Polity Set 33
π
π Polity β’ Citizenship
Q.1) The Constitution deals with citizenship from Articles 5 to 11 under which Part?
Ans > Part II
- Constitutional Framework: Part II of the Indian Constitution, comprising Articles 5 to 11, specifically deals with the citizenship of India. However, it is important to note that these articles do not contain a permanent or comprehensive law relating to citizenship.
- Scope at Commencement: The primary purpose of Part II was merely to identify the persons who became citizens of India at its commencement, which is January 26, 1950. It does not deal with the problem of acquisition or loss of citizenship subsequent to this date.
- Parliamentary Authority: Realizing the dynamic nature of citizenship, the framers included Article 11. This article explicitly grants the Parliament of India the absolute power to make provisions with respect to the acquisition and termination of citizenship and all other matters relating to it.
- Historical Context: Articles 6 and 7 were specifically drafted to address the massive demographic upheavals caused by the partition of India, laying down specific rules for people migrating from Pakistan to India, and those who migrated to Pakistan but subsequently returned under a permit for resettlement.
π Polity β’ Citizenship Act
Q.2) The Citizenship Act (1955) prescribes how many ways of acquiring Indian citizenship?
Ans > Five
- The Citizenship Act, 1955: Exercising the power granted by Article 11 of the Constitution, the Parliament enacted the Citizenship Act in 1955. This act provides the comprehensive legal framework for the acquisition and loss of citizenship after the commencement of the Constitution.
- Five Distinct Methods: The Act originally prescribed five ways of acquiring Indian citizenship: Birth (jus soli), Descent (jus sanguinis), Registration, Naturalisation, and Incorporation of territory.
- By Birth: A person born in India on or after January 26, 1950, is generally considered a citizen by birth. However, this has been amended over time to prevent illegal immigrants from acquiring citizenship, currently requiring at least one parent to be an Indian citizen and the other not an illegal migrant at the time of birth.
- Other Methods: Naturalisation allows foreigners who have resided in India for a prolonged period to become citizens, while registration is typically for Persons of Indian Origin (PIOs) or spouses of Indian citizens. Incorporation of territory happens when India acquires new land (e.g., Puducherry, Goa), automatically making its residents Indian citizens under specific government orders.
π Polity β’ Citizenship by Descent
Q.3) According to the Citizenship Act (1955), a person born outside India on or after December 10, 1992, is considered a citizen of India by descent if:
Ans > Either of his parents is a citizen of India at the time of his birth.
- The 1992 Amendment Act: Prior to the Citizenship (Amendment) Act of 1992, the law was inherently patriarchal. A person born outside India could only acquire Indian citizenship by descent if their father was a citizen of India at the time of their birth.
- Establishing Gender Equality: The 1992 amendment fundamentally altered this by establishing gender equality in the transmission of citizenship. It decreed that a person born outside India on or after December 10, 1992, is considered a citizen of India by descent if either of their parents (father or mother) is a citizen of India at the time of their birth.
- Further Modifications (2004): The rules for descent were tightened again with the 2003 amendment (which came into effect on December 3, 2004). It mandated that a person born outside India shall not be a citizen of India by descent unless their birth is registered at an Indian consulate within one year of its occurrence, ensuring tighter tracking of overseas citizens.
π Polity β’ Registration
Q.4) To acquire Indian citizenship by registration, a person of Indian origin must be ordinarily resident in India for how many years before making an application?
Ans > Seven years
- Eligibility for Registration: The Citizenship Act of 1955 allows the Central Government to register certain categories of individuals as citizens of India upon application. This is not a right but a discretionary power of the government.
- Persons of Indian Origin (PIO): The most common category under this method applies to Persons of Indian Origin. A PIO is defined as someone who, or whose parents/grandparents, were born in undivided India or a territory that became part of India after August 15, 1947.
- The Residency Clause: To prevent transient individuals from easily acquiring citizenship, the law mandates a strict residency requirement. A PIO must be ordinarily resident in India for a continuous period of seven years immediately before making an application for registration.
- Spousal Registration: This seven-year residency requirement also applies strictly to individuals who are married to a citizen of India. They cannot immediately claim citizenship upon marriage but must live in India for seven years as an ordinary resident before becoming eligible to apply.
π Polity β’ Naturalisation
Q.5) To acquire citizenship by naturalisation, the applicant must have continuously resided in India or been in the service of a Government in India for how many months immediately preceding the date of the application?
Ans > 12 months
- Concept of Naturalisation: Naturalisation is the legal process by which a non-citizen in a country may acquire citizenship or nationality of that country. In India, this is typically available to foreigners who do not qualify under birth, descent, or registration categories.
- Strict Residency Requirements: The criteria for naturalisation under the Citizenship Act are stringent. The primary requirement is that the applicant must have continuously resided in India, or been in the service of the Government of India, for the entire period of twelve (12) months immediately preceding the date of the application.
- Aggregate Residency: In addition to the strict 12-month immediate residency, during the 14 years preceding those 12 months, the applicant must have resided in India for periods amounting in the aggregate to not less than 11 years.
- Other Mandatory Criteria: The applicant must also be of good character, have adequate knowledge of at least one language specified in the Eighth Schedule of the Constitution (like Hindi, Bengali, Tamil, etc.), and intend to reside in India following naturalisation.
π Polity β’ Loss of Citizenship
Q.6) Which of the following is NOT one of the three ways of losing Indian citizenship prescribed by the Citizenship Act (1955)?
Ans > Expiration
- Statutory Framework for Loss: Just as the Citizenship Act of 1955 details how to acquire Indian citizenship, it also exhaustively prescribes the only three methods by which a person can lose it: Renunciation, Termination, and Deprivation. “Expiration” is a fabricated term in this context.
- Voluntary Renunciation: Any citizen of India of full age and capacity can make a declaration renouncing their Indian citizenship. Once this declaration is registered, they cease to be a citizen. Notably, if this occurs during a war India is engaged in, the registration is withheld. When a person renounces, their minor children also lose Indian citizenship (though they can resume it at age 18).
- Automatic Termination: The Indian Constitution strictly prohibits dual citizenship. If an Indian citizen voluntarily acquires the citizenship of another country, their Indian citizenship automatically terminates.
- Compulsory Deprivation: The Central Government can forcefully deprive someone of their citizenship if it was acquired by fraud, false representation, or if the citizen has shown disloyalty to the Constitution of India, unlawfully communicated with an enemy during war, or been continuously resident outside India for seven years.
π Polity β’ Constitutional Ideals
Q.7) Unlike the USA, which has a system of double citizenship, India provides for a single citizenship. This concept was adopted to promote:
Ans > The feeling of fraternity and unity
- Contrasting with Federal Systems: In typical federal systems like the United States or Switzerland, there is a concept of dual or double citizenship. A person is a citizen of the national government (USA) as well as the specific state they reside in (e.g., California or Texas), enjoying separate sets of rights from both.
- India’s Unified Approach: Despite having a federal structure with a division of power between the Centre and the States, the Indian Constitution established a system of single citizenship. There is only Indian citizenship and no separate state citizenship (e.g., no “Citizenship of Maharashtra” or “Citizenship of Bengal”).
- Promoting National Integration: The framers of the Constitution consciously adopted this single citizenship model to overcome deep-rooted historical divisions based on caste, religion, linguistics, and region.
- Fraternity and Unity: By ensuring that all citizens, regardless of their state of birth or residence, enjoy identical political and civil rights nationwide, the Constitution aimed to build an undivided, integrated Indian nation and foster a powerful feeling of fraternity and unity among the masses.
π Polity β’ OCI Scheme
Q.8) The Citizenship (Amendment) Act, 2015 introduced the “Overseas Citizen of India Cardholder” scheme by merging the OCI card scheme with which other scheme?
Ans > PIO (Persons of Indian Origin) card scheme
- Historical Schemes for the Diaspora: To cater to the massive Indian diaspora, the Government of India previously operated two distinct schemes: the Persons of Indian Origin (PIO) Card scheme introduced in 1999, and the Overseas Citizenship of India (OCI) Card scheme introduced in 2005.
- Administrative Confusion: Operating both schemes simultaneously led to significant administrative overlap and confusion among applicants regarding which scheme was more beneficial, as they had different validity periods, fee structures, and visa-free travel privileges.
- The 2015 Amendment: To streamline the process and provide maximum benefit to the diaspora, the Citizenship (Amendment) Act of 2015 officially merged the PIO card scheme into the OCI cardholder scheme.
- Status of OCI: It is crucial to understand that an OCI cardholder is not a citizen of India. They do not possess voting rights (franchise), cannot hold constitutional posts (like President, Judge of the Supreme Court), and cannot purchase agricultural or plantation properties. It essentially provides a lifelong, multiple-entry, multi-purpose visa to visit India.
π Polity β’ Fundamental Rights
Q.9) Part III of the Constitution, dealing with Fundamental Rights, is rightly described as the:
Ans > Magna Carta of India
- The Original Magna Carta: The Magna Carta, or “Great Charter,” was issued by King John of England in 1215. It was the first formal document to state that the king and his government were not above the law, establishing the principle that citizens have specific, inviolable liberties.
- Part III as India’s Charter: Part III of the Indian Constitution, comprising Articles 12 to 35, contains a very long and comprehensive list of ‘justiciable’ Fundamental Rights. Because it serves as the ultimate guarantor of individual liberties against arbitrary state action, it is rightfully termed the ‘Magna Carta of India’.
- Comprehensive Protection: These rights are more elaborate than those found in the bill of rights of any other constitution in the world, including the USA. They operate as crucial limitations on the tyranny of the executive and arbitrary laws of the legislature.
- Justiciability: The most important feature making it a Magna Carta is that these rights are justiciable. If they are violated, aggrieved persons can directly approach the Supreme Court (under Article 32) or the High Courts (under Article 226) for their enforcement and restoration.
π Polity β’ Article 12
Q.10) Which Article defines the term ‘State’ for the purposes of Part III of the Constitution?
Ans > Article 12
- Context of Fundamental Rights: Most Fundamental Rights in Part III are claimed exclusively against the “State” (and not private individuals). Therefore, before one can claim a violation of a fundamental right, it is essential to legally define what constitutes the “State.”
- Expansive Definition: Article 12 provides a broad and expansive definition of the ‘State’ for the purposes of Part III. It goes far beyond just the central government in New Delhi.
- Included Entities: According to Article 12, the State includes: The Government and Parliament of India (executive and legislative organs of the Union), the Government and Legislature of each state, all local authorities (like municipalities, panchayats, district boards), and all other statutory or non-statutory authorities within the territory of India.
- Other Authorities: Over the years, the Supreme Court has dramatically expanded the term “other authorities.” It now includes bodies like LIC, ONGC, SAIL, and even private bodies or agencies working as an instrument of the State, bringing a wide range of institutions under the scanner of Fundamental Rights.
π Polity β’ Judicial Review
Q.11) Article 13 expressively provides for the doctrine of judicial review. It declares that all laws inconsistent with Fundamental Rights shall be:
Ans > Void
- The Shield of Rights: While Part III grants fundamental rights, Article 13 is the mechanism that actively protects them. It acts as a constitutional shield, declaring that any law that takes away or abridges the Fundamental Rights shall be void to the extent of the contravention.
- Explicit Judicial Review: Article 13 provides an explicit constitutional basis for the doctrine of judicial review. This power is heavily vested in the Supreme Court (Article 32) and the High Courts (Article 226), empowering them to strike down unconstitutional legislation.
- Broad Definition of ‘Law’: The term ‘law’ in Article 13 has been given a very wide connotation. It includes not just permanent laws passed by the Parliament or state legislatures, but also temporary laws like ordinances issued by the President or Governors.
- Delegated Legislation and Custom: Furthermore, Article 13’s definition of ‘law’ covers statutory instruments in the nature of delegated legislation (orders, bye-laws, rules, regulations, notifications) and even non-legislative sources of law, such as firmly established customs or usages having the force of law.
π Polity β’ Right to Equality
Q.12) Article 14 provides for “equality before law” and “equal protection of laws”. The concept of “equality before law” is of which origin?
Ans > British
- Two Distinct Concepts: Article 14 states that the State shall not deny to any person “equality before the law” or the “equal protection of the laws” within the territory of India. These are two distinct legal concepts borrowed from different constitutional traditions.
- British Origin (Negative Concept): “Equality before the law” is a concept of British origin, fundamentally derived from A.V. Diceyβs concept of the “Rule of Law”. It is a negative concept that ensures the absence of any special privileges in favor of any person. It implies that no person (whether rich or poor, high or low, official or non-official) is above the law.
- American Origin (Positive Concept): “Equal protection of laws,” conversely, is borrowed directly from the 14th Amendment of the American Constitution. It is a positive concept that demands equal treatment under equal circumstances, both in the privileges conferred and liabilities imposed by the laws.
- Intelligible Differentia: While Article 14 forbids class legislation, it permits reasonable classification of persons, objects, and transactions by the law. This classification must not be arbitrary, artificial, or evasive; rather, it must be based on “intelligible differentia” (a clear distinguishing factor) that has a rational nexus to the objective of the law.
π Polity β’ Immunities
Q.13) Which Article provides immunity to the President of India and the Governors of States from criminal proceedings during their term of office?
Ans > Article 361
- Exceptions to the Rule of Law: While Article 14 establishes the grand principle of equality before the law, the Constitution recognizes that certain high constitutional functionaries require specific immunities to execute their duties without fear of harassment or frivolous litigation.
- Scope of Article 361: Article 361 provides significant constitutional immunities strictly to the President of India and the Governors of the States.
- Official Acts: Firstly, the President or the Governor is not answerable to any court for the exercise and performance of the powers and duties of their office.
- Absolute Criminal Immunity: Crucially, no criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during their term of office. Furthermore, no process for their arrest or imprisonment can be issued by any court during their tenure. Civil proceedings for personal acts require a two-month prior written notice.
π Polity β’ Discrimination
Q.14) Article 15 provides that the State shall not discriminate against any citizen on grounds ONLY of:
Ans > Religion, race, caste, sex or place of birth
- Protection Against State Discrimination: Article 15 directs that the State shall not discriminate against any citizen on specific, enumerated grounds. This right is available only to citizens of India and not to foreigners.
- The Five Explicit Grounds: The article strictly prohibits discrimination on grounds ONLY of religion, race, caste, sex, or place of birth.
- The Significance of “Only”: The inclusion of the word “only” is legally highly significant. It means that discrimination on other grounds is entirely permissible. For example, a state can discriminate based on educational qualifications, physical fitness requirements, or language proficiency for certain government positions.
- Public Access: The second provision of Article 15 ensures that no citizen shall be subjected to any disability, liability, or restriction regarding access to shops, public restaurants, hotels, and places of public entertainment, or the use of wells, tanks, and roads maintained wholly or partly by State funds, based on these five grounds.
π Polity β’ Exceptions to Equality
Q.15) Which of the following is an exception to the general rule of non-discrimination under Article 15?
Ans > All of the above.
- Balancing Equality and Equity: The principle of non-discrimination in Article 15 is not absolute. The framers realized that strict formal equality could perpetuate historical inequalities. Therefore, the Constitution provides distinct exceptions allowing for affirmative action (protective discrimination).
- Women and Children: Article 15(3) specifically empowers the State to make any special provision for women and children. This permits the creation of laws like the domestic violence act, maternity benefits, or reservation of seats for women in local bodies.
- Socially and Educationally Backward Classes (SEBCs): Article 15(4) was added by the 1st Amendment in 1951. It allows the State to make special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes (SCs) and Scheduled Tribes (STs).
- Economically Weaker Sections (EWS): Most recently, Article 15(6) was added by the 103rd Amendment in 2019, permitting the state to make special provisions (up to 10% reservation) specifically for the economically weaker sections of citizens, separate from the SEBCs.
π Polity β’ Constitutional Amendments
Q.16) The 103rd Amendment Act of 2019 provided for the reservation of up to 10% of seats in educational institutions for which group?
Ans > Economically Weaker Sections (EWSs)
- Historical Shift in Reservation Policy: Until 2019, the constitutional framework for affirmative action and reservations in India was strictly based on social and educational backwardness (and historical marginalization like untouchability for SCs). Economic deprivation alone was never a valid constitutional ground for reservation.
- Introduction of the 103rd Amendment: The 103rd Constitutional Amendment Act, 2019 fundamentally shifted this paradigm. It inserted new clauses into Articles 15 (educational institutions) and 16 (public employment).
- The 10% EWS Quota: The amendment empowers the State to provide a maximum of 10% reservation for the “Economically Weaker Sections” (EWS) of citizens. This quota is strictly over and above the existing 50% reservation mandated for SCs, STs, and OBCs.
- Exclusionary Criteria: The EWS quota is specifically designed for the “general category” (unreserved category). Therefore, individuals who already fall under the SC, ST, or OBC non-creamy layer categories are legally excluded from claiming benefits under the EWS quota, which is determined by family income and asset thresholds.
π Polity β’ Public Employment
Q.17) Article 16 provides for equality of opportunity for all citizens in matters of:
Ans > Public employment
- Focus on State Employment: While Article 15 is a general anti-discrimination clause, Article 16 is specifically tailored to matters of public employment. It guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office strictly “under the State.”
- Broader Grounds of Protection: Article 16(2) provides that no citizen shall be discriminated against for State employment on grounds only of religion, race, caste, sex, descent, place of birth, or residence. Notably, it adds “descent” and “residence” to the five grounds mentioned in Article 15.
- Exceptions for Residence: While residence cannot generally be a ground for discrimination, Article 16(3) provides a crucial exception. It empowers only the Parliament (not state legislatures) to prescribe residence within a state or union territory as a condition for certain employments or appointments in that state/UT.
- Affirmative Action in Employment: Article 16(4) is the constitutional bedrock for reservations in government jobs. It allows the State to reserve appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the state services.
π Polity β’ Commissions
Q.18) The Second Backward Classes Commission, appointed in 1979 to investigate the conditions of socially and educationally backward classes, was chaired by:
Ans > B.P. Mandal
- Constitutional Mandate: Article 340 of the Constitution empowers the President of India to appoint a commission to investigate the conditions of socially and educationally backward classes (SEBCs) and suggest measures to improve their condition.
- The Second Commission: Following the first commission (Kalelkar Commission, 1953), the Morarji Desai-led Janata Party government appointed the Second Backward Classes Commission in 1979. It was chaired by B.P. Mandal, a Member of Parliament, and is thus universally known as the Mandal Commission.
- Identifying the OBCs: The commission was tasked with identifying the SEBCs and recommending steps for their advancement. After extensive surveys, the commission identified 3,743 castes as socially and educationally backward, constituting roughly 52% of India’s population (excluding SCs and STs).
- The 27% Recommendation: To ensure adequate representation without breaching the Supreme Court’s 50% cap on total reservations, the Mandal Commission famously recommended a 27% reservation for these Other Backward Classes (OBCs) in government jobs. This recommendation was implemented by the V.P. Singh government in 1990, causing massive political upheaval.
π Polity β’ Landmark Judgments
Q.19) In the Mandal case (1992), the Supreme Court upheld the constitutional validity of the 27% reservation for the OBCs but directed the exclusion of which section?
Ans > The ‘creamy layer’ (advanced sections)
- The Indra Sawhney Judgment: The implementation of the Mandal Commission’s 27% OBC quota led to widespread protests and legal challenges. The matter was settled by a historic 9-judge bench of the Supreme Court in the case of Indra Sawhney v. Union of India (1992), popularly known as the Mandal Case.
- Upholding the OBC Quota: The Supreme Court upheld the constitutional validity of the 27% reservation for the OBCs in central government jobs, cementing affirmative action as a permanent feature of Indian public employment.
- Introducing the ‘Creamy Layer’: However, the Court introduced a vital caveat to ensure the benefits reach the truly marginalized. It directed the government to identify and explicitly exclude the “creamy layer”βthe socially and economically advanced sections among the OBCsβfrom receiving the reservation benefits.
- Other Key Directives: The judgment also firmly established that total reservations should not exceed 50% (except in extraordinary circumstances), ruled that reservations are confined to initial appointments and not promotions (though this was later bypassed via constitutional amendments), and declared that economic criteria alone cannot be the sole basis for backwardness.
π Polity β’ Article 17
Q.20) Article 17 abolishes ‘untouchability’ and forbids its practice. To enforce this, the Untouchability (Offences) Act, 1955 was amended and renamed in 1976 as the:
Ans > Protection of Civil Rights Act, 1955
- Absolute Fundamental Right: Article 17 boldly declares that “untouchability” is abolished and its practice in any form is strictly forbidden. The enforcement of any disability arising out of untouchability shall be an offense punishable in accordance with law. Unlike other rights, this right is absolute and admits no exceptions.
- Protection Against Private Individuals: Article 17 is unique because it is available against private individuals as well as the State. It places a positive constitutional obligation on the State to ensure this right is not violated by private actors.
- The Untouchability (Offences) Act, 1955: To give teeth to Article 17, Parliament enacted the Untouchability (Offences) Act in 1955. This act prescribed punishments for various discriminatory practices based on the caste system.
- Renaming to Protection of Civil Rights Act: Realizing the act needed stricter enforcement, it was comprehensively amended and significantly strengthened in 1976. It was renamed the “Protection of Civil Rights Act, 1955.” The act defines “civil right” as any right accruing to a person by reason of the abolition of untouchability by Article 17 of the Constitution.
π Polity β’ Article 18
Q.21) Article 18 abolishes titles. Which of the following distinctions is an exception and NOT prohibited?
Ans > Military or academic distinctions
- Eradicating Artificial Distinctions: Article 18 was drafted to abolish the feudal and colonial practices of conferring hereditary titles of nobility (such as Maharaja, Raj Bahadur, Rai Saheb, Dewan Bahadur), which inherently violate the principle of equal status among citizens.
- Four Provisions: Article 18 contains four key provisions: It prohibits the State from conferring any title (except military or academic distinctions); it prohibits citizens of India from accepting any title from a foreign state; it restricts foreigners holding state offices from accepting foreign titles without the President’s consent; and no person holding state office can accept any present/emolument from a foreign state without the President’s consent.
- The Exception for Merit: The Constitution carefully makes an exception for military distinctions (like Param Vir Chakra, Ashok Chakra, General, Colonel) and academic distinctions (like Doctorate, Professor) because these are earned through individual merit and service, not heredity.
- National Awards (Bharat Ratna, Padma Shri): In a landmark 1996 judgment (Balaji Raghavan case), the Supreme Court upheld the constitutional validity of National Awards like the Bharat Ratna, Padma Vibhushan, Padma Bhushan, and Padma Shri. The Court ruled they are not ‘titles’ within the meaning of Article 18 and do not violate the theory of equality, provided they are not used as prefixes or suffixes to the recipient’s name.
π Polity β’ Freedom Rights
Q.22) Article 19 currently guarantees the protection of how many specific rights regarding freedom?
Ans > Six
- The Core Civil Liberties: Article 19 is considered the core of the Fundamental Rights, originally granting seven essential democratic freedoms exclusively to the citizens of India. These are not absolute and are subject to ‘reasonable restrictions’ specified within the article itself.
- The Current Six Freedoms: Today, Article 19 guarantees six rights: (a) Freedom of speech and expression; (b) Freedom to assemble peaceably and without arms; (c) Freedom to form associations or unions or co-operative societies; (d) Freedom to move freely throughout the territory of India; (e) Freedom to reside and settle in any part of the territory of India; and (g) Freedom to practice any profession, or to carry on any occupation, trade, or business.
- Deletion of the Right to Property: Originally, Article 19(1)(f) guaranteed the right to acquire, hold, and dispose of property. This proved to be a massive hurdle for the government’s land reform and socialist economic agenda in the post-independence era.
- The 44th Amendment: Consequently, the Morarji Desai government enacted the 44th Constitutional Amendment Act in 1978, which completely deleted the right to property from the list of Fundamental Rights in Part III, downgrading it to a mere legal/constitutional right under Article 300A in Part XII.
π Polity β’ Article 20
Q.23) Article 20 grants protection against arbitrary and excessive punishment. It prohibits all of the following EXCEPT:
Ans > Preventive detention
- Safeguards for the Accused: Article 20 is a vital pillar of criminal jurisprudence in India. It grants protection against arbitrary and excessive punishment to an accused person, whether they are a citizen, a foreigner, or even a legal person like a company or a corporation.
- No Ex-Post-Facto Law: Article 20(1) prohibits retrospective criminal legislation. A person cannot be convicted for an act that was not an offense at the time of its commission, nor can they be subjected to a penalty greater than what existed when the act was committed. (This protection applies only to criminal laws, not civil or tax laws).
- No Double Jeopardy: Article 20(2) guarantees that no person shall be prosecuted and punished for the same offense more than once. This protection is available only in proceedings before a court of law or a judicial tribunal, not in departmental or administrative disciplinary actions.
- No Self-Incrimination: Article 20(3) states that no person accused of any offense shall be compelled to be a witness against himself. This protects accused individuals from being tortured or coerced into making confessions. It applies only to criminal proceedings, not civil ones, and does not prohibit compelling someone to give blood samples, fingerprints, or participate in an identification parade.
π Polity β’ Landmark Judgments
Q.24) In the Menaka case (1978), the Supreme Court took a wider interpretation of Article 21 and introduced which American expression?
Ans > Due process of law
- The Scope of Article 21: Article 21 is arguably the most expansive right in the Constitution, simply stating: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
- “Procedure Established by Law”: Originally, following the A.K. Gopalan case (1950), the Supreme Court held a narrow view. It ruled that as long as the legislature had passed a valid law establishing a procedure to take away liberty, the courts could not question whether that procedure itself was fair or unjust. This is the British concept of “procedure established by law.”
- The Menaka Gandhi Paradigm Shift: In the landmark Menaka Gandhi v. Union of India (1978) case regarding the impounding of her passport, the Supreme Court completely overruled its earlier stance, vastly expanding the scope of Article 21.
- Infusing “Due Process”: The Court ruled that the “procedure established by law” must be “right, just, and fair” and not arbitrary, fanciful, or oppressive. In essence, the Indian Supreme Court adopted the American judicial doctrine of “Due process of law,” meaning courts can now strike down laws that proceduralize the deprivation of liberty if the procedure is inherently unjust.
π Polity β’ Right to Education
Q.25) Article 21A, which makes elementary education a Fundamental Right, was added by which Constitutional Amendment Act?
Ans > 86th Amendment Act (2002)
- Elevating Education to a Right: Recognizing that a functioning democracy requires an educated citizenry, Parliament aimed to make primary education a justiciable right. Article 21A declares that the State shall provide free and compulsory education to all children of the specified age in such manner as the State may determine.
- The 86th Amendment Act: This monumental addition was made via the 86th Constitutional Amendment Act of 2002. Before this amendment, the provision for free and compulsory education for children was merely a Directive Principle of State Policy (under Article 45), which was non-justiciable and unenforceable by courts.
- Strict Age Bracket (6 to 14 years): It is critical to note the strict parameters of Article 21A. It guarantees this fundamental right exclusively to children in the age group of 6 to 14 years. It does not mandate the state to provide free higher education or professional education.
- The RTE Act 2009: To practically implement the constitutional mandate of Article 21A, Parliament subsequently enacted the Right of Children to Free and Compulsory Education (RTE) Act in 2009. This act legally obliged the government to ensure every child gets a neighborhood school and mandated a 25% reservation for disadvantaged children in private unaided schools.
π Polity β’ Preventive Detention
Q.26) The second part of Article 22 deals with the cases of preventive detention. Under this, the detention of a person cannot exceed how many months unless an advisory board reports sufficient cause?
Ans > Three months
- Two Types of Detention: Article 22 grants protection to persons who are arrested or detained. It deals with two distinct types of detention: punitive (detention to punish a person for an offense committed after trial and conviction) and preventive (detention of a person without trial and conviction to prevent them from committing a future offense).
- The Necessary Evil: Preventive detention is considered a ‘necessary evil’ in the Indian Constitution to combat anti-national elements, terrorism, and threats to public order. India is one of the few democratic countries in the world that allows preventive detention even during peacetime.
- Constitutional Safeguards: To prevent arbitrary misuse by the police and executive, the second part of Article 22 provides specific safeguards to individuals detained under any preventive detention law.
- The Three-Month Cap and Advisory Boards: The primary safeguard is that the detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention. This advisory board must consist of persons who are qualified to be appointed as judges of a High Court. Furthermore, the detenu must be communicated the grounds of detention (unless against public interest) and given an opportunity to make a representation against the detention order.
π Polity β’ Exploitation
Q.27) Article 23 prohibits traffic in human beings and ‘begar’. What does ‘begar’ mean?
Ans > Compulsory work without remuneration
- Right against Exploitation: Articles 23 and 24 together form the constitutional “Right against Exploitation,” aimed at protecting the dignity and freedom of the individual against deeply entrenched historical abuses.
- Prohibiting Human Trafficking: Article 23 expressly prohibits traffic in human beings. This broad term includes the selling and buying of men, women, and children like goods, forcing women or children into prostitution, and practices like the devadasi system. To enforce this, Parliament passed the Immoral Traffic (Prevention) Act, 1956.
- Abolishing ‘Begar’: The article also explicitly abolishes ‘begar’, a historic feudal system prevalent in pre-independence India where local zamindars and landlords forced tenants to render free labor without any remuneration.
- Other Forms of Forced Labor: Furthermore, Article 23 prohibits “other similar forms of forced labour,” which the Supreme Court has interpreted widely. In the famous Asiad Workers Case (1982), the Court ruled that compelling anyone to work for less than the statutory minimum wage amounts to “forced labor” under Article 23. To address these issues, Parliament enacted the Bonded Labour System (Abolition) Act, 1976.
π Polity β’ Child Rights
Q.28) Article 24 prohibits the employment of children below what age in any factory, mine, or other hazardous activities?
Ans > 14 years
- Absolute Prohibition: Article 24 lays down an absolute constitutional prohibition regarding the exploitation of young children in industrial settings. It states that 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.
- Scope of the Ban: It is important to note that Article 24 does not prohibit the employment of children (below 14) in all occupations. It only bans their employment in hazardous activities, construction work, railways, and factories. They were traditionally permitted to work in non-hazardous, harmless jobs (like helping in family businesses).
- The Child Labour Act, 1986: To enforce this constitutional mandate, Parliament enacted the Child Labour (Prohibition and Regulation) Act, 1986. This was the most important law in this direction.
- The 2016 Amendment (Total Ban): The legal landscape changed significantly with the Child Labour (Amendment) Act, 2016. This amendment totally banned the employment of children below 14 years in all occupations and processes (hazardous and non-hazardous alike), with the only narrow exception being helping in their own family enterprise after school hours or working as child artists in the entertainment industry.
π Polity β’ Freedom of Religion
Q.29) Article 25 guarantees the freedom of conscience. However, these rights are subject to:
Ans > Public order, morality, health, and other provisions relating to fundamental rights
- Individual Freedom of Religion: Article 25 guarantees to all persons (citizens and non-citizens alike) the freedom of conscience and the right freely to profess, practice, and propagate religion. This includes the right to declare one’s religious beliefs, perform religious rituals, and transmit one’s religious beliefs to others (without forceful conversion).
- Not an Absolute Right: However, the Constitution ensures that religious freedom cannot be used as a cloak to commit crimes, disturb the peace, or violate secular laws. The rights under Article 25 are not absolute.
- The Three Key Restrictions: The opening words of Article 25 clearly state that these freedoms are strictly subject to three overriding State interests: Public Order, Morality, and Health. For instance, the state can ban the use of loudspeakers for azaan or bhajans late at night to maintain public order and health (noise pollution), or ban practices like untouchability or human sacrifice in the name of morality.
- Subordination to Other Fundamental Rights: Uniquely, Article 25 is also subject to “other provisions relating to fundamental rights.” This means that if a religious practice directly conflicts with another fundamental rightβfor example, a religious practice that discriminates based on sex, conflicting with Article 15βthe other fundamental right will prevail over the religious practice.
π Polity β’ Religious Denominations
Q.30) Which Article guarantees every religious denomination the right to manage its own affairs in matters of religion?
Ans > Article 26
- Collective Religious Rights: While Article 25 deals with the religious rights of individuals, Article 26 protects the collective rights of religious groups. It guarantees every “religious denomination” or any section thereof the right to manage its own affairs in matters of religion.
- Four Specific Rights: Under Article 26, a religious denomination has the right to: (a) establish and maintain institutions for religious and charitable purposes; (b) manage its own affairs in matters of religion; (c) own and acquire movable and immovable property; and (d) administer such property in accordance with law.
- Supreme Court’s Definition: The Supreme Court has laid down three strict conditions for a religious group to qualify as a “religious denomination”: It must be a collection of individuals who have a system of beliefs they regard as conducive to their spiritual well-being; it must have a common organization; and it must be designated by a distinctive name. Examples include the Ramakrishna Mission or the Arya Samaj.
- Similar Restrictions: Just like the individual rights in Article 25, the collective rights of religious denominations in Article 26 are not absolute. They are also subject to the strict constraints of public order, morality, and health.
π Quick Summary β Polity Set 33
- Citizenship Part: Handled in Part II (Articles 5 to 11).
- Acquisition: 5 ways to acquire citizenship under the 1955 Act.
- Descent: Post-1992, descent via either parent qualifies for citizenship.
- Registration: Requires 7 years of ordinary residence in India.
- Naturalisation: Requires 12 months continuous residence prior to application.
- Loss of Citizenship: Renunciation, Termination, Deprivation (not Expiration).
- Single Citizenship: Designed to promote fraternity and unity.
- OCI Scheme: Merged with the PIO card scheme via the 2015 amendment.
- Fundamental Rights: Part III is called the Magna Carta of India.
- Article 12: Defines the ‘State’ broadly for Part III.
- Article 13: Doctrine of judicial review; makes inconsistent laws void.
- Article 14: “Equality before law” originates from British law.
- Article 361: Grants immunity from criminal proceedings to President/Governors.
- Article 15 Grounds: Religion, race, caste, sex, or place of birth only.
- Article 15 Exceptions: Special provisions for women, children, backwards, EWS allowed.
- 103rd Amendment: Brought 10% reservation for Economically Weaker Sections (EWS).
- Article 16: Deals strictly with equality of opportunity in public employment.
- Mandal Commission: 2nd BC Commission (1979) was chaired by B.P. Mandal.
- Creamy Layer: Excluded from OBC reservations following the 1992 Mandal case judgment.
- Civil Rights Act: The Untouchability Act (1955) was renamed to Protection of Civil Rights Act in 1976.
- Article 18: Abolishes titles, exempting military and academic distinctions.
- Article 19: Currently protects six specific freedom rights.
- Article 20: Prohibits double jeopardy, self-incrimination, ex-post-facto laws (not preventive detention).
- Menaka Case (1978): Infused the American ‘due process of law’ into Article 21.
- Article 21A: Right to elementary education added via the 86th Amendment Act (2002).
- Article 22 limit: Preventive detention capped at three months without an advisory board.
- Begar (Art 23): Means forced, compulsory work without remuneration.
- Child Labor (Art 24): Prohibits factory/mine employment for children below 14.
- Article 25 limit: Subject to public order, morality, and health.
- Article 26: Protects rights of religious denominations to manage their own affairs.
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