21 is not
merely confined to animal existence or survival but it includes within
its ambit the right to live with human dignity and all those aspects of
life which go to make a man’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 the personal liberties of a man.
The Supreme Court has reaffirmed its judgement in the Menaka
case in the subsequent cases. It has declared the following rights as
part of Article 21:
(1) Right to live with human dignity.
(2) Right to decent environment including pollution free water and air
and protection against hazardous industries.
(3) Right to livelihood.
(4) Right to privacy.
(5) Right to shelter.
(6) Right to health.
(7) Right to free education up to 14 years of age.
(8) Right to free legal aid.
(9) Right against solitary confinement.
(10) Right to speedy trial.
(11) Right against handcuffing.
(12) Right against inhuman treatment.
(13) Right against delayed execution.
(14) Right to travel abroad.
(15) Right against bonded labour.
(17) Right to emergency medical aid.
(18) Right to timely medical treatment in government hospital.
(19) Right not to be driven out of a state.
(20) Right to fair trial.
(21) Right of prisoner to have necessities of life.
(22) Right of women to be treated with decency and dignity.
(23) Right against public hanging.
(24) Right to road in hilly areas.
(25) Right to information.
(26) Right to reputation.
(27) Right of appeal from a judgement of conviction
(28) Right to family pension
(29) Right to social and economic justice and empowerment
(30) Right against bar fetters
(31) Right to appropriate life insurance policy
(32) Right to sleep
(33) Right to freedom from noise pollution
(34) Right to sustainable development
(35) Right to opportunity.
4. Right to Education
Article 21 A declares that the State shall provide free and compulsory
education to all children of the age of six to fourteen years in such a
manner as the State may determine. Thus, this provision makes only
elementary education a Fundamental Right and not higher or
professional education.
This provision was added by the 86th Constitutional Amendment
Act of 2002. This amendment is a major milestone in the country’s aim
to achieve ‘Education for All’. The government described this step as
‘the dawn of the second revolution in the chapter of citizens’ rights’.
Even before this amendment, the Constitution contained a
provision for free and compulsory education for children under Article
45 in Part IV. However, being a directive principle, it was not
enforceable by the courts. Now, there is scope for judicial intervention
in this regard.
This amendment changed the subject matter of Article 45 in
directive principles. It now reads–‘The state shall endeavour to provide
early childhood care and education for all children until they complete
the age of six years.’ It also added a new fundamental duty under
Article 51A that reads–‘It shall be the duty of every citizen of India to
provide opportunities for education to his child or ward between the
age of six and fourteen years’.
In 1993 itself, the Supreme Court recognised a Fundamental Right
to primary education in the right to life under Article 21. It held that
every child or citizen of this country has a right to free education until
he completes the age of 14 years. Thereafter, his right to education is
subject to the limits of economic capacity and development of the
state. In this judgement, the Court overruled its earlier judgement
(1992) which declared that there was a fundamental right to education
up to any level including professional education like medicine and
engineering.
In pursuance of Article 21A, the Parliament enacted the Right of
Children to Free and
Compulsory Education (RTE) Act, 2009. This Act seeks to provide
that every child has a right to be provided full time elementary
education of satisfactory and equitable quality in a formal school which
satisfies certain essential norms and standards. This legislation is
anchored in the belief that the values of equality, social justice and
democracy and the creation of a just and humane society can be
achieved only through provision of inclusive elementary education to
all.12a
5. Protection Against Arrest and Detention
Article 22 grants protection to persons who are arrested or detained.
Detention is of two types, namely, punitive and preventive. Punitive
detention is to punish a person for an offence committed by him after
trial and conviction in a court. Preventive detention, on the other hand,
means detention of a person without trial and conviction by a court. Its
purpose is not to punish a person for a past offence but to prevent him
from committing an offence in the near future. Thus, preventive
detention is only a precautionary measure and based on suspicion.
The Article 22 has two parts–the first part deals with the cases of
ordinary law and the second part deals with the cases of preventive
detention law.
(a) The first part of Article 22 confers the following rights on a person
who is arrested or detained 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 hou
including the journey time.
(iv) Right to be released after 24 hours unless the magistra
authorises further detention.
These safeguards are not available to an enemy alien or a
person arrested or detained under a preventive detention law.
The Supreme Court also ruled that the arrest and detention in
the first part of Article 22 do not cover 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 or some activity prejudicial to public
interest.
(b) The second part of Article 22 grants protection to persons who
are arrested or detained under a preventive detention law. This
protection is available to both citizens as well as aliens and
includes the following:
(i) The detention of a person cannot exceed three months unless
advisory board reports sufficient cause for extended detentio
The board is to consist of judges of a high court.
(ii) The grounds of detention should be communicated to the deten
However, the facts considered to be against the public intere
need not be disclosed.
(iii) The detenu should be afforded an opportunity to make
representation against the detention order.
Article 22 also authorises the Parliament to prescribe (a) the
circumstances and the classes of cases in which a person can be
detained for more than three months under a preventive detention law
without obtaining the opinion of an advisory board; (b) the maximum
period for which a person can be detained in any classes of cases
under a preventive detention law; and (c) the procedure to be followed
by an advisory board in an inquiry.
The 44th Amendment Act of 1978 has reduced the period of
detention without obtaining the opinion of an advisory board from
three to two months. However, this provision has not yet been brought
into force, hence, the original period of three months still continues.
The Constitution has divided the legislative power with regard to
preventive detention between the Parliament and the state
legislatures. The Parliament has exclusive authority to make a law of
preventive detention for reasons connected with defence, foreign
affairs and the security of India. Both the Parliament as well as the
state legislatures can concurrently make a law of preventive detention
public order and the maintenance of supplies and services essential to
the community.
The preventive detention laws made by the Parliament are:
(a) Preventive Detention Act, 1950. Expired in 1969.
(b) Maintenance of Internal Security Act (MISA), 1971. Repealed in
1978.
(c) Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act (COFEPOSA), 1974.
(d) National Security Act (NASA), 1980.
(e) Prevention of Blackmarketing and Maintenance of Supplies of
Essential Commodities Act (PBMSECA), 1980.
(f) Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985.
Repealed in 1995.
(g) Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act (PITNDPSA), 1988.
(h) Prevention of Terrorism Act (POTA), 2002. Repealed in 2004.
(i) Unlawful Activities (Prevention) Act (UAPA), 1967, as amended in
2004, 2008, 2012 and 2019.
It is unfortunate to know that no democratic country in the world has
made preventive detention as an integral part of the Constitution as
has been done in India. It is unknown in USA. It was resorted to in
Britain only during first and second world war time. In India, preventive
detention existed even during the British rule. For example, the Bengal
State Prisoners Regulation of 1818 and the Defence of India Act of
RIGHT AGAINST EXPLOITATION
1. Prohibition of Traffic in Human Beings and Forced
Labour
Article 23 prohibits traffic in human beings, begar (forced labour) and
other similar forms of forced labour. 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 the State but also against private persons.
The expression ‘traffic in human beings’ include (a) selling and
buying of men, women and children like goods; (b) immoral traffic in
women and children, including prostitution; (c) devadasis; and (d)
slavery. To punish these acts, the Parliament has made the Immoral
Traffic (Prevention) Act13 , 1956.
The term ‘begar ’ means compulsory work without remuneration. It
was a peculiar Indian system under which the local zamin-dars
sometimes used to force their tenants to render services without any
payment. In addition to begar, the Article 23 prohibits other ‘similar
forms of forced labour’ like ‘bonded labour’. The term ‘forced labour’
means compelling a person to work against his will. The word ‘force’
includes not only physical or legal force but also force arising from the
compulsion of economic circumstances, that is, working for less than
the minimum wage. In this regard, the Bonded Labour System
(Abolition) Act, 1976; the Minimum Wages Act, 1948; the Contract
Labour Act, 1970 and the Equal Remuneration Act, 1976 were made.
Article 23 also provides for an exception to this provision. It permits
the State to impose compulsory service for public purposes, as for
example, military service or social service, for which it is not bound to
pay. However, in imposing such service, the State is not permitted to
make any discrimination on grounds only of religion, race, caste or
class.
2. Prohibition of Employment of Children in Factories, etc.
Article 24 prohibits the employment of children below the age of 14
years in any factory, mine or other hazardous activities like
The Child Labour (Prohibition and Regulation) Act, 1986, is the
most important law in this direction. In addition, the Employment of
Children Act, 1938; the Factories Act, 1948; the Mines Act, 1952; the
Merchant Shipping Act, 1958; the Plantation Labour Act, 1951; the
Motor Transport Workers Act, 1951; Apprentices Act, 1961; the Bidi
and Cigar Workers Act, 1966; and other similar acts prohibit the
employment of children below certain age.
In 1996, the Supreme Court directed the establishment of Child
Labour Rehabilitation Welfare Fund in which the offending employer
should deposit a fine of ₹20,000 for each child employed by him. It
also issued directions for the improvement of education, health and
nutrition of children.
The Commissions for Protection of Child Rights Act, 2005 was
enacted to provide for the 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.
In 2006, the government banned the employment of children as
domestic servants or workers in business establishments like hotels,
dhabas, restaurants, shops, factories, resorts, spas, tea-shops and so
on. It warned that anyone employing children below 14 years of age
would be liable for prosecution and penal action.
The Child Labour (Prohibition and Regulation) Amendment Act,
2016, amended the Child Labour (Prohibition and Regulation) Act,
RIGHT TO FREEDOM OF RELIGION
1. Freedom of Conscience and Free Profession, Practice
and Propagation of Religion
Article 25 says that all persons are equally entitled to freedom of
conscience and the right to freely profess, practice and propagate
religion. The implications of these are:
(a) Freedom of conscience: Inner freedom of an individual to mould
his relation with God or Creatures in whatever way he desires.
(b) Right to profess: Declaration of one’s religious beliefs and faith
openly and freely.
(c) Right to practice: Performance of religious worship, rituals,
ceremonies and exhibition of beliefs and ideas.
(d) 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 own religion. Forcible conversions impinge on the
‘freedom of conscience’ guaranteed to all the persons alike.
From the above, it is clear that Article 25 covers not only religious
beliefs (doctrines) but also religious practices (rituals). Moreover,
these rights are available to all persons–citizens as well as non-
citizens.
However, these rights are subject to public order, morality, health
and other provisions relating to fundamental rights. Further, the State
is permitted to:
(a) regulate or restrict any economic, financial, political or other
secular activity associated with religious practice; and
(b) provide for social welfare and reform or throw open Hindu
religious institutions of a public character to all classes and
sections of Hindus.
Article 25 also contains two explanations: one, wearing and
carrying of kirpans is to be included in the profession of the Sikh
religion; and two, the Hindus, in this context, include Sikhs, Jains and
Buddhists.14
2. Freedom to Manage Religious Affairs
According to Article 26, every religious denomination or any of its
section shall have the following rights:
(a) Right to establish and maintain institutions for religious and
charitable purposes;
(b) Right to manage its own affairs in matters of religion;
(c) Right to own and acquire movable and immovable property; and
(d) Right to administer such property in accordance with law.
Article 25 guarantees rights of individuals, while Article 26
guarantees rights of religious denominations or their sections. In other
words, Article 26 protects collective freedom of religion. Like the rights
under Article 25, the rights under Article 26 are also subject to public
order, morality and health but not subject to other provisions relating to
the Fundamental Rights.
The Supreme Court held that a religious denomination must satisfy
three conditions:
(a) It should be a collection of individuals who have a system of
beliefs (doctrines) which they regard as conducive to their
spiritual well-being;
(b) It should have a common organisation; and
(c) It should be designated by a distinctive name.
Under the above criteria, the Supreme Court held that the
‘Ramakrishna Mission’ and ‘Ananda Marga’ are religious
denominations within the Hindu religion. It also held that Aurobindo
Society is not a religious denomination.
3. Freedom from Taxation for Promotion of a Religion
Article 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. In other words, the State should not spend the
public money collected by way of tax for the promotion or
maintenance of any particular religion. This provision prohibits the
State from favouring, patronising and supporting one religion over the
other. This means that the taxes can be used for the promotion or
maintenance of all religions.
This provision prohibits only levy of a tax and not a fee. This is
because the purpose of a fee is to control secular administration of
religious institutions and not to promote or maintain religion. Thus, a
fee can be levied on pilgrims to provide them some special service or
safety measures. Similarly, a fee can be levied on religious
Under Article 28, no religious instruction shall be provided in any
educational institution wholly maintained out of State funds. However,
this provision shall not apply to an educational institution administered