Fundamental Rights

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Fundamental Rights

Introduction:

Fundamental Rights are defined in Part III of the Constitution and are guaranteed to all persons without any discrimination.

Six Fundamental Rights given in the constitution

Importance of FRs:

Promotes democratic value
It protects the liberties and freedom of the citizens against any invasion by the state.
Individual development: Essential for the all-round development (material, intellectual, moral and spiritual) of the individuals and the country.
Prevents: Establishment of the authoritarian and dictatorial rule in the country.
Limits tyranny: It acts as a limitation on the tyranny of the executive and arbitrary laws of the legislature.
Rule of Law: They aim at establishing ‘a government of laws and not of men’.

Features of FRs:

Availability: Some of the FRs are available only to the citizens (Article 15, 16, 19, 29, 30) while others are available to all persons whether citizens, foreigners or legal persons like corporations or companies.
Not absolute but qualified: Reasonable restrictions can be imposed by the state based on reasonableness as they are not absolute but qualified.
Justiciable in nature: They are defended and guaranteed by the Supreme Court.
Checks authoritarianism: Most of them are available against the arbitrary action of the State, with a few exceptions like of private individuals.
Positive and Negative in nature: Some of them are negative in character, i.e., place limitations on the authority of the State, while others are positive in nature, conferring certain privileges on the persons.
Neither sacrosanct nor permanent: They can be curtailed or repealed by Parliament without affecting the ‘basic structure’ of the Constitution or can be suspended during national emergency.
Restrictions: Their application can be restricted:

To the members of armed forces, para-military forces, police forces, intelligence agencies and analogous services can be restricted or abrogated by the Parliament (Article 33).
While martial law is in force in any area (Article 34)

Detailed Analysis of Fundamental Rights (FR’s)

Article 12: It defines the term ‘state’ for the purposes of Part III.

Article 12 and applicability on United Nation (UN): The Delhi High Court has ruled earlier that the UN is not a State under Article 12 and hence cannot be brought under the jurisdiction.
Article 12 and PM CARES fund: The Centre recently informed the Delhi High Court in a plea seeking to declare the fund a ‘state’ under Article 12 that:

PM CARES Fund is set up as a public charitable trust and is not created under the Constitution or any law made by the Parliament or the state.

Judiciary under Article 12

Judicial & Non-Judicial Function: When the Judiciary is discharging Judicial functions, it is not regarded as a State whereas the non-judicial function brings it under the definition of ‘State’.

Related cases:

Naresh Shridhar Mirajkar case (1966): Judiciary should be put under the ambit of Article 12, otherwise the courts would be allowed to make rules which violate the fundamental rights of the citizens.
Rupa Ashok Hurra v. Ashok Hurra case (2002): Superior courts of justice do not fall within the ambit of ‘state’ or ‘other authorities’ under Article 12.
Riju Prasad Sarmah Case (2015): The court again held that when a court is acting in its judicial capacity, it cannot be regarded as a State. However, its administrative action is amenable to the writ jurisdiction.

Article 13: It declares that any law that is inconsistent with or in derogation of any of the fundamental rights shall be void. Thus, it expressively provides for the doctrine of judicial review.

The power of Judicial Review: Supreme Court (Article 32) and the High Courts (Article 226).

Personal laws and Article 13: The judiciary in various decisions had avoided to take decisions on personal matters as these are related to religion and are sensitive issues.

Nevertheless, there have been instances where courts have had set aside the personal laws, e.g., triple talak in India,

Right to Equality (Article 14-18)

Article 14 (Equality before law)

The State shall not deny to any person Equality before Law or Equal Protection of Law within the territory of India.

Article 14 forbids class legislation but permits reasonable classification of persons, objects and transactions by the law. But the classification should not be arbitrary, artificial or evasive. Ex: Women & children, socially and economically backward classes, SC and ST etc.

The Citizenship (Amendment) Act and Article 14: S. R. Bommai Case (1994)- The Supreme Court held that no law can be enacted by the Parliament or by a state legislature on the basis of religion.
NHAI case (2021): The SC held that every action of the state must be fair, failing which, it will fall foul of the fundamental right to equality enshrined in Article 14 of the Constitution.
The Supreme Court has held that every action of the state must be fair, failing which it will fall foul of the fundamental right to equality enshrined in Article 14 of the Constitution.

Article 15 (Prohibition of discrimination on certain grounds)

It has two provisions:

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
No citizen shall be subject to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex, place of birth or any of them:

Reservation policy in India:

Current reservation status in India: SC (15%), ST (7.5%), OBC (27%), PwD (3%) and EWS (10%).
Indra Sawhney Case (1992): Upheld 27% quota in government jobs for backward classes with elimination of Creamy Layer, is constitutionally valid.

The total reservation shall not exceed 50% of seats and they shall only confine to initial appointments and not to promotions.

M. Nagaraj Case (2006): Validated reservations for SCs and STs to include promotions with three conditions for stats:

To provide proof for the backwardness of the class benefitting from the reservation.
To collect quantifiable data showing inadequacy of representation of that class in public employment.
To show how reservations in promotions would further administrative efficiency.

Jarnail Singh Case (2018): SC held that the government need not collect quantifiable data to demonstrate backwardness of SC/STs to provide reservations for them in promotions.

Exceptions to Article 15: Special provision for women and children, for the advancement of any socially and educationally backward classes of citizens or SCs & STs.

Supreme court on 103rd AA (EWS): In a 3-2 majority, the SC upheld the 103rd CAA providing EWS reservation. With this, the Court extended the net of reservation benefits to include solely economic backwardness.

Reservation to OBCs in the local bodies (Triple Test): Allahabad High Court ordered the UP government to hold urban local body elections without reservation for Other Backward Classes (OBCs) because the ‘triple test’ requirement for the quota had not been fulfilled.

The triple test (outlined in Vikas Kishanrao Gawali vs. State of Maharashtra and others, 2021) requires the government to complete three tasks. These include:

To set up a dedicated commission to conduct a rigorous empirical inquiry into the nature and implications of the backwardness in local bodies,
To specify the proportion of reservation required in local bodies in light of recommendations of the commission, so as not to fall foul of overbreadth,
To ensure reservation for SCs/STs/OBCs taken together does not exceed an aggregate of 50% of the total seats.

Way Forward for Reservations in India

Revisiting Reservation: A Step Towards Transformative Constitutionalism:

Justice Bela M. Trivedi, in the majority judgment of EWS quota, highlights the importance of setting a time span for the reservation policy.
- After 75 years of Independence, she suggests a reevaluation of the system in the larger interest of society, as a progressive move towards transformative constitutionalism.

Article 16 (Equality of opportunity in matters of public employment)

No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds of only religion, race, caste, sex, descent, place of birth or residence.
Exception: Parliament can prescribe residence as a condition for certain employment or appointment in a state or union territory or local authority or other authority.

Demand for local reservation: Various states have passed a law mandating reservation of jobs in the private sector for locals of that states. E.g., Andhra Pradesh, Haryana etc.

Way Forward:

Protecting Workplace Diversity: The Centre should discourage such legislation that jeopardizes workplace diversity.
Preserving Social Fabric: Imposing insularity through such law’s risks immobilizing the talented young workforce and disrupting the social fabric.
Preventing Unstoppable Consequences: Urgent central intervention is necessary to prevent a downward spiral that could have far-reaching and irreversible consequences.

Declining Investment Appeal and Local Reservation Issue in Haryana Investment Share:

Haryana's share of new investment projects in the country dropped to a six-year low of 1.06% in 2022-23, significantly down from almost 3% the previous year.
Total investment outlays announced in the state decreased by 30% to around ?39,000 crore in 2022-23, compared to nearly ?56,000 crore in 2021-22.
Impact of Local Reservation Issue: The decline in investments can be attributed, in part, to the uncertainties and concerns raised by the implementation and impact of local reservation policies in Haryana.
Investor Confidence: The local reservation issue may have created a sense of uncertainty and hesitation among potential investors, leading to a decrease in investment inflow.

Rise of Anti-Migrant Legislation in India:

Despite constitutional provisions protecting the rights of all citizens, there has been a concerning trend in the past few years of anti-migrant rhetoric manifesting as legislative measures.
Andhra Pradesh: In 2019, the Andhra Pradesh government passed the Employment of Local Candidates in the Industries/Factories Bill, reserving 75% of jobs for locals. This law faced legal challenges accepted by the Andhra Pradesh High Court.
Spreading Trend: Similar demands for such laws are emerging in other states like Madhya Pradesh and Goa, indicating a growing clamor for similar measures.
Violates Constitutional Provisions: Contradicts Article 19(1)(g) and Article 16(2).
Reputation Impact: Affects India's image as a stable, trustworthy investment destination with a skilled workforce.
Unemployment Concerns: Rising joblessness may prompt more states to follow suit, potentially impacting internal capital flows.

Article 17: Abolition of Untouchability

It abolishes ‘untouchability’ and forbids its practice in any form. The enforcement of any disability arising out of “uuntouchability” shall be an offence punishable in accordance with law.
Protection of Civil Rights Act, 1955: It enlarged the scope and made penal provisions more stringent given under the uuntouchability (Offences) Act, 1955.
Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989: For prevention of atrocities on SCs and STs and practice of untouchability by increased surveillance.
Maharashtra's law against social boycott: The new law disallows social boycott in the name of caste, community, religion, rituals or customs.

Case	Key Points
Subhash Kashinath Mahajan Case (2018)	Supreme Court banned immediate arrest for insulting or injuring SC/ST members Allowed anticipatory bail for those booked for committing atrocities against SC/ST
SC and ST (Prevention of Atrocities) Act, 2018	No preliminary inquiry required for FIR registration No approval needed before arrest Rules out anticipatory bail
Prithvi Raj Chouhan Case (2020)	Amendment Act, 2018 upheld Pre-arrest bail granted only in exceptional situations Anticipatory bail allowed in exceptional cases by Courts, not in every case

Way Forward: To achieve Article 17's vision of eradicating untouchability and caste discrimination:

Promote awareness and education????Strengthen legal framework????Empower marginalized communities????Encourage social integration????Combat prejudice and stereotypes????Support grassroots movements????Sensitize government machinery????Strengthen monitoring and reporting????Foster social solidarity????Embrace inclusive policies.

Article 18: Abolition of Titles

It abolishes titles and provides certain conditions including:

It prohibits the state from conferring any title on any citizen or a foreigner (except a military or academic distinction).
It prohibits a citizen of India from accepting any title from any foreign state.
A foreigner holding any office of profit or trust under the state cannot accept any title from any foreign state without the consent of the President of India.
No citizen or foreigner holding any office of profit or trust within the territory of India can accept any present, emolument or office from or under any foreign State without the consent of the president.

Right to Freedom (Article 19-22)

Article 19 (Protection of certain rights regarding freedom of speech, etc.)

Article 19: Fundamental freedoms in Indian Constitution

Freedom of speech and expression????Freedom of assembly????Freedom of association????Freedom of movement????Freedom of residence and settlement????Freedom of profession, occupation, trade, or business.

Restrictions apply in the interest of sovereignty, public order, morality, or India's integrity.

Freedom of Movement: It has two dimensions

Internal movement (right to move inside the country) – Protected by Article 19.External movement (right to move out of the country and right to come back to the country) – Protected under Article 21.

Expansion of scope of Article 19: The SC recently in a 4-1 majority ruling said that “a fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities”.

Significance: The court, extending free speech against private citizens, opens up a range of possibilities in Constitutional law.

It extended the ground for seeking these rights against other citizens.

This interpretation could also bring an obligation on the state to ensure private entities also abide by Constitutional norms.

These questions could hypothetically range from seeking enforcement of privacy rights against a private doctor to seeking the right to free speech against a private social media entity.

Sedition Law:

Section 124A: Section 124A of the Indian Penal Code penalizes a crime against the state.

It defines the crime as bringing “into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India.”

Kedar Nath Singh Case (1962): Supreme court upheld the constitutional validity of sedition law, but restricted its scope for misuse and held that criticism of the government cannot be labelled sedition unless accompanied by violence.

22nd Law Commission in its 279th report has recommended that the provision of sedition (Section 124A) be retained with procedural safeguards and enhanced jail term. It broadly recommended three things:

Widening the scope of sedition;
Adding a higher quantum of punishment, and
Incorporating ‘procedsural safeguards’ to prevent misuse.

Reasons to retain the Sedition Law:

To safeguard the unity and integrity of India: India’s internal security, including Maoist extremism, militancy and ethnic conflict necessitate retaining the law on sedition.

Realities differ in every jurisdiction: Courts of competitive jurisdictions, like the US, the UK, etc. have made mere cosmetic changes have been affected in the law of sedition, without taking away the core substance of the offence.

Existence of counter-terror legislations: The existence of anti-terror legislations does not by “implication cover all elements of the offence and envisaged under Section 124A of IPC.

Sedition being a colonial legacy: Merely ascribing the term ‘colonial’ to a law or institution does not by itself, ascribe it to an idea of anachronism.

Criticism of the Law: On ground of curtailing freedom of speech, colonial legacy, downgrading democracy, misuse.

Shreya Singhal Case (2015): The Supreme Court struck down Section 66A and held that the Section was not saved by virtue of being a 'reasonable restriction' on the freedom of speech under Article 19(2).

The case is considered a watershed moment for online free speech in India.

Supreme Court Upholds Free Speech Rights of Ministers:

On January 3, 2023, the Supreme Court ruled that "additional restrictions" should not be imposed on the right to free speech of Ministers.
The Court also stated that the government cannot be held vicariously liable for disparaging remarks made by Ministers, even if those comments are related to state affairs or intended to protect the government.

Way Forward: An effective legal framework against hate speech is what is needed more than one to penalise speech or writing that targets the government.

Article 20 (Protection in respect of conviction for offences)

It grants protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal person like a company or a corporation. It contains following provisions.

It has provided for: No ex-post-facto law, No double jeopardy & No self-incrimination.

The SC recently refused to hear a plea by Delhi Deputy Chief Minister seeking bail in the excise policy case approaching it directly under Article 32 of the Constitution when the remedy of moving the High Court under Section 482 of the CrPC was available to him.
The court had rejected the arguments that he had a right against self-incrimination.

Cases related to self-incrimination:

Selvi vs. State of Karnataka (2010): SC has put restrictions on Narco analysis and brain mapping. However, DNA testing and other samples can be taken.
Ritesh Sinha versus State of Uttar Pradesh (2019): SC broadened the parameters of handwriting samples to include voice samples, adding that this would not violate the right against self-incrimination.
In 2022, Supreme Court Upholds Amendments to Prevention of Money Laundering Act (PMLA): The Supreme Court upheld the key amendments granting extensive powers of summons, arrest, and raids to the government and the Enforcement Directorate (ED).

Article 21 (Protection of life and personal liberty)

No person shall be deprived of his life or personal liberty except according to procedure established by law.

Important Judgements Related to the Right to life

A K Gopalan Case (1950): Narrow interpretation i.e., against arbitrary executive action and not from arbitrary legislative action.
Menaka Gandhi Case (1978): Wider interpretation i.e., not only against arbitrary executive action but also against arbitrary legislative action and introduced 'due process of law'.

Article 21: Not confined to animal existence or survival but it includes within its ambit the right to live with human dignity and make a man’s life meaningful, complete and worth living.

K.S. Puttaswamy judgment (2017) on Right to Privacy: Privacy is an intrinsic to freedom of life and personal liberty which is guaranteed under Article 21 of the Constitution.

It overruled Kharak Singh vs State of UP and M.P Sharma vs Union of India, which held that there is no fundamental right to privacy.

Navtej Singh Johar v. Union of India (2018): It decriminalised section 377 i.e., homosexuality in India.
Joseph Shine v. Union of India (2018): It abolished the provisions pertaining to crime of Adultery (Section 497 IPC).
Delhi HC in 2022: ‘Freedom of choice in marriage is intrinsic to Constitution’s Article 21’.ss

Capital Punishment and Right to life

Bachan Singh v State of Punjab (1980): Upheld the constitutionality of capital punishment on the condition that the punishment will be awarded in the “rarest of the rare” cases which was reiterated in Mithu v State of Punjab (1982) ruling.
Machhi Singh And Others vs State of Punjab (1983): Introduced “collective conscience” into the capital sentencing framework and laid down five categories, wherein the community would “expect the holders of judicial power to impose death sentence, because collective conscience was sufficiently outraged”.

Recently SC gave two new opinions on capital punishment:

Need of adequate sentencing hearing: The catena of judgments on sentencing hearings talks about a “meaningful, real and effective hearing” for the accused before awarding the death sentence, wherein the accused can have an “opportunity to adduce material relevant for the question of sentencing.”
Methods of hanging: Hanging by the neck to execute the death sentence can be declared unconstitutional if there is scientific material favoring a different method of execution as less painful and “more consistent with human dignity”.

Former Chief Justice of India’s Bold Initiatives in Death Penalty Law:

Chief Justice U.U. Lalit has taken significant steps to address anomalies in the operation of the death penalty law.
Through creative directions and guidelines, he has shown sensitivity towards death-row prisoners and worked towards corrections.
This approach has continued under his leadership, as seen in the Prakash Vishwanath and Mohd. Firoz cases.

Right to Privacy versus right to be forgotten

Meaning: It, essentially, means that a person has the right to get their personal information removed from public resources if they wish so.
Delhi High Court in Jorawer Singh Mundy v Union of India: Recognized that a person's personal and professional life can be hampered if appropriate relief is not granted against publication or republication of data. It also directed to remove the judgements of acquittal and google was asked to block the content from coming up in a search.

Right to be forgotten and Indian Laws: There is no formal legislation in India yet that scrutinizes the need for the Right to be Forgotten. However, the judicial precedent leads towards acceptance of the right.

The new Personal Data Protection Bill attempts to provide the citizens with more autonomy over their data and encapsulates the theory behind the EU's General Data Protection Regulation.

Srikrishna Committee’s report: Included the concept of Right to forgotten under the Personal Data Protection Bill, 2019, with following features: the right to restrict or prevent the continuing disclosure.
Global Practice: Right to be forgotten has been codified under the European Union’s General Data Protection Regulation (GDPR) in addition to the right to erasure.

Environment and Article 21: Article 21 guarantees fundamental right to life. Right to healthy environment is important attribute of right to live with human dignity.

The right to live in a healthy environment as part of Article 21 of the Constitution was first recognized in the case of Rural Litigation and Entitlement Kendra vs. State, 1988 (Popularly known as Dehradun Quarrying Case).

M.C. Mehta v. Kamal Nath: Any disruption of the basic environment elements of air, water, and soil, which are necessary for life, would be a threat to life under Article 21.
Subhash Kumar v. State of Bihar (1991): Held that Article 21 includes the right to a wholesome environment.
Virender Gaur v. State of Haryana (1994): It was held that enjoyment of life and right to live with dignity includes the protection and preservation of the environment and without it, life could not be enjoyed.

Precautionary Principle: It states that the government must anticipate, prevent, and combat environmental deterioration.

The SC recognized the Precautionary Principle as an important component of sustainable development and derived its application from Articles 21, 48A, and 51A(g) of the Constitution.

Philosophy of biocentrism: It holds that the natural environment has its own set of rights which is independent of its ability to be exploited by or to be useful to humans.

Biocentrism often comes into conflict with its contrarian philosophy, namely anthropocentrism.

Public Trust Doctrine (PTD): It is a doctrine that governs the management of natural resources and the environment and has root in Roman law.

It acts as a public property doctrine by limiting the government’s actions over public property.
According to this doctrine, the public is treated as the beneficiaries while the government is their trustee.
SC recently upheld the doctrine and said: The State was only a trustee holding the wealth safe for its ultimate beneficiary, the public. The principle of sustainable development remains a vital check on unbridled expansion.

Right to shelter: Delhi HC said “Homeless does not live but merely exist and life as envisaged by Article 21 of the Constitution is unknown to them”.

Slum-dwellers do not stay in slums out of choice. Their choice of residence is the last-ditch effort at securing, for themselves, what the Constitution regards as an inalienable adjunct to the right to life under Article 21, viz. the right to shelter and a roof over their heads. As to whether the roof provides any shelter at all is, of course, another matter altogether,”.

Right to Health: Rajasthan Government recently passed the “Right to Health Bill”, which gives every resident of the state the right to avail free services at all public health facilities.

The Right to Health is in sync with the constitutional guarantee of right to life under Article 21, and other components of the Directive Principles.
A constitutional ‘Right to Health’ at the national level will transform not only the health and well-being of our people but will act as a leap for the economic and developmental progress of the nation.
In 2021, Villupuram Member of Parliament urged the Centre to introduce a Bill in Parliament to amend Article 21 of the Constitution and make healthcare as a fundamental right for all citizens.

Article 22 (Protection against arrest and detention in certain cases)

Article 22 has two parts: First is when a person who is arrested or detained under an ordinary law and second when a person is arrested or detained under a preventive detention law.

Preventive detention: Cannot exceed three months unless an advisory board reports sufficient cause for extended detention.

No democratic country in the world has made preventive detention as an integral part of the Constitution.

Supreme Court Limits Preventive Detention:

In 2022, the Supreme Court restricts the use of preventive detention to exceptional circumstances, cautioning against its misuse in ordinary law and order situations.

Right Against Exploitation (Article 23-24)

Article 23 (Prohibition of traffic in human beings and forced labour)

It prohibits traffic in human beings, beggar (forced labour) and other similar forms of forced labour.

Exception: It permits the State to impose compulsory service for public purposes, as for example, military service or social service, for which it is not bound to pay.

PUDR vs. Union of India: The Court held that the right against forced labour included the right to a minimum wage.

The compulsion of economic circumstance which leaves no choice of alternatives to a person in want and compels a person to provide labour or service is no less a form of forced labour than any other, and its remedy lay in a constitutional guarantee of the minimum wage.

Article 24 (Prohibition of employment of children in factories, etc.)

It prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous activities like construction work or railway. But it does not prohibit their employment in any harmless or innocent work.

Steps taken to prohibit Child Labour in India:

Child Labour (Prohibition and Regulation) Act, 1986

Commissions for Protection of Child Rights Act, 2005 was enacted to provide for the establishment of a National Commission and State Commissions for Protection of Child Rights and Children’s Courts
The Child Labour (Prohibition and Regulation) Amendment Act, 2016, amended the 1986 Act and renamed the Principal Act as the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986.
Child Labour Amendment Act, 2016: Prohibits the employment of children below 14 years in all occupations and processes and also prohibits the employment of adolescents (14-18 years) in certain hazardous occupations and processes.

Right to Freedom of Religion (Article 25-28)

Article 25 (Freedom of conscience and free profession, practice and propagation of religion)

Religious conversion: Article 25 does not include a right to convert another person to one’s own religion. Forcible conversions impinge on the ‘freedom of conscience’ guaranteed to all the persons alike.

Supreme court on forced conversion: If such religious conversions are not stopped, they may pose a danger to the national security and the fundamental right of the citizens to freedom of religion and conscience.

The Court observed in this connection that there may be freedom of religion, but there cannot be freedom of religion by forced conversion.

States enacted anti-conversion law in India: Arunachal Pradesh, Orissa, Madhya Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, and Uttarakhand.
Intentions Behind Charitable Acts: Recently, a Bench led by Justice M.R. Shah said ??acts of charity or good work to help a community or the poor should not cloak an intention to religiously convert them as payback.

Issue of Hijab in Karnataka: Karnataka HC upheld the state government's ban on hijab in educational institutes and said that it is not essential religious practice in Islamic law and said that uniform is a reasonable restriction constitutionally permissible which the students cannot object to.

Reason to disallow hijab in school: To prevent two categories of students and to prevent discrimination which can crystallise in the minds of young people.
Doctrine of essential religious practices: Provided in the Shirur Mutt case (1954) that the term “religion” will cover all rituals and practices “integral” to a religion and test to determine what is integral is termed the “essential religious practices” test. What constitutes the essential part of a religion is to be determined with reference to the doctrines of that religion itself.
Arguments against: Muslim students had argued that the ban on the hijab violated their Right to Freedom of Conscience under Article 25 of the Constitution of India, 1950.

Citing Bijoe Emmanuel v State of Kerala, 1986, Muslim students argued that since wearing the hijab is a part of their conscientious belief, it must be protected.

Way Forward: "Promoting Religious Freedom and Harmony in India"

Strengthening Legal Protection, Ensuring Equality and Non-Discrimination, Monitoring and Addressing Violations, Judicial Review and Constitutional Interpretation

Article 26 (Freedom to manage religious affairs)

Article 25 & Article 26: Article 25 guarantees rights of individuals, while Article 26 protects collective freedom of religion.
Fathima Tasneem v State of Kerala (2018): Kerala HC held that collective rights of an institution would be given primacy over individual rights of the petitioner.

Criticism: It is better for the court to prohibit religious practices for public order rather than determine what is so essential to a religion that it needs to be protected.

The 22nd Law Commission of India sought the views of religious organisations and the public on the issue of a Uniform Civil Code (UCC).

Article 27 (Freedom as to payment of taxes for promotion of any particular religion)

State of Gujarat v Islamic Relief Committee of Gujarat case

Diverting tax proceeds for restoring religious shrines, even if destroyed due to the state's negligence, violates the principles of secularism.
The court emphasized a conception of secularism based on the strict separation principle.
Compensation can be sought only for violations of the right to life and not for other fundamental rights.

Article 28

Freedom as to attendance at religious instruction or religious worship in certain educational institutions.

Cultural and Educational Rights (Article 29-30)

Article 29 (Protection of interests of minorities)

The SC on Article 29: The right to conserve the language includes the right to agitate for the protection of the language. Hence, the political speeches or promises made for the conservation of the language of a section of the citizens does not amount to corrupt practice under the RPA, 1951.

Identification of Minorities: The Supreme Court recently observed that it is "contrary to law" to identify religious and linguistic minority communities district-wise referring to the T. M. A Pai versus State of Karnataka case in 2002.

In another observation, the SC said that “every person in India can be a minority in one State or the other.

Minority status of religious and linguistic communities is “State-dependent”.

Every person in this country can be a minority. One can be a minority outside his/her State. Similarly, a Kannada speaking person may be in minority in States other than Karnataka.

Hindu as minority in states with minority population: The Supreme Court dismissed to recognise Hindus as minorities in the States where they are low in population.

The Court observed that the States have been carved language-wise. But religion is beyond all borders, especially political borders. It has to be taken on a pan-India basis.

Every person in India can be a minority in one State or the other. Minority status of religious and linguistic communities is “State-dependent”, the Supreme Court said in 2022.

Article 30 (Right of minorities to establish and administer educational institutions)

The protection under Article 30 is confined only to minorities (religious or linguistic) and does not extend to any section of citizens (as under Article 29).

SC Judgement on regulating minority institutions: The state is well within its rights to introduce a regulatory regime in the “national interest” to provide minority educational institutions with well-qualified teachers in order for them to “achieve excellence in education.”

Article 32: Remedies for enforcement of rights conferred by this Part

It confers the right to remedies for the enforcement of the fundamental rights of an aggrieved citizen. It means, the right to get the Fundamental Rights protected is in itself a fundamental right. This makes the fundamental rights real.