Right to Education : Article 21A

Q. What do you mean by the Fundamental Right of Education? What is the Importance of the right to the person? To what age of children this right is granted and when? What is the contribution of judiciary in getting this right passed by the Parliament also? [20 marks - 2018]

Right to Education ; Article 21A

Meaning

The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the Constitution of India to provide free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such a manner as the State may, by law, determine.

Importance of the right to education

Education is a fundamental right of every child, which is essential for their growth and development. The importance of education cannot be overstated, as it enables children to acquire knowledge, skills, and values that are necessary for their personal and social development.

Entitlement Age for Right to Education

RTE or Right To Education Act of 2009 states that every child aged 6-14 years has the right to free and compulsory education.

Contribution of Judiciary in getting this right passed

The judiciary played a very crucial and major role in making the right to education a fundamental right. Various judicial pronouncements have led to right to education becoming a fundamental right. Some of these important judicial decisions are as follows:

In the case of Anand Vardhan Chandel v University of Delhi & Ors. the petitioner contended that his fundamental right to education had been denied to him as he was not allowed to contest the elections of the Delhi University Students Union. He argued that participating in the activities of the Students Union was a part of the right to education. The Delhi High Court held that the right to education was included in Article 21 of the Constitution and the Petitioner had been deprived of this right. In this case, the right to education was for the first time recognised as a fundamental right under Article 21 of the Constitution which deals with the Right to Life and Personal Liberty.

Right against Exploitation - Article 23 and 24

Q. Explain the provisions of the "Right against Exploitation". [20 marks - 2018]

Q. Explain the provisions of the 'Rights against exploitation' as guaranteed under Indian Constitution. Refer to decided cases. [20 marks - 2021]

Right against Exploitation

The Right against Exploitation is enshrined in Articles 23 and 24 of the Indian Constitution.

Article 23 – Prohibition of traffic in human beings and forced labour

• Article 23 forbids all forms of exploitation and also makes bonded labour as well as human trafficking unconstitutional.
• Article 23 States that it ensures citizen protection both against the State and Private Individuals.... Read more at: https://www.studyiq.com/articles/right-against-exploitation

Laws in pursuance of Article 23:

1. Suppression of Immoral Traffic in Women and Girls Act, 1956

2. Bonded Labour System (Abolition) Act, 1976

Article 24 – Prohibition of employment of children in factories, etc.

Article 24 says that “No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.”

This Article forbids the employment of children below the age of 14 in any hazardous industry or factories or mines, without exception.

However, the employment of children in non-hazardous work is allowed.

Laws passed in pursuance of Article 24

1. The Factories Act, 1948

2. The Mines Act of 1952

3. The Child Labour (Prohibition and Regulation) Act, 1986

4. Child Labour (Prohibition & Regulation) Amendment Act, 2016

5. Child Labour (Prohibition and Regulation) Amendment Rules, 2017

Article 21 : Right to Life

Q. "No person shall be deprived of his life except according to the procedure established by law". (Article 21) Discuss. [20 marks - 2018, 2019]

Q. Right to life does not mean mere animal existence but right to live with human dignity.  In the light of this statement explain Right to life as guaranteed under Article 21 of the Indian Constitution. Refer decided cases. [20 marks - 2021]

Right to Life : Article 21 of the Constitution of India

According to 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.”

Article 21 provides two rights available to every person, citizens and foreigners alike.

1. Right to life

2. Right to personal liberty

The fundamental right provided by Article 21 is one of the most important rights that the Constitution guarantees. The Supreme Court of India has described this right as the ‘heart of fundamental rights’. 

The right specifically mentions that no person shall be deprived of life and liberty except as per the procedure established by law. This implies that this right has been provided against the State only. State here includes not just the government, but also, government departments, local bodies, the Legislatures, etc.

The right to life is not just about the right to survive. It also entails being able to live a complete life of dignity and meaning. The chief goal of Article 21 is that when the right to life or liberty of a person is taken away by the State, it should only be according to the prescribed procedure of law.

Judicial interpretations of Article 21

Judicial intervention has ensured that the scope of Article 21 is not narrow and restricted. It has been widening by several landmark judgements.

Case Laws

1. AK Gopalan (1950): In this case, the SC held that the expression ‘procedure established by law’, the Constitution has embodied the British concept of personal liberty rather than the American ‘due process’.

2. Maneka Gandhi vs. Union of India (1978): This case overturned the Gopalan case judgement. Here SC says,  the idea of personal liberty in Article 21 has a wide scope including many rights, some of which are embodied under Article 19, thus giving them ‘additional protection’. The court also held that a law that comes under Article 21 must satisfy the requirements under Article 19 as well. That means any procedure under law for the deprivation of life or liberty of a person must not be unfair, unreasonable or arbitrary. 

Article 13 : Guardian of the Fundamental Rights

Q. Article 13 makes the judiciary and especially the Apex court as a guardian, protector and interpreter of the fundamental rights. Discuss. [20 marks - 2018]

Article 13 : Guardian of the Fundamental Rights

Article 13 acts as the protector of the fundamental rights. It aids the court and citizens to keep the powers of the legislature under preview. Article 13 of the Indian Constitution describes the means for judicial review.

It mandates a duty for the government to protect and implement the fundamental right. And at the same time, it confers a power on the courts to declare a law or an act void if it infringes the fundamental rights.

The judiciary is the legal a protector of the constitutional rights. The primary responsibility for implementation of the rule of law lies that the judiciary. It is the significance of judicial review, to ensure that democracy is inclusive and there is accountability of everyone who wields or Exercises public power.

The principle of judicial review becomes an essential feature of Indian constitution. The power of judicial review is incorporated in article 226 and 227 of the Constitution as the high courts are concerned and in regard to Supreme Court article 32 and 136 of the Constitution.

Judicial review is the power of go to pronounce upon the constitutionality of legislative acts which fall within their normal jurisdiction to enforce and the power to refuse to enforce such as they find to be unconstitutional and hence void.

Indian Constitution - Quasi Federal form of Government

Q. "The Indian Constitution establishes a system of Government which is almost quasi federal, a unitary state with a subsidiary federal features rather than a federal state with subsidiary unitary features" KC Weheare. Elucidate. [20 marks - 2018]

 Indian Constitution as Quasi Federal

The constitution of India was scripted with some of the best features borrowed from the constitutions of some of the best democracies like The USA, UK, France etc. It incorporates the positive aspects of both a federal and a unitary government. According to KC Weheare, "The Indian Constitution establishes a system of Government which is almost quasi federal, a unitary state with a subsidiary federal features rather than a federal state with subsidiary unitary features".

Meaning of Quasi Federalism

In a quasi-federal state, the distribution of power among the state governments and central government is unequal. In a country like India, the center holds greater power than the states. But in a country like the USA, which is a true federation, states have the power to secede from the union government.

Indian Federalism has been described as Quasi Federal since it contains major federation features and union features. The very first article, Article 1 of the Indian Constitution states, India, that is Bharat, shall be a Union of States. So the unitary features of the constitution is outlined here.

Federal features of the Constitution of India 

The six important features of Federalism in India is discussed below:

1. Division of Power: The constitution of India identifies and implements Division of Power between the center and the states. Both the governments at the union and states are independent in their charge. Items of national importance like defence, foreign affairs, the currency of the country, etc. are union or central subjects, and subjects like health, land agriculture fall under the domain of the states.

2. Supremacy of the Constitution: The constitution is the source of power to all the three wings of Indian democracy – the legislative, the executive, and the Judiciary. Supremacy of the constitution is important for the coordinated and smooth functioning of the democracy

3. Written Constitution: The federal constitution must be written and unambiguous. Without the written constitution the demarcation of powers between the union and the states is impossible.

4. Constitutional Rigidity: Indian constitution is rigid in terms of it's amendments. Amendments to the constitution can be made by simple majority, special majority, or special majority along with a ramification of the Union.

5. Judiciary: Presence of a strong judiciary establishes a balance between the states and union governments.

6. Bi-cameral legislature:  The Indian Parliament has the lower house (Lok Sabha) and the upper house (Rajya Sabha). Any amendments need the approval of both houses. 

Article 15(1) of the Constitution of India

Q. What is the meaning of the word 'only' as used under Art 15(I) of the Constitution? [10 marks - 2018]

Article 15 (1) of the Constitution of India

Article 15(1) of the Constitution of India reads, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. 

In interpretation of this provision, courts have placed emphasis on the word “only” to imply that only discrimination on a single ground is suspect under Article 15, thus excluding intersectional discrimination from its scope. 

For instance, the Calcutta High Court in Mahadeb v Dr BB Sen held, “The impugned law must be shown to discriminate because of sex alone. If other factors in addition to sex come into play in making the discriminatory law, then such discrimination does not, in my judgment, come within the provision of Article 15(1) of the Constitution”. 

Right to Constitutional Remedies

Q. Against whom can the fundamental rights be enforced? What remedies are available to a person to enforce fundamental rights? Discuss. [20 marks - 2022]

Right to Constitutional Remedies

The Constitution of India provides for legal remedies for the protection of the fundamental  rights against their violation by the State or other institutions/individuals. The citizens of India has constitutional right to move the Supreme Court or High Courts for the enforcement of these rights. The Supreme Court has power to strike down any law that violates the Fundamental Rights.

Writs

Writs are written orders issued by the Supreme Court of India to provide constitutional remedies to protect the fundamental rights of citizens from a violation. 

Article 32 of the Constitution of India empowers the Supreme Courts to issue the writs. It also empowers Parliament to authorize any other court to issue these writs.

Article 226 empowers all the high courts of India to issue the writs

Type of Writs

1. Habeas Corpus

2. Certiorari

3. Prohibition

4. Mandamus

5. Quo Warranto

1. Habeas Corpus

Habeas Corpus is a writ that is enforced to protect the fundamental right to liberty of an individual against unlawful detention. This writ commands a public official to deliver a detained person in front of the court and provide valid reasons for the detention. However, this writ cannot be issued in case the proceeding is for contempt of a legislature or a court.

2. Certiorari

The writ of certiorari is issued to a lower court directing that the transfer of a case for review, usually to overrule the judgment of the lower court. The Supreme Court issues the writ of Certiorari in case the decision passed by the lower court is challenged by the party. It is issued in case the higher court finds it a matter of over jurisdiction or lack of jurisdiction.

3. Prohibition

Prohibition is a writ issued by a higher court to a lower court to enforce inactivity in the jurisdiction. It happens only in case the higher court is of the discretion that the case falls outside the jurisdiction of the lower court. Writ of Prohibition can only be issued against judicial and quasi-judicial authorities.

4. Mandamus

The writ of mandamus is issued to a subordinate court, an officer of the government, or a corporation or other institution commanding the performance of certain acts or duties. Mandamus cannot be issued against a private individual.

5. Quo-Warranto

Quo warranto is issued against a person who claims or usurps a public office. Through this writ, the court inquires ‘by what authority’ the person supports his or her claim.