This article talks about fundamental rights for UPSC exam.
The success or failure of a democracy depends largely on the extent to which civil liberties are enjoyed by the citizens in general. A democracy aims at the maximum development of the Individual’s personality, and the personality of the individual is inseparably bound with his liberty. Only a free society can ensure the all-round progress of its members which ultimately helps the achievement of human welfare. Thus, every democracy pays special attention to securing this bare objective to the maximum extent without, at the same time, endangering the security of the State itself. A common device that is adopted by most of them for this purpose is to incorporate a list of fundamental rights in their constitutions and guarantee them from violation by executive and legislative authorities. When legislatures were prohibited from encroaching upon certain rights through constitutional safeguards, the protection of these rights was achieved against the railway conduct of both the executive and the legislature. When an independent judiciary was made the guardian of these rights by the Constitution itself, the process of the protection of fundamental rights was complete and the enjoyment of these rights by all irrespective of wealth or social status, race or religious belief, was fully ensured. Herein lies the importance of fundamental rights. The United States has led many countries in this respect. Today the idea of a list of written rights as an integral part of a new Constitution has been generally accepted. Even the British do not seriously contest the wisdom of this arrangement and are prepared to concede its value at least to a limited extent. The rights which were thus selected by the Constituent Assembly fall broadly into two categories-public and private-but both have the same purpose in view, namely, to put an end to arbitrary rule. Among the public or political rights were the right often to choose their rulers, the right to hold them responsible for their conduct, the right to share in law-making and the right to bear arms. Among the private rights were the right to personal freedom, the right to freedom of religious belief, the right to thought and expression, and the right to quality and to the possession and use of property. The real problem that confronted the framers, however, was how to limit their selection of rights to certain categories only. What rights were fundamental and what are not, and why? If the rights of life, liberty and property were fundamental, what about right to employment and education? Has not the traditional concept of fundamental rights in its individualistic setting undergone a change in the modern era of the welfare State? The framers had no doubt about the answers to these questions. They were quite conscious of the change in the character of the modern state. They knew that the age of the American Bill of Rights which believed in the “perfectibility of man and the malignancy of Government” had gone for ever. And yet, it was a task of utmost difficulty. This was because the State in India was not yet in a position to guarantee the right to employment or education. It was a matter of physical impossibility, not the lack of will. Hence they divided these rights into two categories, justiciable and non-justiciable. Justiciable rights are those which can be enforced by a court of law. Part III of the Constitution which is entitled “Fundamental Rights” contains justiciable rights like the right of life, liberty and property. Part IV, “The Directive principles of State Policy, contains non-justiciable rights such as right to employment and education. The citizen has no judicial remedy if he is denied the enjoyment of these rights.
Doctrine of Severability
Article 13(1) and (2) use the words to the extent of inconsistency or contravention while stating that a law violating a fundamental right shall be void. The words to the extent restrict the effect of inconsistency or contravention. Had it not been for these words the offending law would have been rendered wholly void. But these words have made it clear that only that part of the law would become void which is repugnant, subject to the doctrine of severability. The doctrine of severability is that if the offending provision of an Act which is contrary to a fundamental right or unconstitutional is severable from the rest of the Act, only the offending provision would be declared void and not the whole Act. So the court must find out whether the offending part can be separated from the rest of the Act.
Test of Severability
The test to be applied is whether what remains is so Inextricably bound up with the part declared invalid that what remains cannot independently survive or whether on a fair view of the whole matter it can be assumed that the legislature would not have enacted at all that which survives without enacting the part that is ultra vires.If good and bad provisions are joined together and the enforcement of the good provisions is not made dependent on the enforcement of the bad one i.e. the good provisions can be enforced even if the bad one cannot be, the two provisions are severable and the good one will be upheld as valid. But if there is one provision which covers restrictions both within and without the limits of constitutionality, it is not possible to uphold the law which may be applied within the constitutional limits because the two types are inseparable. If there be possibility of its being applied to purposes not sanctioned by the Constitution then the whole Act must be held to be wholly invalid and void. Doctrine of severability is applicable to legislation which is partly ultra vires-that is beyond the legislative competence of the legislature. This is contemplated by Art. 254. It is applicable to an Act which is generally within the legislative competence of a legislature but certain parts are outside the scope of legislative entry. The Court has emphasized that in determining whether the valid parts of an Act can be separated from the invalid parts the determining factor is the intention of the legislature. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modification in it then the whole of it must be struck down. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it.
Validity of pre-constitutional laws
Article 13(1) is directed towards laws which were in force before the commencement of the Constitution. Article 13(2) applies to post-constitutional laws. A post-constitutional law which violates a fundamental right is void but a pre-constitutional law which violates a fundamental right remains valid till the commencement of the Constitution. It cannot operate after 26-1-1950. But what happens if the fundamental right is amended so as to remove the conflict between the law and the right.
Doctrine of Eclipse
The answer is provided by the doctrine of eclipse. This doctrine of Eclipse is applied in relation to a pre-Constitutional law (i.e. a law enacted before 26 January 1950) which was valid when it was enacted. Subsequently when the Constitution came into force a shadow falls on it because it is inconsistent with the Constitution. The Act is eclipsed. When the shadow is removed the pre-constitutional law becomes fully applicable and is free from infirmity. The doctrine of eclipse is invoked only in cases of pre-constitutional law and is not applicable in case of post-constitutional law. If a post-constitutional law is inconsistent with the Constitution it is void ab initio. A fundamental right is a constitutional limitation upon the legislative power of the legislatures. Article 13(2) expressly states this limitation. Hence after the Constitution came into force no distinction can be drawn between a law which violates a fundamental right and a law which is beyond the legislative competence of the legislature. In both cases the legislature goes beyond its powers by disregarding a constitutional limitation. The result of such travelling beyond the boundaries set by the Constitution is that a post-constitutional law which violates a fundamental right is void ab initio and no subsequent amendment of the Constitution can revive such law. It will remain dead and inoperative.
Classification Of Fundamental Rights
The six fundamental rights recognised by the Indian constitution are: 1. Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles. 2. Right to freedom which includes speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases. 3. Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings; 4. Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes. 5. Cultural and Educational rights preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice. 6. Right to constitutional remedies for enforcement of Fundamental Rights. Right to property was originally a fundamental right, but under 44th Amendment Act, right to property ceased to be a Fundamental right. Instead the right to property is mentioned under 300A of Indian Constitution, stating that no person can be deprived of his property save by law.
Significance And Characteristics
The fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. The writers of the constitution regarded democracy of no avail if civil liberties, like freedom of speech and religion were not recognised and protected by the State. According to them, “democracy” is, in essence, a government by opinion and therefore, the means of formulating public opinion should be secured to the people of a democratic nation. For this purpose, the constitution guaranteed to all the citizens of India the freedom of speech and expression and various other freedoms in the form of the fundamental rights. All people, irrespective of race, religion, caste or sex, have been given the right to move the Supreme Court and High Court for the enforcement of their fundamental rights. It is not necessary that the aggrieved party has to be the one to do so. Poverty stricken people may not have the means to do so and therefore, in the public interest, anyone can commence litigation in the court on their behalf. This is known as Public Interest Litigation. In some cases, High Court judges have acted on their own on the basis of newspaper reports. These fundamental rights help not only in protection but also the prevention of gross violations of human rights. They emphasise on the fundamental unity of India by guaranteeing to all citizens the access and use of the same facilities, irrespective of background. Some fundamental rights apply for persons of any nationality whereas others are available only to the citizens of India. The right to life and personal liberty is available to all people and so is the right to freedom of religion. On the other hand,freedom of speech and expression and freedom to reside and settle in any part of the country are reserved to citizens alone, including NRIs. The right to equality in matters of public employment cannot be conferred to overseas citizens of India. Fundamental rights primarily protect individuals from any arbitrary state actions, but some rights are enforceable against individuals. For instance, the Constitution abolishes untouchability and also prohibits begar. These provisions act as a check both on state action as well as the action of private individuals. However, these rights are not absolute or uncontrolled and are subject to reasonable restrictions as necessary for the protection of general welfare. They can also be selectively curtailed. The Supreme Court has ruled that all provisions of the Constitution, including fundamental rights can be amended. However, the Parliament cannot alter the basic structure of the constitution.Since the fundamental rights can only be altered by a constitutional amendment, their inclusion is a check not only on the executive branch, but also on the Parliament and state legislatures. Right to Equality (Articles 14-18) Article 14 declares that “the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India”. The phrase “equality before the law” occurs in almost all written constitutions that guarantee fundamental rights. Equality before the law is an expression of English Common Law while “equal protection of laws”: owes its origin to the American Constitution. Both the phrases aim to establish what is called the “equality to status and of opportunity” as embodied in the Preamble of the Constitution. While equality before the law is a somewhat negative concept implying the absence of any special privilege in favour of any individual and the equal subjection of all classes to the ordinary law, equal protection of laws is a more positive concept employing equality of treatment under equal circumstances. Thus, Article 14 stands for the establishment of a situation under which there is complete absence of any arbitrary discrimination by the laws themselves or in their administration. The Right to Equality affords protection not only against discriminatory laws passed by legislatures but also prevents arbitrary discretion being vested in the executive. In the modern State, the executive is armed with vast powers, in the matter of enforcing bylaws, rules and regulations as well as in the performance of a number of other functions. The equality clause prevents such power being exercised in a discriminatory manner. Article 14 prevents discriminatory practices only by the State and not by individuals. For instance, if a private employer like the owner of a private business concern discriminates in choosing his employees or treats his employees, unequally, the person discriminated against will have no judicial remedy.
Concept of Equality in Indian Constitution:
The word “equality” is incapable of a single definition as it is a notion of many shades and connotations. The disagreement among the philosophers and political scientists connotations indicates the want of consensus of the meaning of the term. The word is ambiguous precisely because no ready indication is forthcoming as to the common attribute with respect to which men are asserted to be equal. Attempts to identify such attributes are likely to lead to far-ranging discussions of the relation between equality and justice and between equality and liberty. It is a paradox that the more anxiously a society endeavors to secure equality of consideration for all its members, the greater will be the differentiation of treatment which, when once their common human needs have been met, it must accord to the special need of different groups and individuals among them. Now, there is a variety of ways to express the idea of equality and different writers tend to emphasize some forms of equality, rather than others, as of over-riding importance-equality before the law, equality of basic human rights, economic equality or equality of consideration for all persons or equality of opportunity. “:Every man to count for one and no one to count for more than one”. This formula contains the core of the doctrine of equality or equal rights. This formula is also ambiguous but it constitutes the irrevocable minimum of the ideal of equality. Equality as a principle amounts to not more than that every men should be treated in the same way save where there is sufficient reason for treating them differently. But many have felt uneasy about this version of equality for it seems to leave open what is to count as a sufficient reason and all kinds of individuals distinctions could make entry that way. An argument for equality before the law need not entail a belief that social equality is unrestrictedly an intrinsic good. Social equality would be good only in the case of those basic rights protected by general laws. Thus, citizens may be said to have an equal right to public education in a country, but this need not mean that once enrolled in schools they deserve to receive equal grades without regard to their performances. On the other hand, it would not seem arbitrary to consider psychological conditions as relevant to the question whether a given murderer should be treated in a special way. Since men possess some basic needs in common, they may be said to deserve equal treatment at least until those needs are minimally met. Men need food, shelter, some human companionship, sexual life and the like, simply because men are what they are. If these needs are accepted as deserving satisfaction, and if political processes are taken as necessary to their satisfaction, then whatever inequalities that may defensibly exist in society must occur only in so far as these basic needs are met. In the name of this type of equality others may unequally be taxed by the Government or required by the legislation to live up to their lot because they are more wealthy or gifted. To each according to his needs. To each according to his work. And to each according to his prior agreements. In all these cases, there is inequality and there must be many occasions where conduct is justified by appeal to the maxims in order to override criticism based on egalitarian principles. We often speak of one person deserving one thing and another deserving something else, and in so doing, we often rely on one or another of these maxims and think ourselves justified and just in doing so. So these inequalities are presumably thought of as just inequalities. W.K. Frankena in his essay on the concept of social justice has argued that there are inequalities which are required by the principle of justice and he adds, the practices that issue from such considerations are not necessarily very egalitarian. Our Constitution guarantees equality before law as a fundamental right under Article 14. The article proceeds on the basis that men are unequal in many respects. The quality of treatment before law enjoined by the article does not require that things deferent in facts be treated equally in law as thought they were the same. It only requires that those who are similarly situated should be similarly treated. As different persons should be treated differently, the law has evolved a theory of classification, fot, it is the classification which determines the range of persons affected by a special burden or benefit of law which does not apply to all persons. It is the very essence of classification that upon classes are cast burdens different from those relating to general public. The very idea of classification is that of inequality. The court has solved this paradox by neither abandoning the demand for equality nor denying the right to classification. Equal protection of law is a pledge that everybody should be treated as equal before the laws. But the laws may classify and the very idea of classification is that of inequality. A classification is valid if it includes all and only those persons who are similarly situated with respect to the purpose of the law. The formula, although simple, involves some complications. How is the purpose of the law to be ascertained with respect to each statutory classification? And what does similarly situated mean? And to what extent will the state be allowing to group together persons who are not quite similarly situated? The theory of judicial review requires the court to reconsider the question which the legislature has already considered. The court attempts to meet this difficulty by maintaining that it is not the function of the court, as it reviews legislation, to substitute its views about what is desirable for that of the legislature. It thus bows in the direction of the functional separation theory. But at the same time the court speaks of judicial restraint and the answer to the undemocratic aspect of checks and balances. Kept apart from each other, the essential incompatibility of these two attitudes often escapes notice, for self-resistant is justified, the belief in a unique judicial function is untenable. These difficulties always trouble the court at every stage of the process of applying to equality clause. The Courts have held that administrative application of a constitutional statute denies equal protection only if the action is intentional or deliberately discriminatory. Hence, a mere violation of a statute by an administrative official or a selective enforcement of criminal statute does not itself constitute denial of equal protection. Rather, an action is unconstitutional only if it is shown to have been deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification. A showing of discriminatory intent or motivation would therefore not only be a permissible but a necessary basis for challenging an administrative action on equal protection ground. The showing of international discrimination especially where ad hoc administrative action is under review constitutes a rebuttal of this presumption. Laws regulating economic activity would be viewed differently from laws which touch and concern freedom of speech and religion. Voting, procreation, rights with respect to criminal procedure etc. The prominence given to the equal protection clause in many modern opinions and decisions in America all show that the court feels less constrained to give judicial deference to legislative judgement in the field of human and civil rights than in that of economic regulation and that it is making a vigorous use of the equal protection clause to strike down legislative action in the area of fundamental human rights. Everyone has the right to a standard of living adequate for the health and well being of himself and his family, including food, clothing housing and medical care and the necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond one’s control. The direction principles of our Constitution practically lay down the same principle. As the Government’s role in providing public housing, unemployment and old-age compensation increases, notions of equal protection under the law, not merely in the sense of unbiased laws or unbiased administration of laws, but in the sense of inalienable rights to minimum living standards may emerge, as they have in the field of education, as crucial in later years. But the suggestion that Government has an affirmative duty to raise everyone to a minimum acceptable standard of living has not yet assumed to dignity of a mandatory constitutional proposition though the directive principles of our Constitution lay down this principle unequivocally.
Prohibition of Discrimination on Certain Grounds (Art. 15)
Not content with a mere general declaration of the right to equality, and fully conscious of the types of discrimination prevalent in the country, the framers went a step further in Article 15, which is more illustrative in character than introducing anything substantially new. Yet, there is one striking feature in it which bring within its scope, although in a limited way, the actions of the private individuals. According to the Article, “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Further, on the basis of any of these grounds a citizen cannot be denied access to shops, public restaurants or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.” Article 15 has, however, two notable exceptions in its application. The first of these permits the State to make special provision for the benefit of women and children. The second allows the State to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. The special treatment noted out to women and children is in the larger and long-range interest of the community itself. It also recognises the social customs and background of the country as a whole. The second exception was not in the original Constitution but was later on added to it as a result of the First Amendment of the Constitution in 1951. Equality of Opportunity in Matters of Public Employment (Art. 16) Article 16 guarantees equality of opportunity in matters of public employment. In the first part of the Article, the general rule is laid down that there shall be equal opportunity for all citizens, wherever they are living in matters of employment under the State, thereby the universality of Indian citizenship is emphasized. In the next section, the general principle is explained in detail. According to this, the State is prohibited from showing any discrimination against any citizen on grounds of religion, caste, race, sex, descent, place of birth or residence. The next clauses are in the nature of exceptions. According to the first, residence qualifications may be made necessary in the case of appointments under the State for particular positions. But instead of leaving it to individual States to make any rules they like in this regard, the power is vested in Parliament to prescribe the requirement as to residence within the State. This is intended to make the qualifying test uniform throughout India. The second exception is in favour of reservation of positions in public employment for any backward class of citizens. This is meant to help those who had very little share so far in public employment. The determination of a backward community is a matter that is left to each State Government. The third exception seeks to take out of the scope of the general principle the management of the affairs of any religious or denominational institution under any special law providing for the same. Exceptions To The Rule Of Equality: The only exceptions to the above rule of equality are: a) Residence within the state may be laid down by Parliament as a condition for particular classes of employment of appointment under any State or other local authority (Art. 16(3)). By virtue of this power, Parliament enacted the Public Employment (Requirement as to Residence) Act, 1957, empowering the Government of India to prescribe residence as condition for employment in certain posts and services in the State of Andhra Pradesh and in the Union Territories of Himachal Pradesh, Manipur and Tripura. This Act having expired in 1974 there is no provision to prescribe residence as a condition for public employment, except that for Andhra Pradesh special provisions have been made by inserting a new Art. 317D (post) in the Constitution itself. b) The State may reserve any post or appointment in favour of any backward class of citizens who, in the opinion of the State, are not adequately represented in the services under that State (Art. 16(4)). This is to provide socio-economic equality to the disadvantaged. c) Offices connected with a religious or denominated institution may be reserved for members professing the particular religion or belonging to the particular denomination to which the institution relates (Art. 16(5)). d) The claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration in the matter of appointment to services and posts under the Union and the State, as far as may be consistent with the maintenance of efficiency of the administration (Art. 335).
Mandal Commission Case
The law in regard to reservation in employment in favour of backward classes has been laid down by a 9 judge bench in Indra Sawhney v. Union of India case popularly known as Mandal Commission case. It was not a unanimous judgement. 6 judges constituted the majority and laid down the following propositions regarding reservations in employment. 1. Reservation can be made by the legislature by enacting a law or by the executive by issuing an order. 2. Article 16(4) is not an exception to Art. 16(1). They operate in the same field. Article 16(4) is an instance of classification. 3. Clause (4) lays down all that can be done in favour of backward classes in the matter of employment. 4. Backwardness contemplated by Art. 16(4) is mainly social. It need not be both social and educational as required by Art. 15(4). 5. Caste can be treated as a class. If it is socially backward it would be a backward class for the purposes of Art. 16(4). 6. The means test signifies impositions of an income limit. Persons whose income exceeds that limit are excluded from backward class. Such persons are called the creamy layer. Exclusion of the creamy layer makes a backward class truly backward. 7. Backward class cannot be identified solely by economic criterion. 8. Article 16(4) permits classification of backward classes into backward and more backward. 9. Reservation should not as a rule exceed 50%. The rule should be applied each year. It cannot be related to the total strength. 10. Vacancies can be carried forward. But it should not result in breach of 50% rule. 11. The 50% normal rule may be exceeded in extraordinary cases which must be justified. 12. There are certain services and positions in which merit alone counts. For these it will not be advisable to provide for reservations e.g. Airline pilots, Nuclear scientists, Professors, Defence Services, Super specialties in Medicines, Establishments engaged in research. 13. Article 16(4) is confined to initial appointment only and cannot extent to reservation in the matter of promotion because it would undermine efficiency of administration. 14. A permanent statutory body be appointed to examine complaints of over-inclusion and under-inclusion. 15. All disputes regarding new criteria evolved by the Central or State governments can be raised only in the Supreme Court and not before any High Court of tribunal.
Two Amendments to nullify Mandal Case
In Indra Sawhney case the Supreme Court had stated that reservation in promotion is not permitted. In order to overcome this ruling a new clause (4A) has been inserted in Art. 16. Clauses (4A) reads as under: “Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion … in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.” The effects of this amendment are: Reservation in promotion in government jobs can be made in favour of Scheduled Castes and Scheduled Tribes. b. The State may provide for reservation i.e. the extent and nature of reservation is a matter for the State to decide. c. The State must form an opinion before making reservation, that such caste or tribe is not adequately represented. Reservation in promotion was regarded by the Supreme Court as an evil because employees in the same category and seniority are superseded by colleagues whose sole claim to merit is their casts. It leads to bitterness and dissatisfaction. Political, and not national, considerations have driven the Government to take this measure. The 81st Amendment inserted clauses (4B) to nullify the rule declared by the court in the Mandal Case that the ceiling of 50% on reservation shall apply to backing vacancies for the reserve categories which could not be filled in any previous year for any reason. The new clause provides that such unfilled vacancies would not be combined with the vacancies of the year in which they are being filled up to determine the ceiling of 50% on total number of vacancies in that year. The result of this amendment is that carry forward vacancies shall always remain separate from the vacancies falling in a particular year. They are not to be clubbed for finding out whether the quota of 50% has been exceeded. This is another instance of national interest and efficiency in administration being sacrificed to gain transitory political support. Our politicians are incapable of taking a decision in the interest of unity and integrity of the nation. They opt for a decision which is likely to divide the nation if it is beneficial to them at present.
Criticism of Mandal Case
The majority judgement in the Mandal case has been criticized by many persons including the eminent lawyer N.A. Palkhivala. He supports the view of the minority (Thommen, Kuldip Singh, and Shahi J.) as stating the correct law. The minority proceeded on the footing that casteism is anathema to the Constitution and caste can never be the basis of reservation. The Government had not accepted the Report of the Backward Class Commission headed by Kala Kalekar because it was not prepared to list the caste as backward. The majority struck down provision for additional reservation of 10% for other economically backward communities. It held that caste backwardness is relevant while holding that economic backwardness is not. The decision allows the State to prescribe reservations for the majority of the population. It was no parallel in the world. All our social reformers Swami Dayanand, Swami Vivekanand, Narayan Guru, Mahatma Gandhi, Dr. Hedgewar and Dr. Ambedkar regarded caste as the bane of and curse on society. In earlier judgements the Supreme Court had refused to treat caste as class. By this decision caste has been revitalized and the nation has been cleaved into two—forward and backward. This is against the call of the Preamble—unity and integrity and opposed to the basic structure of the Constitution.
Subversion of Mandal Rule
The States have not accepted the Mandal Judgment and there have been numerous attempts to nullify the restraints imposed by the Court (apart from the 2 Constitution Amendments described above). Tamil Nadu enacted the Tamil Nadu Reservations. etc. Act, 1994 authorising it to make reservations up to 69%. By the Constitution (76th Amendment) Act this Act has been placed in 9th Schedule to protect it from attack. Following Tamil Nadu, Karnataka sought to introduce a Bill to provide 80% reservations. It was later deferred. The Creamy layer rule excluding the affluent and well placed members of a caste was made ineffective by several States. In Ashok Kumar case the Supreme Court quashed the economic criteria laid down by Bihar and U.P. Kerala followed the footsteps of Bihar and created a farcical criteria which would circumvent the requirement of excluding the creamy layer. The Court was forced to observe that the discriminatory law made by Kerala was in virtual defiance of the Rule of law and an indefensible breach of equality principle which is the basic structure of the Constitution. The Court stated that non-exclusion of creamy layer or inclusion of forward castes in the list of backward classes is totally illegal. It warned that the illegality attacking the root of the Constitution cannot be allowed to be perpetual even by a Constitutional Amendment. Thus within a decade of allowing caste-based reservation the Supreme Court is finding that it has left the door open for a flood of constitutional violations of the guarantee of equality.
National Commission and Ram Nandan Committee
In pursuance of the directions of the Supreme Court in Mandal Case the Parliament enacted the National Commission for Backward Classes Act, 1993. Its function is to examine requests for inclusion of any class of citizens as a backward class and hear complaints of over-inclusion and under-inclusion of any backward class. The Union government also appointed a committee under the chairmanship of Justice Ram Nandan to identify the cream layer. The Committee submitted its report in 1993. The report was accepted by the government.
The Abolition of Untouchability (Art. 17)
Article 17 abolishes “untouchability” and its practice in any form is made an offence punishable under the law. No article in the Constitution was adopted with such unanimity and so great an acclamation and enthusiasm as this article. The custom of untouchability had not only thrown millions of the Indian population into abysmal gloom and despair, shame and disgrace, but it had also eaten into the very vitals of the nation. There would be no better sign of the determination to eradicate the evil than incorporating this Article into the chapter on Fundamental Rights in the Constitution. The untouchability Offences Act was amended in 1976 making its penal clauses more stringent. The Act has been also renamed as the Protection of Civil Rights Act. One significant new provision of the Act is that a person convicted of an untouchability offence will be disqualified for contesting the elections. It was for the first time that such a provision became a law in the history of elections in India.
The Abolition of Titles (Art. 18)
In the creation of a society which seeks to establish political, social and economic equality and thereby aspires to become truly democratic, there is no room for some individuals to hold titles thus creating artificial distinctions among members of the same society. Recognition of titles and the consequent creation of a hierarchy of aristocracy had been denounced as an anti-democratic practice as early as the eighteenth century by both the American and the French revolutions. As democracy should not create titles and titular glories. In India, the practice of the British Government conferring a number of titles every year mostly on their political supporters and Government officers, had already created a peculiar class of nobility among the people. It is difficult, on principle, for independent India to recognise and accept these titles apart from considerations of the merit of those who held them. Article 18, therefore, abolished all titles. The only exception made to the strict rule of non-recognition of titles is that provided in favour of academic or military distinctions. Right to Personal Freedom (Articles 19-22) The Right to Freedom (Art. 19) Personal Liberty is the most fundamental of fundamental rights. Articles 19 to 22 deal with different aspects of this basic right. Taken together, these four articles form a charter of personal liberties, which provides the backbone of the chapter on Fundamental Rights. Of these, Article 19 is the most important and it may rightly be called the key-article embodying the “basic freedoms” under the Constitution, guaranteed to all citizens. These are the rights: 1. To freedom of speech and expression. 2. To assemble peaceably and without arms. 3. To form associations or unions; 4. To move freely throughout the territory of India; 5. To reside and settle in any part of the territory of India and 6. To practise any profession, or to carry on any occupation, trade or business. It is impossible to exaggerate the importance of these freedoms in any democratic society. Indeed, the very test of a democratic society is the extent to which these freedoms are enjoyed by the citizens in general. These freedoms, as a whole, constitute the liberty of the individual, the liberty is one of the most essential ingredients of human happiness and progress. As it stands now, there are eight restrictions on the freedom of speech and expression. These are in respect of the sovereignty and integrity of India, the security of the State, friendly relations with foreign State, public order, decency or morality, contempt of court, defamation, and incitement to violence.
The Right to Assemble (Art. 19 (1) (b) and 19 (3)
One of the basic protections of free speech is the right of free assembly. In fact, freedom of assembly and freedom of speech go hand in hand. The framers of the Constitution knew that the right to peaceably assemble, public debate and discussion, for political activities and such other purposes was essential to make the freedom of speech and expression real. Hence the constitutional guarantee to assemble peaceably and without arms. The right to assembly can be restricted only in the interest of public order and the restrictions ought to be reasonable.
The Right to Form Associations and Unions (Art, 19 (1) (c) AND 19(4)
The right guaranteed to form association or unions is more or less a charter for all working people, in this country. The right to form associations or union can be restricted only in the interest of public order or morality. There can be no association or union for an illegal or conspiratorial purpose. Nor can there be an association to further immorality. The right to form associations or unions however, is not available to every citizen in the same measure. A member of the public services, although he is a citizen cannot claim the right to the extent that a private citizen can. Being a Government servant, he is bound by his service rules and he cannot challenge his service rules on the ground that they stand in his way of fully enjoying the right to form associations.
The Right to Free Movement and to Residence (Art. 19(1)(d) 19(1)(e), 19 (5)
The right to move freely throughout the territory of India, to reside and settle in any part of it are guaranteed under sub-clauses (d) and (e) respectively of clause (1) of Article 19. The importance of the freedom of movement and residence cannot be exaggerated. In fact, the enjoyment of the freedoms guaranteed under the other rights depends largely on the freedom of movement unhampered and uncircumscribed. The State’s power to place reasonable restrictions of these freedoms is limited.
The Freedom of Profession, Occupation, Trade or Business (Art 19 (1)(g) and 19 (6))
Article 19 (1) (g) guarantees the freedom to practice any profession or to carry on any occupation, trade or business. A doubt was expressed in the Constituent Assembly whether these were fundamental rights at all. Perhaps the only other Constitutions which have given them the status of fundamental rights are those of Ireland and Switzerland. It seems that the framers of the Indian Constitution had been influenced by the complex social system that prevailed in India, in seeking to guarantee rights such as these. It has been the bane of India’s social life that professions were inherited rather than acquired. A society dominated by Caste, and professions based upon Caste or religion, have little to offer for the building up of a community enlivened by social mobility and dynamism. Such a society is often intolerant to persons who change the traditional professions of their ancestors and is eager to maintain a petrified social order. A constitutional guarantee of the right to take up the profession, calling, trade or business of one’s choice is indeed a significant aid to the building up of a dynamic and democratic society.
Protection in Respect of Conviction for Offences (Art-20)
Article 20 affords protection against arbitrary and excessive punishment to any person who commits an offence. There are four such guaranteed protections : (1) a person can be convicted of an offence only if he has violated a law in force at the time when he is alleged to have committed the offence; (2) No person can be subjected to greater penalty than what might have been given to him under the law that was prevalent when he committed the offence; (3) No person can be prosecuted and punished for the same offence more than once. (4) No person accused of an offence can be compelled to be a witness against himself.
Retrospective penal law or ex post factor legislation
(a) Prohibition against enacting ex post facto penal law. In other words if an act or omission was innocent when done the legislature cannot make a law which declares such act or omission a crime. The legislature cannot make law which provides for punishment of acts or omissions which were committed prior to the date when the Act came into force. If bringing gold into India was never an offence and a law is made in 1970 making import of gold into India an offence and applying the law from 1960 onwards then such law is retrospective criminal law not permitted by the Constitution. In short a new law cannot punish an old act. An act which is not an offence on the date of its commission cannot be made an offence on a subsequent date. (b) A law cannot aggravate the crime. A law cannot change the punishment and make it greater and apply it to previous offences. The new punishment (if greater) may be applied only from a future date. A commits an offence in 1970. The offence is punishable with imprisonment for 3 years. In 1972 the legislature amends the law and increases the punishment to 7 years. The revised punishment cannot be inflicted on A because the offence was committed before the date of the passing of the Act. Article 20(1) does not permit retrospective application of increased penalty. The prohibition does not apply to changes in procedural laws. A person does not have the fundamental right to be tried by a particular procedure. The accused may take the benefit of reduction in punishment.
Prohibition against conviction
Article 20(1) not only prohibits the legislature from enacting ex post facto laws depriving a person of the protection given by this article but it also lays down that no person shall be convicted of an offence. This indicates that the courts too are forbidden to pronounce on the basis of a law violating the two protections set out in Article 20(1). There is no limitation on retrospective operation on civil laws including tax laws.
Article 20(2) states No person shall be prosecuted and punished for the same offence more than once. This embodies the common law maxim memo debit vis vexari—no man shall be put twice in peril for the same offence. The U.S. Constitution contains this provision—no person shall be twice put in jeopardy of life or limb. This is commonly called double jeopardy. Double jeopardy has two aspects (a) autrefois convict and (b) autrefois acquit. The plea of autrefois convict avers that the defendant has been previously convicted in respect of the same offence and autrefois acquit is the plea that the accused has been acquitted on a charge for the same offence for which he is being prosecuted. The Constitution protects a person from being prosecuted and convicted more than once for the same offence. In other words. Article 20(2) contains the principle of autrefois convict only and does not include autrefois acquit. It is narrower than the American doctrine of double jeopardy. Protection against autrefois acquit is to be found in S. 300(1) of the Code of Criminal Procedure, 1973. It is a statutory right—not a fundamental right.
Res Judicata and Issue Estoppel
Res Judicata means ‘the thing has already been decided’. The principle is embodied in S. 11 of the Code of Civil Procedure. Res Judicata rests on the principle that where an issue of fact has been tried by a court on a former occasion the finding is final and binding on both the parties and cannot be raised again. The principle is applicable to both Civil and Criminal trials. Since the doctrine rests on the identity of issues at two trials it is known as the doctrine of issue estoppel.
Protection against self-incrimination
Clause (3) of Art. 20 is an attempt to prevent torture of the accused by investigating agencies for the purpose of extracting confession from him. This immunity is available only to a person who is accused of an offence. It can be claimed by natural persons as well as by corporations etc. The protection is confined to criminal proceedings before a court of law or a judicial tribunal. It does not extend to civil proceedings or such proceeding which are not of a criminal nature. e.g. under the Customs Act or the Foreign Exchange Regulation Act. In these proceedings a person cannot refuse to answer on the ground that it might incriminate him. Notice or pendency of contempt proceeding do not attract Art. 20(3). The condemners are not accused of an offence. Contempt proceeding are not in the nature of criminal proceeding for an offence. The protection is against compulsion to be a witness. The expression covers oral evidence and written statements conveying the accused person’s personal knowledge relating to the charge against him. But he may be compelled to produce a material object or to give specimen writing or signature or finger prints etc. If an accused voluntarily makes an incriminating statement it can be used against him.
Protection of Life and Personal Liberty (Art -21)
Article 21 is one of the shortest in the constitution over which there took place one of the longest and most through going discussions in the Constituent Assembly. It enacts that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 21 give protection to life and personal liberty to the extent therein mentioned. It does not recognise the right to life and personal liberty as an absolute right but limits the scope of the right itself. The absolute right is, by the definition in the article, qualified by the risk of its being taken away in accordance with the procedure established by law. It is this circumscribed right which is substantively protected by Article 21, as against the executive as well as the legislature,, for the Constitution has conditioned its deprivation by the necessity for a procedure established by law made by the legislature. While sub-clauses 2 to 6 of Article 19 have put a limit on the fundamental right of a citizen, Article 21 along with Article 22 puts a limit on the power of the State given under Article 246, read with the legislative lists. Under the Constitution, life and personal liberty are balanced by restrictions on the rights of the citizens as laid down in Article 19, and by the checks put upon the State by Article 21 and 22.
Right to Education (Article 21 A)
It was inserted by the 86th Constitutional Amendment Act 2002. The Right of children to Free and Compulsory Education Act came into force from April 1, 2010. This is was a historic day for the people of India as from this day the right to education will be accorded the same legal status as the right to life as provided by Article 21A of the Indian Constitution. Every child in the age group of 6-14 years will be provided 8 years of elementary education in an age appropriate classroom in the vicinity of his/her neighbourhood. Any cost that prevents a child from accessing school will be borne by the State which shall have the responsibility of enrolling the child as well as ensuring attendance and completion of 8 years of schooling. No child shall be denied admission for want of documents; no child shall be turned away if the admission cycle in the school is over and no child shall be asked to take an admission test. Children with disabilities will also be educated in mainstream schools. The Prime Minister Shri Manmohan Singh has emphasized that it is important for the country that if we nurture our children and young people with the right education, India’s future as a strong and prosperous country is secure. All schools will have to prescribe to norms and standards laid out in the Act and no school that does not fulfill these standards within 3 years will be allowed to function. All private schools will have to apply for recognition, failing which they will be penalized to the tune of Rs 1 lakh and if they still continue to function will be liable to pay Rs 10,000 per day as fine. Norms and standards of teacher qualification and training are also being laid down by an Academic Authority. Teachers in all schools will have to subscribe to these norms within 5 years. The National Commission for Protection of Child Rights (NCPCR) has been mandated to monitor the implementation of this historic Right. A special Division within NCPCR will undertake this huge and important task in the coming months and years.
Protection Against Arrest and Detention (Art – 22) Article 22 guarantees three rights. First, it guarantees the right of every person who is arrested to be informed of the cause of his arrest, secondly, his right to consult, and to be defended by a lawyer of his choice. Thirdly, every person arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours and shall be kept in continued custody only with his authority. All these rights are without any qualifications and are, therefore, in absolute terms. There are however two exceptions to the universal application of the rights guaranteed under the first two clauses of Article 22. These relate to. 1. Any person who is an enemy alien, or 2. Any person who is arrested or detained under any law providing for preventive detention. India owned freedom from foreign rule as a result of great sacrifices by thousands of patriots. Many of them died in British jails in the course of the struggle for independence, many others spent years of their lives in prison. Naturally freedom and liberty are gift too precious to all of them who lived to see India free. And they wanted to safe guard these right and facilitate their enjoyment as best as possible. Against this background it is easy to understand and appreciate the deep rooted feeling against what happened to be personal freedom during the emergency. At the same time, it must be remembered that democratic freedom in India is still too young and tender a plant to be capable of defending itself easily against overt or covert onslaughts that may be directed against it by elements which have no regard either for democratic liberties or orderly progress. Vigilance is still required to protect the country’s hard won freedom and national unity from forces of subversion and violent revolution.
The Right Against Exploitation (Art. 23 & 24 )
Article 23 and 24 deal with the right against exploitation. Article 23 which prohibits traffic in human beings and begar and similar forms of forced labour is comparable to the Thirteenth Amendment of the American Constitution abolishing slavery or involuntary servitude. At the time of the adoption of the Constitution there was hardly anything like slavery or the widespread practice of forced labour in any part of India. The National Freedom Movement since the twentieth century, had been a rallying force against such practices. However, there were many areas of the country where “untouchables” were being exploited in several ways by the higher castes and richer classes.
Prohibition of Child Labour
According to Article 24, no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment. This Article is intimately related to a Directive Principle of State Policy which calls upon the State to enforce Universal Compulsory and Free Primary Education to all children in the country up to the age of 14 years. This comes of the realisation that children should prepare during this period for the task of the future as useful and responsible citizens. Employment of children is an uncivilized and even inhuman practice. It is exploitation. It stunts their growth, corrupts their moral fibre and often drives them to delinquency. Naturally, it must be prohibited and incentives to divert them from employment should be provided. The Right to Freedom of Religion (Articles 25 TO 28) It is a paradox that while almost every religion stands for and preaches the universal brotherhood of man, religion has been a constant source of conflict in human history. The idea of guaranteed fundamental rights itself was a device directed towards the avoidance of such a contingency. The right to freedom of speech and expression, and the right to form associations and unions are also rights which guarantee religious speech and expression and the right to form religious associations and unions. But the Constituent Assembly was not satisfied with such provisions alone in its bid to infuse complete confidence in the religious minorities. It went a step further and adopted a separate group of articles dealing solely with the right of freedom of religion. The freedoms provided in Articles 25,26,27, and 28 are conceived in most generous terms to the complete satisfaction of religious minorities. Freedom of Religion and Secularism It is argued on the floor of the Assembly that the religious freedom guaranteed under the Constitution was opposed to the concept of a secular state which the constitution aimed to establish. This proposition was successfully challenged by several prominent members including those of the Drafting Committee.
Religious Freedom and the Secular State
In view of the complex and comprehensive nature of the freedom of religion, it would be hazardous to assert that our Constitution establishes full religious liberty in India. But the importance attached to this liberty in the Indian Constitution can be seen from the fact that right to freedom of religion forms one of the seven categories into which the fundamental rights given in Part III of the Constitution are divided, Religious liberties also figures prominently in the Preamble as among the objectives which the Constitution has to secure as “Liberty of the thought, expression, belief, faith and worship”. But to get an adequate idea of the nature and extent of the freedom of religion in India today, we have to pass in review the various articles, scattered all over the Constitution, which make the new India polity a Secular State. Although the modern State is a Secular State, there is much misunderstanding regarding the idea of the Secular State.
Guaranteed Religious Rights
On an analysis of Arts. 25 to 28 and perusal of the judgements the picture that emerges is that the following rights and activities are protected: (a) The State shall not establish or foster any religion. (b) The State shall not compel any person to pay any taxes which shall be used to promote or maintain any particular religion (Art. 27). (c) This right is available to all persons and not restricted to citizens (as is the case in Art. 19) (d) No religious instruction shall be provided in any educational institutions wholly funded by the State [Art. 28(1)]. (e) Religious instructions may be imparted in educational institution recognized by the State or receiving aid by the State. But a person attending such institutions cannot be compelled to attend or participate in such instructions [Art. 28(3)]. (f) Every person has the freedom of conscience and the right freely to profess, practice and propogate his religion [Art. 25(1)]. (g) Every religious denomination or any section of it has the right to- a. establish and maintain instructions for religious and charitable purposes b. to manage its religious affairs c. to own and acquire property d. to administer such property (h) Secularism is a basic feature of the Constitution.
A Secular State is not necessarily anti-religious or atheistic. Only, it is neutral in matters of religions. It considers that the various religious opinions, whether professed by the majority or minority communities, are deserving of equal treatment. The citizens in a Secular State may have any religion he likes or no religion at all, and the State does not persecute him or impose disabilities in him because of his religious opinion. But the Secular State, while allowing the fullest possible freedom of conscience, would not allow religion to interfere in politics. In other words, the Secular State seeks to draw a distinction between “the things that are God’s ” and ” the things that are Caesar’s”. The separation of the Church from the State is inherent in the idea of the Secular State. A Secular State deals only with the relations between man and man and not between man and God. However, if this view were to prevail, it would mean the acceptance by the State of a particular religious opinion, which, as historical experience proves, may be detrimental to the proper maintenance of religious freedom for those who do not profess the religion recognised by the State. The secular nature of the Indian polity can be demonstrated in various ways. The constitution makes it clear that no one religion shall be singled out for endowment by the State. No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses of any particular religion or religious denomination – Article 27, Article 28, dealing with the freedom as to attendance at religious instruction or worship in educational institutions, lays down that no religious instruction shall be provided in any educational institution wholly maintained out of State funds. However, reasonably enough, this provision shall not apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution. On the other hand, no person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached there to unless such person or , if such person is a minor, his guardian has given his consent. In conformity with the principle of the Secular State the Constitution establishes a single common citizenship. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them Article 15(1). In particular, no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, bo subject to any disability, restriction or condition with regard to : (a) access to shops, public restaurants, hotels and places of public entertainment, or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public Article 15 (2). The educational facilities provided by the State are to be enjoyed equally by all the citizens. No citizen shall be denied admission into any educational institution funded by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them – Article 29 (2). The equality of the main political, viz, the right to be elected, and the right to hold public office, is guaranteed to all irrespective of religion, as is seen from the following provisions of the Constitution. There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or either House of the legislature of a State and no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste sex or any of them – Article 325. Articles 84 and 173, dealing with the eligibility for election to the Parliament and the State Legislature respectively, do not make membership of a particular religion a condition of eligibility or a ground for disqualification. Regarding the right to hold public office, the Constitution lays down that no citizen shall, on grounds only of religion, race caste, sex, descent, place of birth, residence or any of them be ineligible for, or discriminated against in respect of, any employment or office under the State Article 16(2). Conversely, Article 23(2), arming the State with the power of imposing compulsory service for public purposes limits the exercise of this power by providing that the State, in imposing such service shall not make any discrimination of grounds only of religion, race, caste or class or nay of them. Although the freedom of religion guaranteed by Article 25 is wide in scope, it is far from being absolute. It is subject to public order, morality and health, and to the other provision of Part III of the Constitution Article 25(1). This freedom also shall not affect the operation of any existing law, or prevent the State from making any law, (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, and (b) regulating for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. It may appear strange that morality should be made a ground for limiting religious liberty. It is commonly believed that religion and morality are so closely connected that whatever is sanctioned by religion is ipso-facto moral. This naive belief is not justified by facts, for in actual practice, we find that religion and morality are sometimes as poles apart. Ideally, of course, there should be no conflict between religion and morality. For religion is concerned with the right relation between God ? However, observation shows that several religious practices are not genuinely religious at all. The fact is that religion is very closely mixed up with the social life of the people. It, is therefore, necessary to disentangle the essentials of religion from the mass of customs and practice which envelop them and which • often tend to parody the basic conceptions of a good life, and even become an antithesis of social justice and morality. For example, practices such as that of “Sati” or other forms of human sacrifice, of untouchability, of imposing different kinds of disabilities on women, of early marriages, bigamy, dedication of devdasis, which are palpably abhorrent to the social conscience and cannot be tolerated even if they are supposed to be sanctified by religion. Indian constitution gives the State the power of regulating and restricting any secular activity associated with religious practice. However, as it is not always easy to determine what is a purely secular and what is purely religious activity, it will depend on what view the judges take of any legislation under this constitutional provision. It must be granted that religion cannot be allowed to sabotage the real progress of the community and the State, which has the duty of promoting the common good, must have the power of providing for social welfare and progress. It further may be noted that the provisions of the Indian Constitution regarding the right to religious liberty cover all the freedoms relating to religion set forth in the Universal declaration of Human Rights, which was adopted by the General Assembly of the United Nations at the Palais de Chaillot, Paris, on December 10, 1948. Article 18 of this important document states, “Everyone has the right to freedom of though, conscience and religion, this right includes freedom to change his religion or belief, and freedom either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Since the General Assembly has proclaimed this Declaration of Human Rights as a common standard of achievement for all peoples and all nations, Indians may well be proud that at least in the matter of religious freedom their Constitution represents a world ideal. Freedom of Conscience, etc. Article 26, is in fact, a corollary to Article 25 and guarantees the freedom to manage religious affairs. According to this, every religious denomination is given the right (a) to establish and maintain institutions for religious and charitable purposes, (b) to manage its own affairs in matters of religion, (c) to own and acquire movable and immovable property, and (d) to administer such property in accordance with law. Article 27 provides an additional protection to religious activity by exempting funds appropriated towards the promotion or maintenance of any particular religion from the payment of taxes. Permissible Restrictions Articles 25 and 26 are not absolute. The commencing words of both the articles are subject to public order, morality and health. On that basis the following are some of the restrictions which have been held to be permissible. 1. The State can impose restrictions on the use of loudspeakers for Azan or for singing kirtans etc. The prohibition is for safeguarding the health of the people. Use of loudspeakers is not an essential and integral part of a religion. 2. The Muslims have no right to stop the procession of a community on the ground that the music being played operates as a nuisance or offends against their sentiments. 3. Abolition of hereditary rights of archakas (priests) is not interference with essential religious practice. 4. Sacrifice of cows on the occasion of Bakrid was not an essential part of Muslim religion and the State may prohibit cow slaughter. 5. The Act taking over the management of Aurobindo Society was held valid because the Society and Auroville were not religious institutions. The teachings of Shri Aurobindo do not constitute a religion. 6. Polygamy is not an essential part of the Hindu religion so it can be prohibited by law. This is for reform of the Hindus. 7. The Aligarh Muslim University was established by the Parliament and the muslims cannot claim a right to run that university. 8. The Jagannath Temple Act by which the government vested the secular activities in a committee is valid because it did not interfere with religious practices.
Right to excommunicate
In Dawoodi Bohra Case the constitutionality of a Bombay Act was challenged. The Act purported to prevent excommunication. The head of the Bohra sect claimed that his right to excommunicate was an integral part of their faith. The Supreme Court by a majority of 4:1 upheld the contention and declared certain parts of the impugned Act as invalid. So excommunication on religious grounds is permitted but not on non-religious grounds. The judgement has been criticized by jurists. In fact the right has been often used to curb criticism and reform and to deny freedom of speech to the Bohra community.