Constitutional Law – I

Unit 05
Cultural and Educational Rights of Minorities – Recent Trends – Right to Constitutional
Remedies: Article 32 And 226 – Kinds of Writs – Right to Property (Prior To 1978 And
the Present Position), Directive Principles of State Policy and Fundamental Duties – Inter
Relation Between Fundamental Rights and Directive Principles

Cultural and Educational Rights (Minority Rights)

Article 29
Article 29 (1) guarantees “to any section of the citizens residing in any part of India having a distinct
language, script or culture of its own, the right to conserve the same, i.e., language, script or culture. A
minority community can preserve its language, script or culture by and through educational institutions”.
Article 29 (2) says that no citizen shall be denied admission into any educational institutions maintained by
the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of
them.
Distinction between Article 29 (2) & Article 15 (1)
Article 15 (1) Article 29 (2)
It protects all citizens against the State. The protection extends against the State, or anybody
else who denies the right conferred by it.
It protects all citizens against discrimination. It is a protection against a particular species of wrongs,
namely, denial of admission into educational
institutions of the types mentioned therein.
It applies to all citizens whether they belong to It confers a special right on citizens for admission into
the majority or minority groups and gives educational institutions maintained or aided by the
protection to all citizens against discrimination State.
by the State on certain specific grounds.
It prohibits discrimination on the grounds of It does not mention these grounds.
sex or place of birth.

Case law:
• State of Madras v. Champakam Dorairajan
An order of Madras Govt had fixed the proportion of students of each community that could be
admitted into the State Medical and Engineering Colleges. The order was challenged on the ground
that it denied admissions to a person only on the ground of religion or caste. The court held the order
invalid for being violative of Article 29 (2).

• State of Bombay v. Bombay Educational Society

The Supreme Court struck down an order of the Bombay Government banning admission of those
whose language was not English into schools having English as a medium of instruction because it
denied admission solely on the ground of language. The order, the Court said, would not be valid,
even if the object for making it was the promotion or advancement of national language.
Note: The protection of Article 29 (2) does not apply where the student is expelled from an institution on
grounds of indiscipline, or where he is refused admission on grounds of his not possessing requisite
qualifications.

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 Constitutional Law – I
Unit 05

Right of Minorities to establish and manage Educational Institutional (Article 30)

Article 30 (1) says that all minorities whether based on religion or language shall have the right to establish
and administer educational institutions of their choice.
The word “establish” indicates the right to bring into existence, while the right to administer an institution
means the right to effectively manage and conduct the affairs of the institution.
The word “administration” means management of the affairs of the institution. The management must be
free of control so that the founders of their community can mould the institution as they think fit in
accordance with their ideas of how the interest of the community in general and the institution will be
served.
Article 30 (2) prohibits the State from making discrimination in the matter of grant of aid to any educational
institution on the ground that it is managed by a religious minority or linguistic minority.
In State of Bihar v. Syed Asad Raza, it has been held that for creation of post in a minority institution for
appointment prior approval of the Vice-Chancellor is not necessary and the persons so appointed would be
entitled to grant in aid in view of Article 30 (1) of the Constitution.
Note: Article 29 applies only to citizens while Article 30 applies to both citizens and non-citizens.
Right to Constitutional Remedies
Part III of our Constitution provides for legal remedies for the protection of these rights against their
violation by the State or other institutions / individuals. It entitles the citizens of India to move the
Supreme Court or High Courts for the enforcement of these rights.
Article 32
Article 32 was regarded by Dr. Ambedkar as the “very soul of the constitution and the very heart of it.”
Article 32 (1) guarantees the right to move the Supreme Court by “appropriate proceedings” for the
enforcement of the Fundamental right conferred by Part III of the Constitution.
In other words, it is clear that whenever there is a violation of a fundamental right, any person can move the
Court for an appropriate remedy.
The traditional rule is that the right to move the Supreme Court is only available to those whose
Fundamental Rights are infringed, though now courts permit Public Interest Litigation for the enforcement
of the rights of any person or group of persons who are unable tb approach the Court for relief due to
poverty or any other disadvantage.
Article 32 (2) confers power on the Supreme Court to issue appropriate directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari for the
enforcement of any of the rights conferred by Part III of the Constitution.
Article 32 (3) says Parliament may be law empower any other court to exercise within the local limits of its
jurisdiction all or of the powers exercisable by the Supreme Court under clause (2).
Article 32 (4) says that the right guaranteed by Article 32 shall not be suspended except as otherwise
provided for the Constitution.
Article 32 thus provides for an expeditious and inexpensive remedy for the protection of fundamental rights
from legislative and executive interference.

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 Constitutional Law – I
Unit 05

Issue of Writs under Article 32 and 226 of the Constitution of India

The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of the Constitution for the violation
of fundamental rights guaranteed under Part III of the Constitution.
The Judiciary has the power to issue the prerogative writs- These are the extra-ordinary remedies provided
to the citizens to get their rights enforced against any authority in the State.
These writs are –
• Mandamus
The term “Mandamus” in Latin means “We Command”.
Mandamus according to Black's Law Dictionary,
"A writ issued by a court to compel performance of a particular act by lower court or a government
officer or body, to correct a prior action or failure to act."

This writ is issued to a public official who refrains from performing his public duties which he is
obliged to do. This writ can also be issued to any public authority (including the government,
corporation and Court) who commits an act which is detrimental to the welfare of the general public.
This writ however cannot be issued against the President and the Government.

• Certiorari
Certiorari means to be certified.

The Writ of Certiorari is issued by the Supreme Court to some inferior Court or tribunal to transfer
the matter to it or to some other superior authority for proper consideration.

The Writ of Certiorari can be issued by the Supreme Court or any High Court for quashing the order
already passed by an inferior court.

Conditions for the issue of Writ of Certiorari:

a. There should be court, tribunal or an officer having legal authority to determine the question
of deciding fundamental rights with a duty to act judicially.
b. Such a court, tribunal or officer must have passed an order acting without jurisdiction or in
excess of the judicial authority vested by law in such court, tribunal or law. The order could
also be against the principle of natural justice or it could contain an error of judgement in
appreciating the facts of the case.

• Prohibition
It means to forbid or to stop and it is popularly known as “Stay Order”.
It is a Writ issued by a Superior Court to lower court or a tribunal forbidding it to perform an act
outside its jurisdiction. After the issue of this Writ, proceedings in the lower court etc come to a stop.
Writ of Prohibition is not available against a public officer not vested with judicial or quasi-judicial
powers. The Supreme Court can issue this Writ only where a fundamental right is affected.

• Quo-Warronto
The word Quo Warranto literally means “by what warrants?”.
It is a writ issued with a view to restraining a person from acting in a public office to which he is not
entitled.
The writ of Quo-Warranto is issued in 3 instances when:
a. The office in question is a public office and is substantive in nature
b. The State or the Constitution has created the office
c. The public servant should have asserted a Chaim on the office.
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 Constitutional Law – I
Unit 05

• Habeas Corpus
Habeas Corpus means “Let us have the body”. A person, when arrested, can move the Court for the
issue of Habeas Corpus. It an order by a Court to the detaining authority to produce the arrested
person before it so that it may examine whether the person has been detained lawfully or otherwise.
If the Court is convinced that the person is illegally detained, it can issue orders for his release.

In Malkiat Singh v. State of UP case, the son of a person was allegedly kept in illegal custody by the
police officers. It was established that the son was killed in an encounter with the police. The court
awarded Rs 500000 as compensation to the petitioner.
The Fundamental Rights provided to the citizens by the Constitution cannot be suspended by the State.
except during the period of emergency, as laid down in Article 359 of the Constitution.
Restrictions on Fundamental Rights of Members of Armed Forces (Article 33)
Article 33 is an exception to the fundamental rights conferred by Part III of the Constitution.
This Article empowers the Parliament to restrict or abrogate by law fundamental rights in the application to
a. The members of the armed forces or
b. The forces charged with the maintenance of public order
c. The persons employed in any bureau or other organisation established by the State for purposes of
intelligence and
d. Persons employed in connection with the tele-communication system set up for purposes of any
force, bureau or organisation referred to in clauses (a) to (c) of Article 33 of the Constitution.
The object of this restriction is to ensure the proper discharge of their duties and maintenance of discipline
amongst them. The Article 33 is only exercisable by Parliament and not by State Legislatures.
Restrictions of Fundamental Rights while Martial Law is in force in any area (Article 34)
Article 34 provides that notwithstanding anything in the foregoing provisions of this Part, Parliament may
by law indemnify any person in the service of the Union or of a State or any person in respect of any act
done by him for the maintenance or restoration of order in any area where Martial Law was in force.
The Indemnity validates any sentence passed, punishment inflicted, forfeiture ordered or other act done
under Martial law in such area. It offers an indemnity to members of armed forces of those connected with
the maintenance or restoration of order within India for all acts done within an area where Martial Law is in
force.
This power of Parliament is subject to following restrictions:
a. The act must be done for the maintenance of restoration of order, and
b. Martial Law was in force in the area where the act was done.
Martial Law is defined as meaning the suspension of ordinary law and the government of the country or part
of it by Military Tribunals.
This power is necessary, otherwise any act done during such time by executive or military authorities in
pursuance of maintaining or restoring order can be challenged in ordinary court of law when peace is
restored.

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 Constitutional Law – I
Unit 05

Directive Principles of State Policy

The DPSP contained in Part IV of the Constitution set out the aim and objectives to be taken up by the
States in the governance of the Country.
The Directive Principles are the ideals which the Union and State Governments must keep in mind while
they formulate policy or pass a law. It lay down certain economic and social policies to be pursued by the
various governments in India; they impose certain obligations on the State to take positive action in certain
directions in order to promote the welfare of the people and achieve economic democracy.
Article 37 of the Constitution declares that the DPSP “shall not be enforceable by any court, but the
principles therein laid down are nevertheless fundamental in the governance of the country and it shall be
the duty of the state to apply these principles in making laws”.
The DPSP cannot override the fundamental rights. However, in case of Kerala Education Bill, the Supreme
Court has observed in determining the ambit of the fundamental right the court may not entirely ignore the
directive principles. And they should try to give effect to both as much as possible.
Classification of DPSP
A. Social and Economic Charter
1. Social order based on Justice
2. Principles of policy to be followed by the state for securing economic justice
B. Social Security Charter
1. Participation of workers in management of Industries
2. Right to work, education and public assistance in certain cases
3. Just and human conditions of work
4. Living wages for workers
5. Provisions for early childhood care and education to children below the age of 6 years
6. Duty to raise the standard of living and improvement of health
7. Promotion of educational and economic interest of weaker sections
8. Equal justice and free legal aid to economically backward classes
C. Community Welfare Charter
1. Uniform Civil Code
2. Organisation of Agriculture and Animal Husbandry
3. Protection and Improvement of Forests and Wild Life
4. Protection of Monuments and Places and Objects of National Importance
5. Separation of Judiciary from Executive
6. Promotion of International Peace and Security
7. Organisation of Village Panchayats
Fundamental Duties (Article 51-A)
Article 51-A says that it shall be the duty of every citizen of India:
• To abide by Constitution and respect its ideal and institutions, the National Flag and National
Anthem.
• To cherish and follow the noble ideals which inspired our national struggle for freedom
• To uphold and protect the sovereignty, unity and integrity of India
• To defend the country and render national service when called upon to do so
• To promote harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities; to renounce practices
derogatory to the dignity of women
• To value and preserve the right heritage of our composite culture

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 Constitutional Law – I
Unit 05

• To protect and improve the natural environment including forests, lakes, rivers and wild life, and to
have compassion for living creature
• To develop the scientific temper, humanism and the spirit of inquiry and reform
• To safeguard public property and to abjure violence
• To strive towards excellence in all spheres of individual and collective activity so that the nation
constantly rises to higher levels of endeavour and achievements
• Who is a parent or guardian to provide opportunities for education to his child or as the case may be,
ward between the age of six and fourteen years

*****

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