ARTICLE 22

Preventive Detention is the the most contentious part of the scheme fundamental rights
in the Indian constitutions.  The Article 22 (3) of the Indian constitution provides that,
if a person is arrested or detained under a law providing for preventive detention, then
the protection against arrest and detention under Article 22 (1) and 22 (2) shall not be
available.

Preventive detention should be carefully distinguished from punitive detention. Punitive

detention is punishment for illegal acts done. Preventive detention on the other hand is
action taken beforehand to prevent possible commitment of crime. Preventive
detention thus is action taken on grounds of suspicion that some wrong actions may be
done by the person concerned.
Preventive detention can however be made only on four grounds.

The grounds for Preventive detention are—

 security of state,
 maintenance of public order,
 maintenance of supplies and essential services and defence,
 foreign affairs or security of India.
A person may be detained without trial only on any or some of the above grounds. A
detainee under preventive detention can have no right of personal liberty guaranteed by
Article 19 or Article 21.

To prevent reckless use of Preventive Detention, certain safeguards are provided in the
constitution.

 Firstly, a person may be taken to preventive custody only for 3 months at the first
instance. If the period of detention is extended beyond 3 months, the case must be
referred to an Advisory Board consisting of persons with qualifications for
appointment as judges of High Courts. It is implicit, that the period of detention
may be extended beyond 3 months, only on approval by the Advisory Board.

1|Page
  Secondly, the detainee is entitled to know the grounds of his detention. The state
however may refuse to divulge the grounds of detention if it is in the public
interest to do so. Needless to say, this power conferred on the state leaves scope
for arbitrary action on the part of the authorities.
 Thirdly, the detaining authorities must give the detainee earliest opportunities
for making representation against the detention. These safeguards are designed to
minimize the misuse of preventive detention. It is because of these safeguards that
preventive detention, basically a denial of liberty, finds a place on the chapter on
fundamental rights. These safeguards are not available to enemy aliens.

Bare Text of Article 22-

Article 22. Protection against arrest and detention in certain cases

(1) No person who is arrested shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest nor shall he be denied the right to
consult, and to be defended by, a legal practitioner of his choice

(2) Every person who is arrested and detained in custody shall be produced before the
nearest magistrate within a period of twenty four hours of such arrest excluding the
time necessary for the journey from the place of arrest to the court of the magistrate
and no such person shall be detained in custody beyond the said period without the
authority of a magistrate

(3) Nothing in clauses ( 1 ) and ( 2 ) shall apply (a) to any person who for the time
being is an enemy alien; or (b) to any person who is arrested or detained under any
law providing for preventive detention

(4) No law providing for preventive detention shall authorise the detention of a person
for a longer period than three months unless (a) an Advisory Board consisting of
persons who are, or have been, or are qualified to be appointed as, Judges of a High

2|Page
Court has reported before the expiration of the said period of three months that there
is in its opinion sufficient cause for such detention:

(5) When any person is detained in pursuance of an order made under any law
providing for preventive detention, the authority making the order shall, as soon as
may be, communicate to such person the grounds on which the order has been made
and shall afford him the earliest opportunity of making a representation against the
order

(6) Nothing in clause ( 5 ) shall require the authority making any such order as is
referred to in that clause to disclose facts which such authority considers to be against
the public interest to disclose

(7) Parliament may by law prescribe:

(a) the circumstances under which, and the class or classes of cases in which, a person
may be detained for a period longer than three months under any law providing for
preventive detention without obtaining the opinion of an Advisory Board in
accordance with the provisions of sub clause (a) of clause ( 4 );

(b) the maximum period for which any person may in any class or classes of cases be
detained under any law providing for preventive detention; and

(c) the procedure to be followed by an Advisory Board in an inquiry under sub clause

(a) of clause ( 4 ) Right against Exploitation.

Explanation of Clause 1 of Article 22 of Indian Constitution - 

This is pretty straight-forward. It states that a person who has been arrested under
normal circumstances (not under preventive detention), has the right to an attorney or a
lawyer to represent him in court or to guide him. Also, he has the right to know the
charges for which he has been arrested and can be detained further. The concerned

3|Page
authority, like the police or any other government authority, is compelled to tell him this
information as soon as possible.

Explanation of Clause 2 of Article 22 of Indian Constitution - 

This clause states that any person who has been arrested by an authority, must be
presented before a magistrate within 24 hours of the arrest. This period of 24 hours
doesn’t include the time taken to travel to the court of the magistrate. The person cannot
be detained or held in custody for more than twenty four hours. After that, it is with the
authority or permission of the magistrate that an agency or government body can extend
the period of the detention. In my opinion, the exclusion of the commute time can act as
a loophole which can be taken advantage of. But that is the case with most laws. We can
always find loopholes.

Explanation of Clause 3 of Article 22 of Indian Constitution - 

This states the people or classes of people who are not entitled to the rights mentioned
in the above clauses. This clause further has two sub clauses.

(a)   This states that the rights mentioned in the first two clauses are not valid for a
person who is an “enemy alien”. Not an extraterrestrial being, just any person who is a
citizen of an enemy country. It’s perfectly justified as in times of war, when enemy
soldiers or spies are arrested, we won't go around giving them the same rights that we
give to our citizens. Like in Indo Pak war, countless Pakistani soldiers were captured. If
we gave them all the same rights, we would have flooded our judicial system and
moreover, we won't be at peace with ourselves.

(b)   Now, we have come to most controversial lines of our constitution. This is
considered as one of the most unacceptable clauses in our constitution by many people.
The concept of preventive detention. First let me tell you what is written in the
constitution. This sub-clause states that the rights mentioned in the first two clauses are
not applicable to people who have been arrested or detained on the grounds of

4|Page
preventive detention. Most countries like the United Kingdom or the United States of
America have rendered this as unlawful. In the United States of America, the 6th
Amendment act guarantees their citizens “the right to a speedy and public trial”.
Arrested people cannot be held in custody for longer periods of time without being given
a trial. However, convicted people can be detained indefinitely after being considered as
dangerous offenders. If we talk about India, before independence, the British
government used the same concept to suppress any nationalist movements that might
originate. Countless innocent people were put in jail without having done anything
wrong. First such instance was in the year 1818 when the government had the right to
detain any person, simply on the basis of suspicion.

The first act for preventive detention post-independence was passed in 1950 which was
fruitlessly challenged by Gopalan as the Madras high court deemed it constitutionally
valid.  This act finally expired in 1969, after having been extended 7 times. After that,
more such acts were introduced such as MISA, COFEPOSA and TADA. The TADA act
was considered the most inhumane as even confessions made under torture by the
police were considered admissible in the court as evidence. There were rumors of
widespread misuse.

After the series of attacks in Mumbai on 26th Nov 2008, a new act was passed, named
as Unlawful Activities (Prevention) act.

Explanation of Clause 4 of Article 22 of Indian Constitution - 

This clause tries to safeguard the misuse of the preventive detention powers of the
government agencies. According to this, a person who has been detained under
preventive detention, cannot be held for more than 3 months without the
recommendation of an advisory board. This advisory board will be formed containing at
least three members who are either high court judges or have the qualification to be high
court judges.

Explanation of Clause 5 of Article 22 of Indian Constitution - 

5|Page
This states that a person detained under any order which refer to preventive detention,
may be given the right to know the grounds of detention and allowed to make
representation against the said detention, on a time that the government sees fit. It is
advised to make it as soon as possible.

Explanation of Clause 6 of Article 22 of Indian Constitution - 

It states that while disclosing the grounds of detention to a person, under clause (5) of
Article 22 of Indian Constitution, the government has a right to withhold the specifics or
facts which it may consider will harm the public interest.

Explanation of Clause 7 of Article 22 of Indian Constitution - 

It describes the powers of the parliament as follows:

(a)   The parliament can define the necessary situations in which a person or class can be
detained for more than 3 months, without consulting with the Advisory Board.
However, they will need to pass a law for this.

(b)   It can decide the maximum period of detention

(c)    It can modify or define the procedure which is to be followed by the advisory board.

6|Page
For Article 23 & 24 refer only to classroom discussions and 1-2 case law of
your choice.

7|Page
 Freedom of Religion (Article 25-28)

One of the rights ensured by the Indian Constitution is the privilege of Freedom of

Religion. As a secular country, each national of India has the privilege to the opportunity
of religion, i.e. ideal to take after any religion. As one can discover such many religions
being practiced in India, the Constitution assurances to each national the freedom to
take their preferred religion. As per this essential right, every citizen has the chance to
practice and spread their religion peacefully. What’s more, if any occurrence of religious
narrow mindedness happens in India, it is the obligation of the Indian government to
check these frequencies and take strict activities against it. The right to freedom of
religion is all around depicted in the Articles 25, 26, 27 and 28 of Indian constitution.

The Indian Constitution guarantees certain fundamental rights which were described in
articles 12 to 35, which shape Part III of the Constitution. Among these articles, art., 25
and 26 are the two key articles ensuring religious freedom.

Articles 14, 15 and 16 of the Constitution of India deal with the right to equality. Article
17 is the unique arrangement that nullifies “untouchability” and precludes its training in
any frame. Right to equality to correspondence under the steady gaze of the law and
equivalent assurance of the law to all residents regardless of religion, race, sex and place
of birth is one of the fundamental estimations of a secular popularity based State. Article
14 of the Constitution gives the two parts of uniformity to all people, including outsiders
who reside inside the region of India.

There are in the meantime a few arrangements of the Constitution that perceive
exemption to the general rule of equality on different sensible grounds. These are given
in conditions (3) and (4) of article 15 and in clauses (4) and (5) of article 16. Special
cases to the general government of uniformity allowed under condition (4) of article 15
and clause (4) of article 16 would be of enthusiasm for our thought.

Article 15 of the Constitution accommodates a specific utilization of the general standard

of balance encapsulated in Article 14. Clause (1) of article 15 coordinates the State not to
oppress any resident on the ground just of religion, race, standing sex or place of birth
or any of them. The forbiddance contained in this provision applies to the State in

8|Page
managing nationals. clause (2) of the article 15 forbids the private individual and in
addition the State from causing any segregation or handicap as to the subject’s
entrance to shops, lodgings, and so forth., and all spots of open excitement and resort.
The social and religious effect of this proviso is to be found with regards to the
loathsome history of the alleged ‘untouchable individuals’ who, for quite a long time
before, were liable to social isolation and embarrassment in many parts of the nation.
Likewise, provisos (1) and (2) of article 16 typify the rule of fairness set down in article
14 with reference to the arrangement and work under the State.

Give us now a chance to investigate and see the basis of the special case conditions to
the general precept of uniformity, which is known as arrangements of “Protective
discrimination” or “compensatory discrimination.” Clause (3) of article 15 gives
immunity for women and youngsters, clause (4) of article 15 gives immunity for some
backward classes of Indian citizens and for Scheduled Castes and Scheduled Tribes for
their progression in the field of education. Essentially, clause (4) of article 16 gives an
exemption for any backward class of citizens in the area of appointment of jobs under
the state, on the off chance that they are not satisfactorily spoken to in such
administrations.

The religious freedom of unique individuals of India guaranteed by the Indian

constitution by clause (1) of article 25, which can be interpreted precisely the
Constitution makes it clear that the rights provided in clause (1) of article 25 are subject
to “morality”, “public order”, and health and to the other, Articles of Part III of the
Constitution that lays down the fundamental rights. Clause (2) of article 25 is a “saving
clause” for the country so that the religious rights guaranteed under clause (1) are
further subject to any “existing law” or a law which the State deems it fit to pass that:

(a) controls or lays constraint on any financial, economic, political or other secular
activity which may be linked with religious practices, or,

(b) offers for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all Hindu sections.

9|Page
Correspondingly Article 26 is the fundamental article that gives “the corporate freedom”
of religion overseeing the connection between the State and Subject to open request,
ethical quality and well-being each religious group or any area thereof should have the
privilege, (a) to set up and keep up organizations for religious and magnanimous
purposes; (b) to deal with its own particular undertakings in issues of religion; (c) to
possess and obtain portable and ardent property; and (d) to regulate such property as
per law. Proviso (b) of article 26 assurances to each religious category or any segment
thereof the privilege to deal with its own issues in issues of religion and condition (d)
gives them the privilege to oversee their property (organizations) as per laws go by the
State. It is clear from the dialect of the conditions (b) and (d) of article 26 that there is a
fundamental distinction between the privilege of a section to deal with its religious
undertakings and its entitlement to deal with its property.

Judicial Perception of the Right to Freedom of Religion

The expression “religion” has not been characterized in the Constitution and it is not
helpless of any unbending definition. The Supreme Court has characterized it in several
cases. A religion is positively a matter of confidence and is not really mystical. Religion
has its premise in “an arrangement of the convictions or conventions which are
respected by the individuals who pronounce that religion as helpful for their profound
prosperity”, however, it would not be right to state that religion is nothing else except for
a teaching or conviction. A religion may not just set out a code of moral principles for its
devotees to acknowledge, it may endorse customs and observances, services and
methods of love which are viewed as a fundamental piece of religion and these
structures and observances may degree even to issues of sustenance and dress. Subject
to specific confinements, Article 25 presents a major ideal for everyone, not only to
engage such religious convictions as might be affirmed by his judgment or soul yet, in
addition, display his convictions and thoughts by such unmistakable acts and practices
which are authorized by his religion. Presently what rehearses are secured under the
Article is to be chosen by the courts regarding the convention of a specific religion and
incorporate practices viewed by the group as a feature of its religion. The courts have
gone into religious sacred texts to find out the status of a training in question. In various
cases, the courts have remarked upon, clarified a translated the arrangements of the
10 | P a g e
Constitution on uninformed, non-separation, and religious opportunity. The choices in
the greater part of these cases have been given is the settings of the privileges of specific
religious groups or under spend; laws identifying with such groups. A brief on real
choices takes after.

In India, the need to characterize religion was raised interestingly by Dr.B.R. Ambedkar
when the issue relating to individual law and its connection to religion desired dialog in
the Constituent Assembly. He called attention to: The religious originations in this
nation are vast to the point that they cover each part of life from birth to death. There is
nothing which is not a religion and if the individual law is to be spared I am certain
about it that in social issues we will grind to a halt… There is nothing uncommon in
saying that we should endeavor from now on to constrain the meaning of religion in
such a way, to the point that we might not expand it past convictions and such
ceremonies as might be associated with ceremonials which are basically religious. It is
redundant that the kind of laws, for example, laws identifying with occupancy or laws
identifying with progression ought to be represented by religion… I for one don’t
comprehend why religion ought to be given this huge broad ward in order to cover the
entire of life and to keep the governing body from infringing upon that field.

On the supposition of Dr. B.R. Ambedkar, what constitutes a “religion” or ‘matters of

religion’ is to be found out by restricting to religious convictions and ceremonies, which
are held as basically religious in a specific religion, which is under legal audit. The
Indian Constitution has no unequivocal meaning of “religion” or ‘matters of religion’.
Under the order of article 32 of the Constitution, which gives the privilege to protected
cures, it is left to the Supreme Court to settle on the legal importance of such terms. In
the mid-1950s of every various case, the Courts in India had been confronted with the
issue of characterizing “religion” as given in article 25 (1) and ‘matters of religion’ as
gave in article 26 (b). The specialist should now continue to analyze some of those cases,
which were bid under the steady gaze of the Supreme Court of India for legal grouping.

11 | P a g e
Some landmark cases in the matter of Right to religion under Indian Constitution

1. Ratilal Panachand Gandhi v. Territory of Bombay. (Hereafter the Ratilal case)

The Ratilal case, the Supreme Court was by and by engaging settle on the legal use of
“religion” and ‘matters of religion’ as suggested morally justified to exercise of religion
ensured under articles 25 and 26 of the Constitution. The case emerged out of the
Bombay Public Trust Act, 1950, go to the Bombay State Legislature. Like the Madras Act
of 1951, the question of the Bombay Act as expressed in its preface was to control and to
improve arrangement for the organization of open religious and beneficent trusts in the
State of Bombay.

Section 18 of the Bombay Public Trust Act, 1950, pronounced that it was mandatory
upon the trustee of each open trust to which the Act connected, to make an application
for the enrollment of the trust. Like section 21 of the Madras Act of 1951, Section 37 of
the Bombay Act likewise approved the Charity Commissioner and his subordinate
officers to enter and review any property having a place with an open trust. Section 44 of
the Act given that the Charity Commissioner may be selected by a Court of competent
jurisdiction or by the creator of the trust to go about as a sole trustee of an open trust.
Section 74 offered forces to the Court to select other trustee or trustees and the Court, in
the wake of making a request, could name the Charity Commissioner or whatever other
individual as a trustee to top of the opening.

The Manager of a Jain Public Temple and Trustees of Parsi Panchayat Funds and
Properties in Bombay challenged before the Bombay High Court the constitutional
validity of the Bombay Public Trust Act of 1950. It was done on the ground that the
provisions of the Bombay Act of 1950 contradicted opportunity hone religion as ensured
in article 25 (1) and flexibility to oversee matters of religion as secured by article 26 (b)
of the Constitution. The Bombay High Court denied the appeal to in the light of sub-
provision (c) and (d) of article 26 of the Constitution, which gives the State expert to
authorize the enactment as given in the Bombay Act, Therefore, the Bombay High Court
settled the case for the State on the premise of the definition that the Court provided for
religion in the momentous case. This definition decreased religion to otherworldly and
moral viewpoints just and wiped out mainstream exercises, similar to the property
12 | P a g e
proprietorship and is related to religious practices, from the assurance ensured in the
Constitution. The Chief Justice, Mr. M.C. Chagla who conveyed the judgment of the
Bombay High Court stated: “Religion” as utilized as a part of expressions. 25 and 26
must be translated in its strict and etymological sense. Religion is what ties a man with
his Creator, however, Mr. Sommaya for the benefit of his customer (Panachand) says
that to the extent Janise are concerned, they don’t have confidence in a Creator and that
qualification would not have any significant bearing to the Jains. Be that as it may, even
where you have a religion which does not have confidence in a Creator, each religion
must trust in a heart and it must have faith in morality and good statutes. Consequently,
whatever ties a man to his own heart and whatever good and moral standards manage
the lives of men, that by itself can constitute religion as comprehended by the
Constitution. A religion may have numerous mainstream exercises, it might have
common viewpoints, yet these common exercises and perspectives don’t constitute
religion as comprehended by the Constitution. There are religions which bring under
their own shroud each human movement. There is nothing which a man can do,
regardless of whether in the method for garments or sustenance or drink, which is not
viewed as a religious movement. In any case, it is ridiculous to recommend that a
Constitution for a mainstream State at any point expected that each human and
unremarkable action was to be secured under the pretence of religion, and it is in this
way in deciphering religion in that strict sense that we should approach articles 25 and
26.

2. Durgah Committee, Ajmer v. Syed Hussain Ali. (Henceforth the Durgah

Committee case)

In the Durgah Committee case, an appeal was made by and by to settle on “the issues of
religion” which is ensured under statement (b) of article 26. The historical backdrop of
the present case is as per the following: In 1955, the Parliament had passed the Durgah
Khawaja Saheb Act, to regulate the Durgah and the blessing of the Durgah Khawaja
Moinuddin Christi at Ajmer. This Durgah, which is a Muslim pioneer focus worked at
the tomb of Khawaja Moinuddin Saheb who is a Christi holy person, has been gone to by
both Muslim and Hindu travelers.

13 | P a g e
Section 4 and 5 of the Durgah Khawaja Saheb Act of 1955, accommodated the
arrangement of a Durgah Committee by the Central Government to control and deal
with the Durgah endowment According to the terms of Section 4 and 5 of the Act, the
individuals from the panel designated by the Government were to be Hanafi Muslims.
Section 15 of the Act set out the direction that the Committee ought to take after the
Muslim guidelines and precepts of the Christi holy person in performing and leading the
setup rituals and functions at the tomb of the Christi holy person.

The Khadims (the traditional caretakers of the tomb) tested the legality of the Act on the
ground that it encroached upon their rights ensured in article 26(b), (c) and (d). Their
test prevailing in the High Court of Rajasthan. In issuing the judgment, the Rajasthan
High Court watched that the arrangements for the arrangement of the Committee
individuals were ultra vires to the degree that the arrangement of the Committee
individuals kept away from individuals from the Chisti arrange who have the confidence
in the religious practices and customs related with the Chisti holy person altar. Different
arrangements of the Act influencing the benefits and obligations of the functionaries of
the place of worship were likewise proclaimed violative of articles 19 and 25 of the
Constitution.

On appeal, the Supreme Court found that the provisions of the said Act were not
violative of the Constitutional rights ensured to religious groups. The Court watched
that the Act managed just the common practices related with religion, which was not a
fundamental or vital piece of religion. Mr. Equity P.B.

Gajendragadkar who conveyed the consistent judgment of the Court stated: Whilst we
are managing this point it may not be strange by chance to strike a note of alert and
watch that all together that the practices being referred to ought to be dealt with as a
piece of religion they should be viewed by the said religion as its fundamental and vital
part; generally even simply mainstream hones which are not a basic or a necessary piece
of religion are well-suited to be dressed with a religious shape and may make a case for
being dealt with as religious practices inside the importance of article 26. Thus, even
practices however religious may have sprung from just superstitious convictions and
may in that sense is superfluous and unessential accumulations to religion itself. Unless

14 | P a g e
such practices found to constitute a fundamental and basic piece of a religion their case
for the security under Article 26 may be precisely examined; as such, the insurance must
be kept to such religious practices like a basic and a necessary piece of it and no other.

In conveying the judgment of the moment case, Mr. P. B. Gajendragadkar, J., who
represented the Court, focused on that ‘matters of religion’ secured under article 26 (b)
are those demonstrations which are dealt with as fundamental and essential part by the
religion. He advised that generally things that are not of religious concern can be
brought under its ambit such that religion can be utilized or controlled to true blue
superstitious convictions and practices which may hurt as opposed to empowering
human prosperity. This is the purpose behind the scholarly judge to strike a note of alert
to separate ‘matters of religion,’ whose insurance is ensured by the Constitution of India,
from common exercises appended to religious practices.

15 | P a g e
 ARTICLE 29 & 30

A linguistic or religious minority community can conserve its language and culture
through educational institutions but “no citizen shall be denied admission into any
educational institution maintained by the state or receiving aid out of state funds on
grounds only of religion, race, caste, language or any of them1”. Jamia Millia
Islamia and Aligarh Muslim University are the prominent examples of minority
educational institutions.

The Scope of Article 29 and 30 of the Constitution

These two articles confer four distinct rights.

1. The Right of citizens to conserve its language, script or culture

[Art.29(1)]1– “Any section of the citizens residing in the territory of India or
any part thereof having a distinct language, script or culture of its own shall
have the right to conserve the same”
2. The Right of a citizen not to be denied admission into state maintained and
state-aided institution on the ground only of religion, race, caste, or language
[Art.29(2)2]-”No citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of State funds on
grounds only of religion, race, caste, language or any of them”
3. The Right of all the religious or linguistic minorities to establish and
administer educational institutions of their own choice [Art.30(1)3]-“All
minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.”
4. The Right of an educational institution not to be discriminated against in the
matter of State aid on the ground that it is under the management of a
minority [Art.30(2)4]-“The state shall not, in granting aid to educational
institutions, discriminate against any educational institution on the ground
that it is under the management of a minority, whether based on religion or
language.”

16 | P a g e
To preserve language, script, and culture

Article 29(1) extends to all the citizens irrespective of the fact whether they are in
majority or minority, the only condition being that such section must have a distinct
language, script or culture of its own.

It is an absolute right for the minorities to preserve its language and culture through
educational institutions and cannot be subject to reasonable restrictions in the interest
of the general public.

Restrictions on the ground of religion, race, caste or language

Article 29(2) is an individual right given to citizen and not to any community. The
present clause gives an aggrieved person, who has been denied admission on the ground
of his religion. If a person has the academic qualifications but is refused
admission only on the grounds of religion, race, caste, language or any of them, then
there is a clear breach of the fundamental right under this section.5

Right to Establish and Administer Educational Institution

Article 30(1) is further divided into two parts, Right to Establish & Right to Administer.

Right to establish

To claim the benefit under article 30(1) it is not necessary-

1. That the institution must seek to conserve the language, script or culture of the
minority community; what is necessary is its establishment by the minority
community, it may impart religious or secular education wholly unconnected
with language, script, and culture.
2. That admission into such institution must be confined exclusively to members
of the minority community, and not a single member of the majority
community or other minority communities should have its advantage.6

17 | P a g e
Case Study of Aligarh Muslim University (AMU) {Azeez Basha v. Union of
India}

In the case of Azeez Basha v. Union of India 7, the Supreme Court held that if an
educational institution is not been established by the minority community then they
have no right to administer it. The term “established” and “administered” have to be
read in coordination. The University Grants Commission Act prohibits the formulation
of “University” established by the educational institution unless and until it is governed
by law.

1. Wanchoo clearly stated that the article cannot be read to mean that even if the
minority institution had been established by any other authority (Act of
Parliament), in this case, the religious minority cannot avail the services of the
university because “establish” and “authority” are the terms which are
complementary to each other.

In the case of Dr. Naresh Agarwal v. Union of India8, where 50% of the seats to
be filled on the basis of entrance examination conducted by Aligarh Muslim University
and the other 50% of the seats was reserved for Muslim Candidates. The petitioners in
this case, who are Hindu by caste have been deprived of their right to participate in the
process of admission against that 50%. The Allahabad High Court followed the
judgment of Azeez Basha v. Union of India and held that AMU is not a minority
institution and struck down the amendment which was made in the favor of Aligarh
Muslim University.

Definition of Minority

The term ‘minority’ is not defined anywhere in the Constitution of India but the judges
have interpreted the meaning in many different cases which are mentioned below:

18 | P a g e
  Re-Education Bill [9]

Supreme Court through J. S.R Das held that “minority” means a community which is
numerically less than 50% of the total population.

A similar judgment was passed by the Kerala High Court in the case of A.M Patroni v.
Kesavan10 in which it was held that “any religious or linguistic community which is
less than 50% of the total population shall be considered as a “minority”.

 D.A.V College, Bathinda v. State of Punjab & Ors [11]

For the purpose of article 30(1) a community may constitute a minority based on
language, even though they may not have a separate script; it would be enough if they
have a separate spoken language.

Right to administer

The word “administer” under article 30(1) of the Constitution means the right to
manage and conduct the affairs of the institution. It is open to a university to impose
reasonable conditions upon a minority institution for maintaining the requisite
educational standard and efficiency like-

1. Qualifications of teachers to be appointed in the institution;

2. Conditions of service e.g the age of superannuation of teachers;
3. Qualifications for entry of students;
4. Courses of study (subject to special subjects which the institution may seek to
teach)
5. Hygiene and physical training of students.12

In State of Bombay v. Bombay Education Society13, it was held that

“Where…..A minority like the Anglo Indian community, which is based, inter-alia, on
religion and language has the fundamental right to conserve its language, script and
culture under Article 29(1) and has the right to establish and administer educational
19 | P a g e
institution of their choice under Article 30(1)5 surely then there must be implicit in the
fundamental right, the right to impart instruction in their own institutions to children
of their own community in then own language…….such being the fundamental right
the police power of the state to determine the medium of instruction must yield to the
fundamental right to the extent it is necessary to give effect to it and can not be
permitted to run counter to it”

In St. Xavier’s College v. The State of Gujarat, the court held that the right to
administer is the right to ‘conduct’ and ‘manage’ the affairs of the institution.

Admission Procedure in Minority Educational Institution

In St. Stephen’s College v. University of Delhi14, the preference is given to

Christian students by St.Stephen’s College was challenged.

The Supreme Court by the majority of 1 to 4 held that the college is not bound to follow
the university circulars as it will deprive the college of their minority character. The
right to select students for admission is an important facet of administration. This
power also can be regulated but the regulation must be reasonable and should be
conducive to the minority institutions. The impugned directive of the university to select
students on the uniform basis of marks secured in the qualifying examinations would
deny the right to the college to admit students belonging to the Christian community.
Unless some concession is provided to the Christian students.

The court decided the two categories for the selection process:

1. Category I – 50% of the seats reserved for the minority community.
2. Category II – remaining 50% are selected on the basis of merit.

But in T.M.A Pai Foundation v. State of Karnataka [16], it was held that “A
minority institution may have its own procedure and method of admission as well as
selection of students, but such a procedure must be fair and transparent, and the

20 | P a g e
selection of students in professional and higher education colleges should be on the
basis of merit. The procedure adopted or selection made should not tantamount to
maladministration. Even an unaided minority institution ought not to ignore the merit
of the students to the colleges aforesaid, as in that event, the institution will fail to
achieve excellence”.

The court also overruled the decision in St. Stephen‟s case. The court has now granted
the power to the state to fix quotas for minority students.

21 | P a g e
 RIGHT TO CONSTITUTIONAL REMEDIES ARTICLE 32

Concept and Purpose

Article 32 of the Indian Constitution gives the right to individuals to move to the
Supreme Court to seek justice when they feel that their right has been ‘unduly deprived’.
The apex court is given the authority to issue directions or orders for the execution of
any of the rights bestowed by the constitution as it is considered ‘the protector and
guarantor of Fundamental Rights’.

Under Article 32, the parliament can also entrust any other court to exercise the power
of the Supreme Court, provided that it is within its Jurisdiction. And unless there is
some Constitutional amendment, the rights guaranteed by this Article cannot be
suspended. Therefore, we can say that an assured right is guaranteed to individuals for
enforcement of fundamental rights by this article as the law provides the right to an
individual to directly approach the Supreme Court without following a lengthier process
of moving to the lower courts first as the main purpose of Writ Jurisdiction under
Article 32 is the enforcement of Fundamental Rights.

Dr Ambedkar stated that:

“If I was asked to name any particular article in this Constitution as the most important-
an article without which this Constitution would be a nullity— I could not refer to any
other article except this one. It is the very soul of the Constitution and the very heart of
it and I am glad that the House has realized its importance.”

Nature of Writ Jurisdiction

The nature of Writ Jurisdiction provided under this Article is discretionary. There are
five important factors for guiding this discretion.

22 | P a g e
 Factors Guiding the
Meaning
Discretion

1. Locus Standi Right to bring an action or to be heard before a court.

2. Alternative Relief Remedies sought in a lawsuit in various or alternative forms.

3. Res Judicata A case that has been decided.

4. Questions of the Fact An issue that involves resolution of a factual dispute or controversy.

A defence to an equitable action,that bars recovery by the plaintiff

5. Laches
because of the plaintiff’s undue delay in seeking relief.

Types of Writs

There are five types of Writs as provided under Article 32 of the Constitution:

1. Habeas Corpus

 Meaning

It is one of the important writs for personal liberty which says “You have the Body”. The
main purpose of this writ is to seek relief from the unlawful detention of an individual. It
is for the protection of the individual from being harmed by the administrative system
and it is for safeguarding the freedom of the individual against arbitrary state action
which violates fundamental rights under articles 19, 21 & 22 of the Constitution. This
writ provides immediate relief in case of unlawful detention.

 When Issued?
23 | P a g e
Writ of Habeas Corpus is issued if an individual is kept in jail or under a private care
without any authority of law. A criminal who is convicted has the right to seek the
assistance of the court by filing an application for “writ of Habeas Corpus” if he believes
that he has been wrongfully imprisoned and the conditions in which he has been held
falls below minimum legal standards for human treatment. The court issues an order
against prison warden who is holding an individual in custody in order to deliver that
prisoner to the court so that a judge can decide whether or not the prisoner is lawfully
imprisoned and if not then whether he should be released from custody.

 Important judgments on Habeas Corpus

The first Habeas Corpus case of India was that in Kerala where it was filed by the
victims’ father as the victim P. Rajan who was a college student was arrested by the
Kerala police and being unable to bear the torture he died in police custody. So, his
father Mr T.V. Eachara Warrier filed a writ of Habeas Corpus and it was proved that he
died in police custody.

Then, in the case of ADM Jabalpur v. Shivakant Shukla [1] which is also known as
the Habeas Corpus case, it was held that the writ of Habeas Corpus cannot be suspended
even during the emergency (Article 359).

While deciding whether Habeas Corpus writs are civil or criminal in nature, it was held
in Narayan v. Ishwarlal [2] that the court would rely on the way of the procedures
in which the locale has been executed.

This writ has been extended to non-state authorities as well which is evident from two
cases. One from the Queen Bench’s case of 1898 of Ex Parte Daisy Hopkins in
which the proctor of Cambridge University detained and arrested Hopkins without his
jurisdiction and Hopkins was released. And in the case of Somerset v.
Stewart wherein an African Slave whose master had moved to London was freed by the
action of the Writ.

24 | P a g e
2. Quo Warranto

 What does the writ of Quo Warranto mean?

Writ of Quo Warranto implies thereby “By what means”. This writ is invoked in cases of
public offices and it is issued to restrain persons from acting in public office to which he
is not entitled to. Although the term ‘office’ here is different from ‘seat’ in legislature but
still a writ of Quo Warranto can lie with respect to the post of Chief Minister holding a
office whereas a writ of quo warranto cannot be issued against a Chief Minister, if the
petitioner fails to show that the minister is not properly appointed or that he is not
qualified by law to hold the office. It cannot be issued against an Administrator who is
appointed by the government to manage Municipal Corporation, after its dissolution.
Appointment to public office can be challenged by any person irrespective of the fact
whether his fundamental or any legal right has been infringed or not.

 The court issues the Writ of Quo Warranto in the following cases:

1. When the public office is in question and it is of a substantive nature. A

petition against a private corporation cannot be filed.
2. The office is created by the State or the Constitution.
3. The claim should be asserted on the office by the public servant i.e.
respondent.

 Important Case Laws

In the case of Ashok Pandey v. Mayawati [3], the writ of Quo Warranto was
refused against Ms Mayawati (CM) and other ministers of her cabinet even though they
were Rajya Sabha members.

Then in the case of G.D. Karkare v. T.L. Shevde [4], the High Court of Nagpur
observed that “In proceedings for a writ of quo warranto, the applicant does not seek to
enforce any right of his as such nor does he complain of any non-performance of duty

25 | P a g e
towards him. What is in question is the right of the non-applicant to hold the office and
an order that is passed is an order ousting him from that office.”

The Writ of quo warranto was denied by the court in the case of Jamalpur Arya
Samaj v. Dr D. Ram [5]. The writ was denied on the ground that writ of quo warranto
cannot lie against an office of a private nature. And also it is necessary that office must
be of substantive character. Whereas in the case of R.V. Speyer [6] the word
‘substantive’ was interpreted to mean an ‘office independent to the title’. Also in H.S.
Verma v. T.N. Singh[7], the writ was refused as the appointment of a non-member of
the state legislature as C.M. was found valid in view of Article 164(4) which allows such
appointment for six months.

3. Mandamus

 Writ of Mandamus

Writ of Mandamus means “We Command” in Latin. This writ is issued for the correct
performance of mandatory and purely ministerial duties and is issued by a superior
court to a lower court or government officer. However, this writ cannot be issued against
the President and the Governor. Its main purpose is to ensure that the powers or duties
are not misused by the administration or the executive and are fulfilled duly. Also, it
safeguards the public from the misuse of authority by the administrative bodies.
The mandamus is “neither a writ of course nor a writ of right but that it will be granted
if the duty is in nature of public duty and it especially affects the right of an individual,
provided there is no more appropriate remedy” [8]. The person applying for mandamus
must be sure that he has the legal right to compel the opponent to do or refrain from
doing something.

 Conditions for issue of Mandamus

1. There must rest a legal right of the applicant for the performance of the legal
duty.

26 | P a g e
 2. The nature of the duty must be public.
3. On the date of the petition, the right which is sought to be enforced must be
subsisting.
4. The writ of Mandamus is not issued for anticipatory injury.

 Limitations

The courts are unwilling to issue writ of mandamus against high dignitaries like the
President and the Governors. In the case of S.P. Gupta v. Union of India [9], judges
were of the view that writ cannot be issued against the President of India for fixing the
number of judges in High Courts and filling vacancies. But in Advocates on Records
Association v. Gujarat [10], the Supreme Court ruled that the judges’ issue is a
justiciable issue and appropriate measures can be taken for that purpose including the
issuance of mandamus. But in C.G. Govindan v. State of Gujarat [11], it was
refused by the court to issue the writ of mandamus against the governor to approve the
fixation of salaries of the court staff by the Chief Justice of High Court under Article 229.
Hence, it is submitted that the Governor or the President means the state or the Union
and therefore issuance of mandamus cannot take place.

 Important Judgements

In Rashid Ahmad v. Municipal Board [12], it was held that in relation to

Fundamental Rights the availability of alternative remedy cannot be an absolute bar for
the issue of writ though the fact may be taken into consideration.

Then, in the case of Manjula Manjori v. Director of Public Instruction, the

publisher of a book had applied for the writ of mandamus against the Director of Public
Instruction for the inclusion of his book in the list of books which were approved as text-
books in schools. But the writ was not allowed as the matter was completely within the
discretion of D.I.P and he was not bound to approve the book.

4. Certiorari

27 | P a g e
  What does Writ of Certiorari mean?

Writ of Certiorari means to be certified. It is issued when there is a wrongful exercise of

the jurisdiction and the decision of the case is based on it. The writ can be moved to
higher courts like the High Court or the Supreme Court by the affected parties.

There are several grounds for the issue of Writ of Certiorari. Certiorari is not issued
against purely administrative or ministerial orders and that it can only be issued against
judicial or quasi-judicial orders.

 When is a writ of Certiorari issued?

It is issued to quasi-judicial or subordinate courts if they act in the following ways:

1. Either without any jurisdiction or in excess.

2. In violation of the principles of Natural Justice.
3. In opposition to the procedure established by law.
4. If there is an error in judgement on the face of it.

Writ of certiorari is issued after the passing of the order.

 Important Judgements on writ of Certiorari

In Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court has explained
the meaning, ambit and scope of the writ of Certiorari. Also, in this it was explained that
Certiorari is always available against inferior courts and not against equal or higher
court, i.e., it cannot be issued by a High Court against any High Court or benches much
less to the Supreme Court and any of its benches. Then in the case of T.C. Basappa v.
T. Nagappa & Anr. [13], it was held by the constitution bench that certiorari maybe
and is generally granted when a court has acted (i) without jurisdiction or (ii) in excess
of its jurisdiction. In Hari Bishnu Kamath v. Ahmad Ishaque [14], the Supreme
Court said that “the court issuing certiorari to quash, however, could not substitute its
own decision on the merits or give directions to be complied with by the court or

28 | P a g e
tribunal. Its work was destructive, it simply wiped out the order passed without
jurisdiction, and left the matter there.” In Naresh S. Mirajkar v. State of
Maharashtra [15], it was said that High Court’s judicial orders are open to being
corrected by certiorari and that writ is not available against the High Court.

5. Prohibition

 What does Writ of Prohibition mean?

It is a writ directing a lower court to stop doing something which the law prohibits it
from doing. Its main purpose is to prevent an inferior court from exceeding its
jurisdiction or from acting contrary to the rules of Natural Justice.

 When is the writ of Prohibition issued?

It is issued to a lower or a subordinate court by the superior courts in order to refrain it

from doing something which it is not supposed to do as per law. It is usually issued
when the lower courts act in excess of their jurisdiction. Also, it can be issued if the court
acts outside its jurisdiction. And after the writ is issued, the lower court is bound to stop
its proceedings and should be issued before the lower court passes an order. Prohibition
is a writ of preventive nature. The principle of this is ‘Prevention is better than cure’.

 Important Case Laws

In case of East India Commercial Co. Ltd v. Collector of Customs [16], a writ of

prohibition was passed directing an inferior Tribunal prohibiting it from continuing
with the proceeding on the ground that the proceeding is without or in excess of
jurisdiction or in contradiction with the laws of the land, statutes or otherwise. Then in
the case of Bengal Immunity Co. Ltd [17], the Supreme Court pointed out that
where an inferior tribunal is shown to have seized jurisdiction which does not belong to
it then that consideration is irrelevant and the writ of Prohibition has to be issued as a
right.

29 | P a g e
Amendments to Article 32

‘Anti-freedom’ clauses were included in Article 32 by the 42nd Amendment. Such an

amendment was made during the time of emergency when it was passed to reduce ‘both
directly and indirectly’ the jurisdiction of the Supreme Court and the High Courts to
review the application of fundamental rights. Then 43rd amendment of the Indian
Constitution was passed which repealed Article 32A immediately after the emergency
was revoked. Following the amendment, the Supreme Court again gained the power to
quash the state laws. Also, the High Courts got the power to question the constitutional
validity of central laws.

Limitations to Article 32

There are certain circumstances during which the citizens do not get the privileges
which they ought to under Article 32. Therefore, the situations when the fundamental
rights may be denied to the citizens but the constitutional remedies will not be available
i.e. Article 32 will not be applicable are:

 Under Article 33, the Parliament is empowered to make changes in the

application of Fundamental Rights to armed forces and the police are
empowered with the duty to ensure proper discharge of their duties.
 During the operation of Martial law in any area, any person may be
indemnified by the Parliament, if such person is in service of the state or
central government for the acts of maintenance or restoration of law and order
under Article 34.
 Under Article 352 of the Constitution when an emergency is proclaimed, the
guaranteed Fundamental Rights of the citizens remains suspended. Also,
Fundamental Rights guaranteed under Article 19 is restricted by the
Parliament under Article 358 during the pendency of an emergency.
 Article 359 confers the power to the President to suspend Article 32 of the
Constitution. The order is to be submitted to the Parliament and the
Parliament may disapprove President’s order.

30 | P a g e
Conclusion

The constitutional remedies provided to the citizens are the powerful orders with
immediate effect. And the writs are mostly invoked against the state and are issued
when PILs are filed. The Writ Jurisdictions which are conferred by the Constitution
though have prerogative powers and are discretionary in nature and yet they are
unbounded in its limits. The discretion, however, is exercised on legal principles.
Therefore, the first essential on which the constitutional system is based in the absence
of arbitrary power. Hence, the decision must be taken on the basis of sound principles
and rules and should not be based on whims, fancies or humour. And if a decision is not
backed by any principles or rules, then such a decision is considered arbitrary and is
taken not in accordance with the rule of law.

31 | P a g e
(Note: This not an original work but just a compilation from various online sources
prepared purely for academic purpose).

32 | P a g e