Article 20: Protection in respect of conviction for offenses
The Article 20 is one of the pillars of fundamental rights guaranteed by the Con-
stitution of India. It mainly deals with protection of certain rights in case of con-
viction for offences. In other words, it lays down certain safeguards to the per-
son accused of crimes as stated below:
Ex post facto law (Art. 20(1).
Double Jeopardy (Art. 20(2); and
Self-incrimination (Art. 20(3).
1. Ex Post Facto Law (Art. 20(1): Article 20(1) of the Indian Constitution
prohibits Ex Post Facto laws. The expression Ex Post Facto Law means
law which is in force. A person cannot be punished for violation of law
which is not in force at the time of crime. Eg. The Dowry Prohibition
Act, 1961 came into force from 20.5.1961. A person guilty of accepting
dowry is punishable under the Act after 20.5.1961 and not before
20.5.1961.
2. Double Jeopardy (Art. 20(2): Double jeopardy which means that person
must not be punished twice for the offence and if a person is punished
twice for the same offence it is termed Double jeopardy.
Self-Incrimination [Art. 20(3)]: The expression self-incrimination means con-
veying information based upon personal knowledge of the person giving in-
formation involving himself to be the prime part taken in the offence. A person
shall not be asked to make statements against himself (i.e. self-harming state-
ments/confessional statements) and the protection is against compulsion to be a
witness.
Article 21: 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.
Article 21 secures two rights:
Right to life
Right to personal liberty
The Supreme Court has reaffirmed its judgement in the Menaka case in the sub-
sequent cases. It has declared the following rights as part of Article 21
Right to live with human dignity.
Right to decent environment including pollution free water and air and
protection against hazardous industries.
Right to livelihood.
Right to privacy.
Right to shelter.
Right to health.
Right to free education up to 14 years of age.
Right to free legal aid.
Right against solitary confinement.
Right to speedy trial.
Right against inhuman treatment.
Right against delayed execution.
Right to travel abroad.
Right against bonded labour.
Right against custodial harassment.
Right to emergency medical aid.
Right to timely medical treatment in government hospital.
Right to fair trial.
Right of prisoner to have necessities of life.
Right of women to be treated with decency and dignity.
Right to information.
Right to reputation.
Right of appeal from a judgement of conviction
Right to social security and protection of the family
Right to social and economic justice and empowerment
Right to appropriate life insurance policy
Right to sleep
Right to freedom from noise pollution
Right to electricity
Artic 21 A: Right to education The Constitution (Eighty-sixth Amendment)
Act, 2002 inserted Article 21-A in the Constitution of India to provide free and
compulsory education of all children in the age group of six to fourteen years as
a Fundamental Right in such a manner as the State may, by law, determine. The
Right of Children to Free and Compulsory Education (RTE) Act, 2009, which
represents the consequential legislation envisaged under Article 21-A, means
that every child has a right to full time elementary education of satisfactory and
equitable quality in a formal school which satisfies certain essential norms and
standards.
The RTE Act provides for the:
Right of children to free and compulsory education till completion of ele-
mentary education in a neighbourhood school.
It clarifies that ‘compulsory education’ means obligation of the appropri-
ate government to provide free elementary education and ensure com-
pulsory admission, attendance and completion of elementary education to
every child in the six to fourteen age group. ‘Free’ means that no child
shall be liable to pay any kind of fee or charges or expenses which may
prevent him or her from pursuing and completing elementary education.
It makes provisions for a non-admitted child to be admitted to an age ap-
propriate class.
It specifies the duties and responsibilities of appropriate Governments,
local authority and parents in providing free and compulsory education,
and sharing of financial and other responsibilities between the Central
and State Governments.
It lays down the norms and standards relating inter alia to Pupil Teacher
Ratios (PTRs), buildings and infrastructure, school-working days,
teacher-working hours.
It provides for rational deployment of teachers by ensuring that the spe-
cified pupil teacher ratio is maintained for each school, rather than just as
an average for the State or District or Block, thus ensuring that there is no
urban-rural imbalance in teacher postings. It also provides for prohibition
of deployment of teachers for non-educational work, other than decennial
census, elections to local authority, state legislatures and parliament, and
disaster relief.
It provides for appointment of appropriately trained teachers, i.e. teachers
with the requisite entry and academic qualifications.
It prohibits (a) physical punishment and mental harassment; (b) screening
procedures for admission of children; (c) capitation fee; (d) private tuition
by teachers and (e) running of schools without recognition,
It provides for development of curriculum in consonance with the values
enshrined in the Constitution, and which would ensure the all-round de-
velopment of the child, building on the child’s knowledge, potentiality
and talent and making the child free of fear, trauma and anxiety through a
system of child friendly and child centred learning.
Article 22: Protection against arrest and detention in certain cases:
The first part of the Article 22 confers the following rights on a person who is
arrested or the detained under the ordinary law:
(i) The right to be informed of the grounds of arrest.
(ii) The right to consult and to be defended by the legal practitioner.
(iii) The right to be produced before a magistrate within 24 hours, excluding the
journey of the time.
(iv) Right to be released after 24 hours unless the magistrate authorizes further
detention. In fact, these safeguards are not available to an alien or a person ar-
rested or to detain under a preventive the detention law.
The second part of the Article 22 grants protection to the persons who are ar-
rested or detained under the preventive detention law. Well, this protection is
available to both the citizens as well as aliens and it includes the following:
(i) The detention of the person cannot exceed three months unless an advisory
board reports sufficient cause for the extended detention. In fact, the board is to
consist of the judges of the high court.
(ii) The grounds of detention should be communicated to the detenu. However,
the facts which is considered to be against the public interest need not be dis-
closed.
(iii) The detenu should be afforded an opportunity to make a representation
against the detention order. The essence of Article 22(2) is that this right is
available only against illegal detention and not against custody of person on the
basis of a judicial order.
Safeguards against the misuse of power of Detention
1. The Every case of the preventive detention must be authorized by the law
and not at the will of the executive.
2. In fact, the Preventive detention cannot extend beyond a period of the 3
months .
3. The every case of the preventive detention must be placed before an Ad-
visory Board composed of the Judges of the High Court (or persons quali-
fied for Judges of the High Court)
4. In fact, the case must be presented before the Advisory Board approx
within 3 months.
5. A continued detention after 3 months must have consent of the Advisory
Board.
6. In fact, the person will be given the opportunity to afford the earliest op-
portunity to make a representation against the preventive detention.
7. No person can be detained indefinitely.
Examples of Preventive Detention Laws
Maintenance of Internal Security Act (MISA), 1971.
Well, the MISA was basically a modified version of the PDA Act. It
was abolished in the year of 1978.
The conservation of the Foreign exchange and also the Prevention of
Smuggling Activities (COFEPOSA) was enacted in the year of 1974
and it continued.
National Security Act (NSA), 1980.
Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985.
Repealed in 1995
The prevention of Illicit Traffic in the Narcotic Drugs and also the
Psychotropic Substances Act (PITNDPSA), 1988.
Prevention of Terrorism Act (POTA), 2002. Repealed in 2004.
The Karnataka Prevention of Dangerous Activities of Bootleggers,
Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and
Slum-Grabbers Act (Act 12 of 1985), as amended by Act 16 of 2001
3. RIGHT AGAINST EXPLOITATION (ARTICLES 23-24)
The citizens have been guaranteed the right against exploitation through Art-
icles 23 and 24 of the Constitution. These two provisions are:
Article 23: Prohibition of traffic in human beings and forced labour
Traffic in human beings and beggar and other similar forms of forced labour are
prohibited and any violation of this provision shall be an offence punishable in
accordance with law. Traffic in human beings means selling and buying of hu-
man beings as material goods. Trafficking, especially of young women, girls
and even boys is continuing as an illegal trade. Earlier especially in the feudal
Indian society, people belonging to the poor and downtrodden sections were
made to do work free of charge for landlords and other powerful people. This
practice was Beggar or forced labour
Article 24: Prohibition of employment of children in factories, etc
As the Constitution provides, no child below the age of fourteen years shall be
employed to work in any factory or mine or engaged in any other hazardous em-
ployment. This right aims at eliminating one of the most serious problems, child
labour, that India has been facing since ages. Children are assets of the society.
It is their basic right to enjoy a happy childhood and get education.
4. RIGHT TO FREEDOM OF RELIGION (ARTICLES 25-28)
One of the objectives declared in the Preamble is “to secure to all its citizens
liberty of belief, faith and worship”. Since India is a multi-religion country,
where Hindus, Muslims, Sikhs, Christians and many other communities live to-
gether, the Constitution declares India as a ‘secular state’. It means that Indian
State has no religion of its own. But it allows full freedom to all the citizens to
have faith in any religion and to worship, the way they like. But this should not
interfere with the religious beliefs and ways of worship of other fellow beings.
In respect of the Right to freedom the Constitution makes the following four
provisions under Articles 25-28:
Article 25: Freedom of conscience and free profession, practice and propaga-
tion of religion
All persons are equally entitled to freedom of conscience and the right to pro-
fess, practise and propagate religion freely. However, it does not mean that one
can force another person to convert his/her religion by force or allurement.
Also, certain inhuman, illegal and superstitious practices have been banned. Re-
ligious practices like sacrificing animals or human beings, for offering to gods
and goddesses or to some supernatural forces are not-permissible. Similarly, the
law does not permit a widow to get cremated live with her dead husband (volun-
tarily or forcibly) in the name of Sati Pratha. Forcing the widowed woman not
to marry for a second time or to shave her head or to make her wear white
clothes are some other social evils being practised in the name of religion. Be-
sides the above stated restrictions, the State also has the power to regulate any
economic, financial, political or other secular activities related to religion. The
State can also impose restrictions on this right on the grounds of public order,
public morality and public health.
Article 26: Freedom to manage religious affairs
Subject to public order, morality and health, every religious group or any sec-
tion thereof shall have the right (a) to establish and maintain institutions for reli-
gious and charitable purposes; (b) to manage its own affairs in matters of reli-
gion; (c) to own and acquire movable and immovable property; and (d) to ad-
minister such property in accordance with law.
Article 27: Freedom not to pay taxes for promotion of any particular religion
No person shall be compelled or forced to pay any tax, the profits of which are
used for promotion or maintenance of any particular religion or religious sect.
Article 28: Freedom as not to attend religious instruction or religious worship in
certain educational institutions
No religious instruction shall be provided in any educational institution wholly
maintained out of State funds. However, it will not apply to an educational insti-
tution which is administered by the State but has been established under any
trust which requires that religious instruction shall be imparted in such an insti-
tution. But no person attending such an institution shall be compelled to take
part in any religious instruction that may be imparted there or attend any reli-
gious worship that may be conducted there. In case of a minor, the consent of
his/her guardian is essential for attending such activities.
5. CULTURAL AND EDUCATIONAL RIGHTS
India is the largest democracy in the world having diversity of culture, scripts,
languages and religions. As we know the democracy is a rule of the majority.
But the minorities are also equally important for its successful working. There-
fore, protection of language, culture and religion of the minorities becomes es-
sential so that the minorities may not feel neglected under the majority rule. In
Articles 29-30 two major provisions have been made:
Article 29: Protection of interests of minorities
Any minority group having a distinct language, script or culture of its own shall
have the right to conserve the same. 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.
Article 30: Right of minorities to establish and administer educational institu-
tions
All Minorities, whether based on religion or language, have the right to estab-
lish and administer educational institutions of their choice.. The State shall not,
in granting aid to educational institutions, discriminate against any educational
institution on the ground that it is under the management of a minority, whether
based on religion or language.
6. RIGHT TO CONSTITUTIONAL REMEDIES
Since Fundamental Rights are justiciable, they are just like guarantees. They are
enforceable, as every individual has the right to seek the help from courts, if
they are violated. Our constitution provides legal remedies for the protection of
our Fundamental Rights. This is called the Right to Constitutional Remedies as
laid down in Article 32. When any of our rights are violated, we can seek justice
through the highest court. The Supreme Court and High issue writs for the en-
forcement of Fundamental Rights.
Types of Writs: There are five types of Writs -Habeas Corpus, Mandamus, Pro-
hibition, Certiorari and Quo warranto.
1. Habeas Corpus: "Habeas Corpus" is a Latin term which literally means "you
may have the body." The writ is issued to produce a person who has been de-
tained , whether in prison or in private custody, before a court and to release
him if such detention is found illegal.
2. Mandamus: Mandamus is a Latin word, which means "We Command". Man-
damus is an order from the Supreme Court or High Court to a lower court or
tribunal or public authority to perform a public or statutory duty. This writ of
command is issued by the Supreme Court or High court when any government,
court, corporation or any public authority has to do a public duty but fails to do
so.
3. Certiorari: Literally, Certiorari means to be certified. The writ of certiorari
can be issued by the Supreme Court or any High Court for cancelling the order
already passed by an inferior court, tribunal or quasi judicial authority.
4. Prohibition: The Writ of prohibition means to forbid or to stop and it is pop-
ularly known as 'Stay Order'. This writ is issued when a lower court or a body
tries to transgress the limits or powers vested in it. The writ of prohibition is is-
sued by any High Court or the Supreme Court to any inferior court, or quasi ju-
dicial body prohibiting the latter from continuing the proceedings in a particular
case, where it has no jurisdiction to try. After the issue of this writ, proceedings
in the lower court etc. come to a stop.
The writ of prohibition is available during the pendency of proceedings, the writ
of certiorari can be resorted to only after the order or decision has been an-
nounced.
5. The Writ of Quo-Warranto: The word Quo-Warranto literally means "by
what warrants?" or "what is your authority"? It is a writ issued with a view to
restrain a person from holding a public office to which he is not entitled. The
writ requires the concerned person to explain to the Court by what authority he
holds the office. If a person has seized a public office, the Court may direct him
not to carry out any activities in the office or may announce the office to be va-
cant. Thus High Court may issue a writ of quo-warranto if a person holds an of-
fice beyond his retirement age.
What is Public Interest Litigation?
Public Interest Litigation (PIL), means a legal action initiated in a court of law
for the enforcement of public interest or general interest in which the public or
class of the community have pecuniary interest or some interest by which their
legal rights or liabilities are affected.
A Public Interest Litigation (PIL) can be filed in any High Court or directly in
the Supreme Court. PIL is filed for securing fundamental rights of group of
people.
PIL cannot be filed for individual/ personal interest and political interest. PILs
are usually filed for issues like:
1. bonded labour.
2. neglected children.
3. workers and on labour laws
4. harassment in prisons
5. custodial death
6. violence against women, sc/st
7. environmental pollution, disturbance of ecological balance, drugs, food
adulteration, etc
Critical Analysis: With the view to regulate the abuse of PIL the apex court it
has framed certain guidelines (to govern the management and disposal of PILs.)
The court must be careful to see that the petitioner who approaches it is acting
bona fide and not for personal gain, private profit or political or other oblique
considerations. The court should not allow its process to be abused by politi-
cians and others to delay legitimate administrative action or to gain political ob-
jectives. Political pressure groups who could not achieve their aims through the
administrative process or political process may try to use the courts (through the
means of PILs) to further their closely vested aims and interests.
There may be cases where the PIL may affect the right of persons not before the
court, and therefore in shaping the relief the court must invariably take into ac-
count its impact on those interests and the court must exercise greatest caution
and adopt procedure ensuring sufficient notice to all interests likely to be af-
fected.
At present, the court can treat a letter as a writ petition and take action upon it.
But, it is not every letter which may be treated as a writ petition by the court.
The court would be justified in treating the letter as a writ petition only in the
following cases-
(i) It is only where the letter is addressed by an aggrieved person
or
(ii) a public spirited individual or
(iii) a social action group for enforcement of the constitutional or the legal
rights of a person in custody or of a class or group of persons who by reason of
poverty, disability or socially or economically disadvantaged position find it
difficult to approach the court for redress.
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