Part III

Fundamental Rights
Fundamental Rights Articles

(a) Article 14 - Equal protection of laws and Equality before law.

(b) Article 15 - Prohibition of discrimination on grounds of religion,
caste, sex, place of birth or race.
1. Right to
(c) Article 16 - Equality of opportunity in terms of public employment.
equality (d) Article 17 - Abolition of untouchability and prohibition of its
practice.
(e) Article 18 - Abolition of titles except military and academic.
(a) Article 19 - Protection of six rights regarding freedom of:
(i) speech and expression,
(ii) assembly,
(iii) association,
(iv) movement,
2. Right to (v) residence, and
freedom (vi) profession
(b) Article 20 - Protection in a conviction for offences.
(c) Article 21 - Protection of life and personal liberty.
(d)Article 21A - Right to elementary education.
(e) Article 22 - Protection against arrest and detention in certain
 (a) Article 23 - Prohibition of traffic in forced
3. Right against labour and human beings.
exploitation (b) Article 24 - Prohibition of employment of
children in Companies and factories, etc.
(a) Article 25 - Freedom of conscience and free
profession, practice and propagation of religion.
(b) Article 26 - Freedom to manage religious
affairs.
4. Right to freedom
of religion
(c) Article 27 - Freedom from payment of taxes for
promotion of any religion or religious affairs.
(d) Article 28 - Freedom from attending religious
instruction or worship in certain educational
institutions
5. Cultural and (a) Article 29 - Protection of language, script and
culture of minorities.
educational (b) Article 30 - Rights of minorities to establish and
rights administer educational institutions.

Article 32 - Right to move the Supreme Court for

the enforcement of fundamental rights including the
6. Right to writs of
(i) Habeas corpus,
constitutional (ii) Mandamus,
remedies (iii) Prohibition,
(iv) Certiorari,
(v) Quo warranto
Restriction to Freedom of Religion
These restrictions are:
[Link] order, morality and health and other provisions of the
Constitution (Clause 1 of Article 25).
[Link] relating to or restricting any economic, financial, political,
or other secular activities associated with religious practices.
(Clause 2(a) of Article 25).
[Link] welfare and reform that might interfere with religious
practices
Profess, Practice and Propagate
• The court in Stainislaus Rev v. State of MP explained that freedom of ‘profess’
means the right of the believer to state his creed in public whereas freedom of
‘practice’ means his right to give expression in forms of private and public
worship. The court also explained that the right to propagate one’s religion
means the right to communicate a person’s beliefs to another person or to
expose the tenets of that faith, but shall not include the right to ‘convert’
another person to the former’s faith.
• In the Commissioner Hindu Religious Endowments Madras v. Sri L T Swamiar of
Sri Shriur Matt, the Court held that ‘profess’ means ‘right to freely declare of
one’s faith”
“A religion may not only lay down a code of ethical rules for its followers to
accept, it might prescribe rituals and observances, ceremonies and modes of
worship which are regarded as integral parts of religion, and these forms and
observances might extend even to matters of food and dress"
Profess
• The right to take out religious processions and to have religious gatherings
in the public places fall under the right to profess religion as guaranteed in
article 25 (1). The exercise of this right is, however, subject to public
order and morality.
• The police authorities, for instance, have been empowered to regulate such
overt acts of religious profession. Section 30 (1) of the police Act
authorizes the police to regulate assemblies and processions and
to prescribe the routes and timings for such purposes.
• Under section 144 of the Code of Criminal procedure, a magistrate
can ban processions and meetings altogether where there is an
apprehension of breach of peace. Such orders are done during the
times of communal tension that is endemic in some parts of the country.
Usage of Loudspeakers in the name of Religion
• In Moulana Mufti Syed Md. Noorur Rehman Barkati vs State of West Bengal
(1998), the Calcutta police imposed a prohibition on the use of loudspeakers during
Azaan on the ground that it disturbed public peace. This order was challenged saying it
violated the fundamental right guaranteed under Articles 25 and 26. The Calcutta High
Court gave priority to the right to live in a noise-free environment and upheld the
restriction imposed by the Calcutta police.
• The Allahabad High Court in Afzal Ansari and others vs State of Uttar Pradesh
(2020), held that Azaan may be an essential and integral part of Islam but its
recitation through loudspeakers or other sound-amplifying devices cannot be
said to be an essential part of the religion.
• In the Re Noise Pollution case (2005), the Supreme Court asked the State to
implement the laws restricting the use of loudspeakers and high-volume producing sound
systems as per the Noise Pollution Control and Regulation Rules, 1999.
• The Commissioner of Police in Calcutta prohibited the use of loudspeakers for prayer in
Mosques located in some residential areas in the city. On challenge, his ban order was
held constitutional: Masud Alam v. Commissioner of Police, AIR 1956 Cal. 9
Use of Firecrackers
In Arjun Gopal vs Union of India (2018), the Supreme Court
gave several directions for the use of firecrackers-
•Those crackers having reduced emissions and green crackers
would only be allowed to be manufactured and sold. All other
types of crackers were banned.
•The manufacture, sale, and use of joined crackers was banned
since they caused huge air, noise, and solid waste problems.
•The timing for the burning of firecrackers on Diwali was fixed
from 8.00 p.m till 10.00 p.m only
 Practice
• To 'practice' religion is to perform the prescribed religious duties, rights and rituals, and to
exhibit his religious belief and ideas by such acts as prescribed by religious order in which he
believes.
• The case arose out of the Bombay Prevention of Hindu Bigamous Marriage Act,
passed by the State of Bombay. The Act prevented bigamy among Hindus alone who resided in
that State while the Muslim community that practiced polygamy was left out of the operation of
the said Act. Therefore, Shri Narasu Appa Mali appealed before the High Court of
Bombay, because the Act infringed the plaintiff’s religious freedom.
• The aggrieved plaintiff alleged that by enacting the Bombay Prevention of Hindu Bigamous
Marriage Act of 1946, the State of Bombay discriminated between Hindus and Muslims
residing in that State on the basis of religious practice and, therefore, pleaded that the
enactment was void. The Court upheld the impugned Act constitutionally valid.
• Mr. M.C. Chagla, the Chief Justice of the Bombay High Court, who gave the judgment of the
Court in this case, indicated that the freedom to practice religion as provided under article
25(1) was not absolute, in the sense that if religious practices contravened to public order or to
a policy of social welfare, then they said practices could not claim State protection.
Entry to Temples
• In Venkataramana Devaru vs State of Mysore (1958), the Madras Temple Entry
Authorisation Act removed the disability of Harijans from entering Hindu public
temples. The trustee of the temple contended that it was a private temple and so, it
was outside the scope of the Act. This plea was rejected by the Supreme Court and
it gave primacy to Article 25(2)(b) over Article 26 (b). However, the Supreme
Court said that when there is a conflict then it makes a harmonious interpretation of
the provisions.
• In India Young Lawyers Association vs State of Kerala (2018), the Devaswom
Board of Sabarimala temple imposed a ban on entry of women aged between 10-50
years under Rule 3(b) of Kerala Hindu Place of Public Worship (Authorisation of
Entry) Rules, 1965. The Supreme Court held the rule discriminatory of the parent
Act and allowed the entry of all ages of women to the temple.
The Essential Practice Doctrine
• The Supreme court held in Shayara Bano case that triple talaq is not an
essential practice of Islam and proclaimed it unconstitutional. In Re Anand
Marga case, it was held that the tandava dance was not an essential
requirement for the Ananda margis, the dance with lethal weapons and a
skull in their hands in a public place was rightly prohibited by an order to
maintain public order and morality, the order merely prohibited the use
weapons such as daggers etc and skulls and not the entire procession.
[Acharya Jagdishwaranand ... vs Commissioner of Police, Calcutta,
MANU/SC/0050/1983]
Problem: Constitutional Morality
• The dissenting Judge carves out a separate identity for the followers of Lord Ayyapa as opposed
to her brother judges, who refused to accept this separate identity as a denomination and
considered all the followers as Hindus and merely following a different practice does not give the
followers any separate identity. She asserts that the deity in consideration manifests in the form
of a "naishtik brahmachari" and the devotees of this deity have the right to worship the deity in
the form he manifests, it is the peculiarity of Hindu deities that they can take different forms and
it is not customary to worship all the forms by everyone. Therefore, the deity at Sabarimala has
to be seen in the form that he manifests in and the practice of his followers and method of
worshiping him at that particular place and temple specifically designed for such worship,
making it an essential practice of this sect.
• The other judges did not see the restrictions of morality and public order in a narrow sense from
the lens of a sect or a particular group, so can be applied as a "colourable device" to curtail
freedom of religion. The dissenting Judge presented morality in terms of constitutional
morality, which means that the people of various sects given the plural and secular fabric of the
nation, can practice their religion and other practices as per the tenets of their religion and
rationality cannot be invoked in the matters of faith.
•Dr. P.C. Jain has suggested that in the matter of doubtful
religious practices, the Courts in India should accept the
contention of a believer who claims before the Court that
certain practice has religious significance to the plaintiff
instead of restoring to judicial prove into plaintiff’s claim
so as to see whether it is an essential and an integral part
of a religion, and in some other instances to ascertain
whether it is an obligatory overt act of a religious tenet.
• In the case of Public Prosecutor v. P. Ramaswamy, the Madras High Court had to
deal with a case of this sort. In this case the respondent, Mr. P. Ramaswamy published
certain articles with malicious purpose of outraging the religious sentiments of the
Muslims. The author criticised various injunctions of the Quran. He was critical of the
punishment sanctioned by the Quran, such as the stoning to death of persons who were
found guilty of adultery which, according to him, was inconsistent with the provisions for
divorce, remarriage and allowing a person to have as many as four wives. He also
questioned the punishment of cutting off hands for theft as sanctioned by the Quran. The
author concluded in his article that these provisions of Quran indicated that Allah was a
fool and “a foolish and barbarous person like Allah has no place in this world”.
• The Madras High Court found the respondent of the instant case guilty of section 295 A.
In giving its verdict, the Court declared: [T]he Courts have to be circumspect and pay due
regard to the feelings and religious emotions of different classes of persons with different
beliefs, irrespective of the consideration whether or not they shared those belief or
whether those beliefs were rational or not in the opinion of the Court.
 Propagate
• To 'propagate ' means to spread and publicize his religious view for the
edification of others. But the word "propagation" only indicates persuasion
and exposition without any element of coercion. The right to propagate
religion means the right to communicate one’s religious tenets to others by
way of preaching, teaching and writing with the explicit intention of convincing
others about the goodness of one’s religion. As propagation implies
convincing others to one’s point of view, it may involve underestimating
others’ religious feelings of any section of the public, the same may be
penalized.
• . Section 295 A of the Indian Penal Code,108 for example, punishes
deliberate and malicious acts intended to outrage the religious
feelings of any class of persons The Supreme Court of India ruled in Ramji
Lal Modi v. State of Uttar Pradesh, if religious propagation is done in any way
with deliberate intention to outrage the religious feeling of others, the same
can be penalized within the protection of clause (2) of article 19.
Propagate
• Clause (13) of the Interim Report on Fundamental Rights submitted to the
Constituent Assembly in April 1947 included the right to propagate.
• Nevertheless, clause (17) of the Report stated, “conversion from one religion
to another brought about by coercion or undue influence shall not be
recognized by law”.[CAD, vol. 7, p. 427.] When clause (17) was debated on
the floor of the Constituent Assembly, Mr. K.M. Munshi who composed the text,
proposed a new amendment to the clause during the debate which read, “Any
conversion from one religion to another of any person brought by fraud, coercion
or undue influence or of a minor under the age of eighteen shall not be recognized
by law.’’
• The Christian members of the Assembly opposed Mr. K.M. Munshi’s amendment
proposal, because they voiced that it would nullify in large measure the freedom of
religion guaranteed under clause (13). Dr. B.R. Ambedkar, the Chairman of the
Constituent Assembly, also strongly opposed Mr. K.M. Munshi’s amendment
proposal.
Whether right to propagate means the right to
convert?

• In Rev Stanislaus vs State of M.P (1977), the Supreme Court held that the word
‘propagate’ in Article 25 (1) does not grant the right to convert another person to
one’s own religion, but it grants the right to transmit or spread one’s religion by an
exposition of its tenets. There is no fundamental right to convert a person to one’s
religion because if a person purposely undertakes to convert another person to one’s
own religion, then it would impugn the freedom of religion guaranteed to all citizens
in the country alike.

• "what the article grants is not the right to convert another person to one's own
religion, but to transmit or spread one's religion by an exposition of its tenets."
Disclosure of Religion in Forms or
Applications
•In Dr. Ranjeet Suryakant Mohite vs Union of India
(2014), the Supreme Court held that the State cannot compel
any citizen to disclose his/her religion while submitting
forms or declarations. A citizen has a right to claim that he
does not believe in any religion and therefore does not
practice or profess any religion. A citizen can always claim
that he belongs to “no religion”.
Religion or Nation?
• In Bijoe Emmanuel vs State of Kerala (National Anthem case) (1986), a
two-judge bench of the SC ruled that Jehovah's witnesses constitute a religious
denomination. Compelling a student belonging to Jehova’s witnesses to join in
the singing of the National Anthem despite his genuine conscientious religious
objection, would contravene the right guaranteed by Article 19(1)(a) and Article
25(1). The Court noted that Jehova’s witnesses, wherever they are, do not sing
the National Anthem, though they show respect to it by standing up whenever it
is sung. They truly and conscientiously believe that their religion does not permit
the singing of the National Anthem.
• However, in Shyam Narayan Chouksey vs Union of India (2018), the Supreme
Court held that one is compelled to show respect whenever and wherever the
National Anthem is played by virtue of Section 3 of Prevention of Insults to
National Honor Act, 1971.
“Every Person”
•In Ratilal Panachand Gandhi v. State of Bombay, the Supreme
Court stated that Article 25 guarantees every person (not
only citizens) the freedom of conscience and right to freely
profess, practise and propagate religion imposed with certain
restrictions by the State.
•Mr. Justice Mukerjea who spoke for the Court said, “Article
25 of the Constitution guarantees to every person and not
merely to the citizens of India, the freedom of conscience and
the right freely to profess, practice and to propagate religion”.
The CAA
Wakila Hussain
Prior to CAA
1. Chakma-Hajong Decision
National Human Rights Commission vs State of Arunachal Pradesh, 1996
[Link] Allows Property Rights, Not To Muslim Immigrants
The RBI notification, under the Foreign Exchange Management (Acquisition and
Transfer of Immovable Property in India) Regulations, 2018, issued on March 26,
2018, said, “A person being a citizen of Afghanistan, Bangladesh or Pakistan,
belonging to minority communities in those countries, namely, Hindus, Sikhs,
Buddhists, Jains, Parsis and Christians, who is residing in India and has been
granted a Long Term Visa (LTV) by the Central government may purchase only
one residential immovable property in India as dwelling unit for self-occupation and
only one immovable property for carrying out self-employment.”
3. Visa Overstay Concessions To Non-Muslims
A visa regulation, introduced by India about a year ago, has deeply irked
Bangladesh. Following the regulation, members of the majority community of
Bangladesh, Muslims, are now paying a penalty which is at least 200 times higher
compared to the minorities, mainly Hindus, if they overstay in India.
As background to the legislative development of the CAA, amendments
made in 2004 to the Indian Citizenship Act 1955 (‘Citizenship Act’)
explicitly excluded ‘illegal migrants’ from applying for naturalization as
Indian citizens.1 An ‘illegal migrant’ is defined under s2(1)(b) of the
Citizenship Act to be a foreigner who had entered India either (i) without
a valid passport or other travel documents and such other document or
authority as may be prescribed by or under any law in that behalf; or (ii)
with a valid passport or other travel documents and such other document
or authority as may be prescribed by or under any law in that behalf but
remains therein beyond the permitted period of time’
In July of 2016 the Citizenship (Amendment) Bill 2016 was
introduced into the Lok Sabha. The 2016 Bill followed the
introduction of the Passport (Entry into India) Amendment Rules
2015 made under the Passport (Entry into India) Act 1920. The
Rules exempted persons of Hindu, Sikh, Buddhist, Parsi, Jain and
Christian faiths from Bangladesh and Pakistan, ‘who were compelled
to seek shelter in India due to religious persecution or fear of
religious persecution and entered into India on or before the 31st
December 2014’ from the requirement to possess valid travel
documents to enter and remain in India.
The Citizenship (Amendment) Bill 2019
was subsequently introduced in December
2019 and was approved by the Indian
Parliament on 11 December 2019.
Through the application of the CAA, the definition of
‘illegal migrant’ was amended to exclude from that
definition persons belonging to Hindu, Sikh, Buddhist,
Jan, Parsi or Christian faiths from Afghanistan,
Bangladesh or Pakistan who had entered India on or
before the 31st of December 2014. Thus, a person
meeting this criteria shall not be treated as an illegal
migrant.
This amendment has the effect of granting the
right to apply for citizenship to persons of one
of six religions from three specified countries
but effectively withholds the opportunity for
citizenship acquisition from persons from
other religions (most notably Muslims) and
those from other countries.
Citizenship
• Citizenship defines the relationship of any person with the particular
country and nation. It confers upon an individual certain rights which
they have which is being provided by any country to its citizens, some
of the right which include right to vote and right to hold certain public
offices, in return of some fundamental duties which the citizens of that
country need to perform.
• Under Article 11 of Indian Constitution, parliament has total power to
regulate the law regarding citizenship and same was done in the year
1955 when for the first time Citizenship Act was introduced and
passed. Entry 17, List 1 under the Seventh Schedule speaks about the
citizenship, naturalization and the aliens.
• Until the Year 1987, to be eligible for Indian citizenship, it was
sufficient for a person born in India to be citizen of India, but after
then spurred by the major of illegal immigrant from Bangladesh, this
lead to first amendment of Citizenship Bill and made that one parent
should be Indian. Again in the year 2004, the law was further amended
to prescribe that not just one parent to be Indian; but the other
should not be illegal immigrant. an illegal migrant is a foreigner who
has entered into Indian Ground without valid Passport or Visa or the
one who have entered into India with valid Passport and Visa but has
stayed beyond the permitted time period. Illegal Migrants are sending
to the jail or are sending back to their nation under the Foreigners
Act, 1946 and the Passport Act, 1920
The scenario before the passing
of the Act
• ; under the existing law the illegal migrant is not allowed to apply for
acquiring the citizenship. They were barred from becoming the citizen
of India through registration or naturalization. The Foreigners Act and
the Passport Act debar such a person and provides jail or deportation
of such people. As per Section 5 (a) of Citizenship Bill 1955 A person
of Indian origin who is ordinarily resident in India for Seven Years
before making an application for the registration; and they should have
stayed into the country for last 7 years and 12 Months continuously
before applying for the citizenship of the Republic of India.
What the Act intends to do?
• The new CAA 2019 act makes few changes in old Citizenship Act and
the passport act and the foreigners Act if the illegal migrants belongs
to the religious minority communities from the three neighboring
countries i.e., Afghanistan, Pakistan and Bangladesh. In simple terms
we can say that CAA will grant citizenship to the illegal migrants who
are non-Muslims despite them having come to India without valid
documents and the permission.
 Ministry of home affairs answers
questions on Citizenship Amendment
Act, 2019