Magna Carta, also known as the Magna Carta Libertatum or The Great Charter of Freedom, was the first document recognizing the Fundamental or Ancient Rights of the citizens of England. It originated in the 13th century as a result of the act of rebellion against King John I. They, for the first time, succeeded in extracting assurance from their King in the form of the Magna Carta. Magna Carta laid down the Rule of Law in England.
Since then the Magna Carta has become the basis for the US bill of Rights, 1791; the US Declaration of Independence, 1776 and the Universal Declaration of Human Rights (UDHR), 1948. It has affected not only the US polity but also, the Indian Democracy. The Magna Carta of India, Part III of the Constitution of India, 1950 (hereinafter referred to as the “Constitution”), is based upon the US Bill of Rights. Part III of the Constitution enlists certain Fundamental Rights given to the citizens and non-citizens of India. These rights form a part of the basic structure of the constitution and thus cannot be taken away even by the act of parliament. The aim of this article is to shed light upon the Magna Carta of India in brief.
Scope of Fundamental Rights (Magna Carta of India)
Part III of the Constitution is based on its preamble wherein the People of India have solemnly resolved to constitute India into a Sovereign, Socialist, Secular, and Democratic Republic and to secure to themselves justice, liberty, equality and fraternity. These rights are sacrosanct, inalienable and inviolable. Time and again the Apex Court of India has widened the scope of Fundamental Rights in conformity with the global trends in human rights jurisprudence. The recent instances being recognition of voluntary LGBTQ relations, decriminalization of Section 497 of the Indian Penal Code,
However, the Fundamental Rights are not absolute. While it is the duty of the State of ensures that the Fundamental Rights of people are protected, it is also the duty of the State to ensure social control. Thus, Part III itself imposes certain limitations upon the Fundamental Rights to ensure that they are not misused. The question arises in each case of adjusting the conflicting interests of the individual and of the society. Where there is a conflict between the Fundamental Rights of two parties, that right which advances public morality would prevail.
Scheme of Part III of the Constitution (Magna Carta of India)
The Fundamental Rights secured by the Constitution are grouped under the following heads:-
- Right to Equality (Articles 14 to 18)
- Right to Freedom (Articles 19 to 22)
- Right to Education (Article 21A)
- Right Against Exploitation (Article 23 and 24)
- Right to Freedom of Religion (Articles 25 to 28)
- Cultural and Educational Rights (Articles 29 and 30)
- Right to Constitutional Remedy (Article 32)
Meaning of State – Article 12
Before diving into the details of various Fundamental Rights secured by the Constitution, one must know against whom the Fundamental Rights can be enforced. Typically, Fundamental Rights can be enforced against the State. Article 12 defined the State. According to Article 12, a State includes-
- The Government and Parliament of India
- The Government and the legislature of each of the States
- All local or other authorities within the territory of India
- All local or other authorities are under the control of the Government of India.
A local authority has not been defined under the Constitution. However, Section 3(31) of the General Clauses Act, 1897 defines Local Authorities as follows:
“Local Authority shall mean a Municipal Committee, District Board, Body of Port Commissioner or other authority legally entitled to, or entrusted by the Government with the control or management of a municipal or local fund.”
- Separate Legal Identity
- Elected by inhabitants of the area in which such body wholly or partially functions.
- A certain degree of Autonomy.
- Must be performing a governmental function in the public interest.
- It must have the power to raise funds for its projects by levying tax, rates, charges, or fees.
The term “Other Authorities” has not been defined either in the constitution or in any other Statute. The Apex Court in the case of Som Prakash Rekhi v. Union of India summarized the tests for determining if a body would be termed as an “Other Authority”:-
- Entire Share Capital if held by the Government
- Existence of State Control
- Monopoly status of the body
- If public functions are performed by the body
- If a department of government is transferred to the body
The justifiability of Fundamental Rights (Magna Carta of India) – Article 13
Article 13 provides teeth to Part III of the Constitution. It makes the rights enforceable by the Court. It declares that all the laws, whether pre-constitutional or post-constitutional as void if they are inconsistent with the fundamental rights.
Equality before Law and Equal Protection of Law- Article 14
Article 14 is the basic principle of the ‘Rule of Law’. It states that the State shall not deny to any person equality before the law or equal protection of laws within the territory of India. This right is given not only to citizens but also non-citizens as indicated by the term ‘person’ used in Article 14. Article 14 strikes as arbitrariness.
Article 14 envisages two rights: (i) Equality before the law and (ii) Equal protection of the law.
Equality before Law
It implies that no man is above law and that every man, whatever his rank or condition, is subjected to the ordinary law of the land and is amenable to the jurisdiction of the ordinary tribunals. Thus, it is somewhat of a negative concept which implies an absence of any special privilege.
Equal Protection of Law
Equal protection of law implies that like should be treated alike and not that unlike should be treated alike. It is based on Article 1 of the Fourteenth Amendment of the Constitution of the United States of America. Thus, it is a positive concept.
The exception to Rule of Law
Article 14 permits reasonable classification, also known as positive classification. However such classification must not be arbitrary, artificial or evasive. The Apex Court in the case of R.K. Dalmia v. Justice Tendolkar, laid down the following tests for reasonable classification:
- Classification based on the intelligible differential.
- Nexus with the object to be achieved.
Prohibition of Discrimination against Citizens- Article 15
Article 15(2) deals only with cases of discrimination as regards access to public places on the basis of religion, race, caste, sex, place of birth or any of them.
Article 15(3) permits the State to make special provisions for the protection of children and women.
Article 15(4) permits the State to make special provisions for the advancement of socially and educationally backward classes of citizens or for Scheduled Castes and Scheduled Tribes. The clause was added by the Constitution (First Amendment) Act, 1951 as a result of the decision in State of Madras v. Champakam Dorairajan. It merely confers discretion on the State and doesn’t impose an obligation upon the State to make such provisions.
Article 15(5), inserted by Constitution (Ninety-Third Amendment) Act, 2005, enables the State to make special provisions for the admission in educational institutions of socially and educationally backward classes of citizens or for Scheduled Castes and Scheduled Tribes.
Article 15(6), inserted by the Constitution (One Hundred and Third Amendment) Act, 2019 enables the State to make special provisions for the admission of Economically Weaker Section in educational institutions.
Equal of Opportunity in Matters of Public Employment- Article 16
Article 16 secures to every citizen equality of opportunity in matters relating to public employment. However, the State may prescribe certain qualifications and selection procedures for recruitment or appointment. The selection test, however, should not be arbitrary.
Article 16(2) prohibits any discrimination on the ground of religion, race, caste, sex, descent, place of birth, residence or any of them with regard to employment under the State.
Article 16(3) is an exception to Article 16(1) and Article 16(2). Accordingly, the State can impose the condition of residence in a State for the purpose of employment.
Article 16(4) provides for reservation in the matter of employment. It is not an exception to Article 16(1) and Article 16(2) but an enabling provision with the aim to promote social and economic welfare.
Abolition of Untouchability- Article 17
Article 17 abolished untouchability and forbids its practice in any form. It further makes the offence of untouchability punishable according to law. Parliament has further enacted the Untouchability (Offences) Act, 1955 which was amended in 1976 and renamed as Protection of Civil Rights Act, 1955.
Abolition of Titles- Article 18
Article 18(1) abolishes titles and prohibits the State from conferring titles except for military or academic distinctions on any person whether citizen or a non-citizen. Article 18(2) prohibits a citizen of India from accepting any title from a foreign State. Article 18(3) prohibits a person, not being a citizen of India, but holding any office of profit or trust under the State, from accepting any title from any foreign State, without the consent of the President. Article 18(4) further prohibits such a person from accepting any present, emolument or office of any kind from or under any foreign State, without the consent of the President.
Six Fundamental Freedoms- Article 19
Article 19 guarantees to the citizens of India six (6) Fundamental Freedoms, namely-
- Freedom of Speech and Expression
- Freedom to Assemble peacefully without arms
- Freedom to form associations
- Freedom of movement
- Freedom to reside and settle in any part of the Indian Territory.
- Freedom to practice any profession, or to carry on any occupation, trade or business.
However, the freedoms are subject to restrictions. These restrictions have been enlisted under Article 19(2) to Article 19(6). The restrictions so imposed should be imposed under the authority of law, for a particular purpose and the restriction must be reasonable. Generally, restrictions include inter alia security of State, friendly relation with the State, public order, decency or morality.
Protection In Respect Of Conviction for Offences- Article 20
Article 20 provide protection against-
1. Ex- Post Facto Laws (Article 20(1))
Ex- post facto law means the law which is enacted subsequent to the occurrence of some act or subsequent of an omission. It includes-
- A law, which declares some act or omission as an offence.
- A law, which enhances punishment or penalty for an offence.
- A law, which prescribes a new and different procedure for the prosecution of an offence
Article 20(1) provides protection only in respect of (1) and (2).
2. Double Jeopardy (Article 20(2))
Article 20(2) or Double Jeopardy is based upon the maxim “Nemo debet bis vexari” which means man must not be put twice in peril for the same offence. In order to be protected under Article 20(2), the following essentials must be fulfilled-
- The person must be accused of an offence.
- The person must have been prosecuted before a court.
- The person must have been punished post prosecution.
- The person must be prosecuted for the second time.
- The offence must be same in the both the proceedings.
3. Self- Incrimination (Article 20(3))
Article 20(3) is based upon the Miranda principle which means that no man is bound to accuse himself.
Right to Life and Personal Liberty- Article 21
Article 21 provides that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.”
This right has been held to be the heart of the constitution and the foundation head of our laws, in addition to being the most organic and progressive provision in our living constitution.
- Right to live with human dignity.
- Right to Reputation
- Right to Livelihood.
- Right to Shelter.
- Right to the unpolluted environment.
- Right to Information
- Right against honor killing.
- Right to health
- Right to Privacy.
Right To Education- Article 21A
Article 21A was added by the Constitution (86th Amendment) Act, 2002. The amendment also added altered Article 45 and inserted clause (k) in Article 51A. Article 21A makes education from 6 to 14 years old, a fundamental right.
Protection against Arrest and Detention- Article 22
Article 22 embodies procedural safeguards against arrest and detention in the following two cases-
1. Where the arrest and detention are made under the ordinary law relating to the commission of offence.
Article 22 guarantees the following safeguards against arrest or detention made under the ordinary law-
- Right to be informed of the grounds of arrest.
- Right to be defended by a legal practitioner.
- Right not to be detained in custody for more than 24 hours without the authority of a magistrate.
- Right to be produced before the nearest magistrate within 24 hours of arrest.
2. Where detention is made under a law providing for preventive detention.
Article 22 contains the following protection with regard to preventive detention-
- No detention beyond three months unless such detention has been approved by the Advisory Board.
- The grounds of detention must be communicated
- The earliest opportunity of hearing must be provided to the detenu.
Right against Exploitation- Article 23
Article 23 aims at protecting people from exploitation. Article 23(1) prohibits Human Trafficking, Begar and any other form of forced labour. Human Trafficking is prohibited and made punishable under the Immoral Traffic (Prevention) Act, 1956. Begar means involuntary work without payment.
Article 23(2) is an exception to Article 23(1) and enables the State to impose compulsory service for public purposes. However, while imposing such service, the State shall not make any discrimination on the ground of religion, race, caste or class or any one of them.
Employment of Children- Article 24
Article 24 prohibits the employment of children below the age of fourteen (14) years in any factory or mine or in any other hazardous employment. This article is read with Article 39(e) and 39(f).
Right to Profess, Practice And Propagate Religion- Article 25
The term religion has not been defined under the Constitution. In Commissioner, H.R.E v. L.T. Swamiar, the Apex Court held that religion is not merely a matter of opinion, doctrine or belief. It also includes their outward expression in acts.
Article 25 provides all persons freedom of conscience and the right to freely profess, practice and propagate religion. However, this right is subject to public order, morality and health and to other provisions of Part III of the Constitution.
Freedom of Religious Domination to Manage Religious Affairs- Article 26
Article 26 provides every religious dominationwith four major rights, namely-
- To establish and maintain institutions for religious and charitable purposes.
- To manage its own affairs in a matter of religion.
- To own and acquire movable and immovable property.
- To administer such property in accordance with the law.
However, these rights are subject to public order, morality and health.
Freedom from Payment of Taxes for Promoting Any Particular Religion- Article 27
Article 27 provides that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination. The object of Article 27 is the protection of the secular character of the Constitution which prohibits the promotion or maintenance of any particular religion by the State or at the State’s expense. Therefore, even if such tax is imposed no person can be forced to pay it. It must be noted that Article 27 applies to ‘tax’ and not on the imposition of ‘fees’.
Prohibition of Religious Instructions in Educational Institutions- Article 28
Article 28 distinguishes among three types of educational institutions holding religious instructions or worships:
1. Wholly maintained by State – In these institutions, there is an absolute prohibition against imparting religious instructions
2. Recognized by State or Aided by the State – In these institutions, there is no prohibition in imparting religious education but no person can be forced to attend the same.
3. Administered by State but have been established under any endowment or trust which requires that religious instructions be imparted – In these institutions, there is no prohibition on imparting religious instructions.
Right to Conserve Language, Script or Culture- Article 29
As per Article 29(1) the citizens of India, residing in India, have been granted a right to have a distinct language, script or culture and its conservation thereof. Further Article 29(2) guarantees to every citizen the right to admission to any institution maintained by the State or aided by the State and no citizen can be denied admission to such institutions on the ground of their religion, race, caste, language or any of them.
Right of Minorities to Establish and Administer Educational Institutions- Article 30
Article 30(1) guarantees to all the linguistic and religious minorities the right to establish and administer an educational institution of their choice. However, this doesn’t imply that such institutions are free from regulatory control. In the case of TMA Pai Foundation v. State of Karnataka the Apex Court held that any Regulation framed in the national interest or for the welfare of the students and teachers must necessarily apply to all the institutions, whether run by majority or minority.
Article 30(2) further provides that the State shall not make any discrimination in granting aid to educational institutions on the ground that it is under the management of a minority.
Right to Move to Supreme Court for Enforcement of Fundamental Rights- Article 32
The right to move to Supreme Court to enforce fundamental rights has been declared to be an important and integral part of the basic structure of the Constitution. Article 32 provides for the following types of the jurisdiction of the Supreme Court-
Article 32(2) enables Supreme Court to issue directions or orders in the nature of Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo Warranto.
Habeas Corpus is a writ in the form of an order issued by the court calling upon the person by whom another person is detained, to bring the person before the court and let the court know, by what authority, he has detained that person.
Mandamus is a command issued by a Court asking a public authority to perform a public duty belonging to its office.
Prohibition is issued to prevent an inferior court or tribunal from exceeding its jurisdiction.
Certiorari is a jurisdictional writ in the nature of remedial action and is issued to quash an order or decision which has been made without jurisdiction or in violation to the principles of natural justice.
Quo Warranto is a writ issued to call upon the holder of a public office to show to the Court, under what authority he is holding that office.
2. Judicial Review
The Supreme Court has the power of Judicial Review over legislative action. This power has been held to be a part of the basic structure of the constitution in the case of IR Coelho v. State of Tamil Nadu.
3. Public Interest Litigation (PIL)
Traditionally, the locus standi is available only to those whose legal right or legally protected interest has been infringed. However, a PIL is an exception to the general rule. It permits litigation for the enforcement of the rights of another person. Explaining the concept of PIL, in the case of SP Gupta v. Union of India, the Apex Court held that any member of the public or social group acting bona fide could invoke the writ jurisdiction of the High Courts or the Supreme Court, seeking redressal against violation of legal or constitutional rights of persons who owning to their circumstances could not approach the court for relief.
In addition to the above, the Supreme Court also under Article 32 has the power to entertain a curative petition. A curative petition is a petition filed for a final judgement or order, after exhausting the remedy of Appeal under Article 137. In the case of IR Coelho v. State of Tamil Nadu the remedy under Article 32 has been described as the heart and soul of the Constitution.
Similar directions or orders can also be issued by the High Courts of the State under Article 226 of the Constitution.
In the light of the above, we observe that Part III, the Magna Carta of India is an organic portion of the Constitution. It is amended time and again by the Legislative. It is also interpreted from time to time by the Apex Court and the High Courts of the country.
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Navtej Singh Johar v. Union of India, AIR 2018 SC 4321
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This article has been written by Aakriti Gupta, 5th Year BA LLB Student at Army Institute of Law, Mohali