Protection in respect of

Conviction for Offences: Blend

of Constitutional & Procedural
Laws

Every day in our daily lives, we come across various news reports where someone
is being accused of some offence(s).

The basic question which every legal enthusiast faces on coming across these is
whether there is some sort of fundamental rights or protection for the accused
ones or ones to be presented before courts for trial.

Our great Constitution makers must have also faced the same question and
dilemma at the time of framing of the constitution. Thus, to deal with the same,
Article 20 was included in Part III of the Indian Constitution.

Article 20 of the Indian Constitution makes up of 3 clauses.

In a simpler sense, these three clauses deal with issue of unnecessary and rather
undesirable actions by Legislature, Executive & implementing authorities.

The basic crux of these provisions are:

 First, it establishes that no one should be convicted for any offence other
than those violating the law in force at the time of the commission of the
offence and also, one couldn’t be penalised with a greater punishment
than what existed at the time of the commission of the act.
 Second, no one could be convicted and punished more than once for the
same offence involving the same set of facts.
 Third, no one should be compelled to produce such evidence and
information which could be used against him during trial incompetent
judicial tribunals.
Article 20 is among those Articles of the Indian Constitution, which can’t be put
aside even during an emergency. Thus, forms a cornerstone of the Indian
Constitution.

Now, let’s do a survey of three legal doctrines of the Indian Criminal

jurisprudence, which reflects the three clauses of the Article 20, i.e. Ex-post
facto law, Doctrine of Double Jeopardy and Prohibition against self-incrimination.

Provision against Ex post facto law: Clause

(1) of Article 20
The provision in question, i.e. Article 20 (1) says that one must not be
prosecuted and convicted in accordance with those laws which didn’t exist at the
time of the commission of the offence by the accused and also must not be
inflicted with punishments greater than those existing at the time of commission.

This provision negates the chance of retrospective implementation of laws

regarding criminal offences. In simpler speak, this provision brings a clampdown
to the legislative prerogative of the legislation by prohibiting retrospective
implementation of a law having criminal nature.

Illustration

Assume that a man, Bhairav Surve, practising black magic in Dhamangaon village
of Maharashtra, murders a child of his locality on 20th December 2012. Later, in
December 2013, the legislature of Maharashtra passes the Maharashtra
Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and
Aghori Practices and Black Magic Act, 2013 and by virtue of provision against Ex
post facto law, Bhairav Surve can’t be prosecuted and charged under the
mentioned Act as the commission of offence dates back to when the act didn’t
exist.

Though the legislation in India has the authority to implement laws

retrospectively this clause prohibits the Legislature to enact a criminal law
retrospectively. This provision ensures that no one could be booked or charged
under such laws, which were not in existence at the time of the commission of
the offence.

The Landmark judgement governing this doctrine came in the year 1953, in case
of Kedar Nath v. State of West Bengal. In this case, the Hon’ble Supreme
Court of India observed that, whenever an act is declared as a criminal offence
and/or provides penalty for same by the legislature, it is always prospective in
nature and can’t be implemented retrospectively to uphold what is being said
under Article 20 (1).

However, only the procedure of sentencing and convicting is what is prohibited

under this clause, and not the trial itself. Thus, a person accused according to a
particular procedure can’t be questioned under this clause and doctrine of Ex post
facto law.

Dealing with a similar situation, in the case of Mohan Lal v. State of

Rajasthan (AIR 2015 SC 2098) which involved Narcotics, Drugs and
Psychotropic Substances Act, the court opined that, only conviction and/or
punishments under an ex post facto law is prohibited under Article 20 and not
the trial or prosecution itself. Also, trial under a different procedure than what
existed during the commission of the act doesn’t come under the ambit of the
same and can’t be struck down as unconstitutional.

Double jeopardy: Clause (2) of Article 20

“Nemo debet bis vexari pro una et eadem causa”

The Doctrine of Double Jeopardy, which traces back its origin to American
jurisprudence of punishment, means that ‘no person can be prosecuted and
punished twice for the same offence in subsequent proceedings’. And, Article 20
(2), which reads that no one could be convicted and punished more than once
for the same offence involving the same set of facts guarantees against the
multiple convictions and Double jeopardy.

Prohibition against self-incrimination:

Clause (3) of Article 20
Another foremost rule which provides for protection from a conviction for offences
is ‘Prohibition against Self-incrimination.’ The same is provided by the
Constitution of India in Part III under Article 20 (3). It describes that no one
could be forced to utter and provide such information or evidence orally or by
documentary means which could be used against himself during the further trial
procedure.

Conclusion
If we would bother to analyse all the clauses of the Article 20 of the Indian

Constitution, we would come across this interesting inference that these clauses

i.e. Article 20(1), Article 20(2) and Article 20(3) reflects protection of convicted

persons from excess of Legislation, Judiciary and Executive actions respectively.

Also, these protections are available to all the people i.e. Indians as well as
foreigners and thus forms the bedrock of the Indian Constitution and guarantees
basic human rights to the convicted and accused

Right to Life (Article 21)

The Right to Life and Personal Liberty is assured by the Indian Constitution under Article
21. This is a very important and wide topic and has several implications for the citizens
of India.

Right to Life
According to Article 21:

“Protection of Life and Personal Liberty: No person shall be deprived of his life
or personal liberty except according to procedure established by law.”

 This fundamental right is available to every person, citizens and foreigners alike.
 Article 21 provides two rights:
 Right to life
 Right to personal liberty
 The fundamental right provided by Article 21 is one of the most important rights
that the Constitution guarantees.
 The Supreme Court of India has described this right as the ‘heart of fundamental
rights’.
 The right specifically mentions that no person shall be deprived of life and liberty
except as per the procedure established by law. This implies that this right has
been provided against the State only. State here includes not just the
 government, but also, government departments, local bodies, the Legislatures,
etc.
 Any private individual encroaching on these rights of another individual does not
amount to a violation of Article 21. The remedy for the victim, in this case, would be
under Article 226 or under general law.
 The right to life is not just about the right to survive. It also entails being able to live
a complete life of dignity and meaning.
 The chief goal of Article 21 is that when the right to life or liberty of a person is
taken away by the State, it should only be according to the prescribed procedure
of law.

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

A few important cases concerned with Article 21:

1. AK Gopalan Case (1950): Until the 1950s, Article 21 had a bit of a narrow scope. In
this case, the SC held that the expression ‘procedure established by law’, the
Constitution has embodied the British concept of personal liberty rather than the
American ‘due process’.
2. Maneka Gandhi vs. Union of India Case (1978): This case overturned the Gopalan
case judgement. Here, the SC said that Articles 19 and 21 are not watertight
compartments. The idea of personal liberty in Article 21 has a wide scope
including many rights, some of which are embodied under Article 19, thus giving
them ‘additional protection’. The court also held that a law that comes under
Article 21 must satisfy the requirements under Article 19 as well. That means any
procedure under law for the deprivation of life or liberty of a person must not be
unfair, unreasonable or arbitrary. Read the Maneka Gandhi case in detail in the
linked article.
3. Francis Coralie Mullin vs. Union Territory of Delhi (1981): In this case, the court
held that any procedure for the deprivation of life or liberty of a person must be
reasonable, fair and just and not arbitrary, whimsical or fanciful.
4. Olga Tellis vs. Bombay Municipal Corporation (1985): This case reiterated the
stand taken earlier that any procedure that would deprive a person’s
fundamental rights should conform to the norms of fair play and justice.
5. Unni Krishnan vs. State of Andhra Pradesh (1993): In this case, the SC upheld the
expanded interpretation of the right to life.
The Court gave a list of rights that Article 21 covers based on earlier
judgments. Some of them are:

1. Right to privacy
2. Right to go abroad
3. Right to shelter
4. Right against solitary confinement
5. Right to social justice and economic empowerment
6. Right against handcuffing
7. Right against custodial death
8. Right against delayed execution
9. Doctors’ assistance
10. Right against public hanging
11. Protection of cultural heritage
12. Right to pollution-free water and air
13. Right of every child to a full development
14. Right to health and medical aid
15. Right to education
16. Protection of under-trials

Right to Life and Suicide

Section 309 of the Indian Penal Code (IPC) makes attempted suicide a
criminal offence which is punishable with imprisonment and fine.

 There were many debates on whether this should continue since mental health
experts have argued that people who attempt suicide need adequate counselling
and not punishment.
 The Mental Healthcare Act, 2017 was passed by the Parliament and the law came
into force in 2018. This Act is meant to provide “for mental healthcare and services
for persons with mental illness and to protect, promote and fulfil the rights of such
persons during delivery of mental healthcare and services.”
 This law decriminalises suicide in India.
 The law states, “Notwithstanding anything contained in section 309 of the Indian
Penal Code, any person who attempts to commit suicide shall be presumed,
 unless proved otherwise, to have severe stress and shall not be tried and
punished under the said Code”.

Arguments against decriminalising suicide:

1. No person has a complete autonomy with respect to his/her life. He/she has a
duty with respect to his family. In many cases, a person’s suicide could lead to a
family being destitute.
2. Decriminalising suicide might lead to decriminalising the abetment to suicide.
The counterargument to this point is that suicide alone can be decriminalised by
having the necessary amendments or legal provisions to cover abetment to
suicide.

Arguments in favour of decriminalising suicide:

1. This is the only case where an attempt to a crime is punishable and not the crime
itself (because a person becomes beyond the reach of law if suicide is complete).
2. Suicide is committed/attempted by people who are depressed and under severe
stress. People who attempt suicide need counselling and medical help, not a jail
warden’s severe authority.
3. Decriminalising an attempt to suicide is different from conferring the ‘right to die’.

Right to Life and Euthanasia

There are many debates on whether the right to life also extends to the right
to die, especially to die with dignity. Euthanasia is a topic that is frequently
seen in the news. Many countries have legalised euthanasia (the Netherlands,
Belgium, Colombia, Luxembourg).

Euthanasia is the practice of intentionally ending life in order to relieve

suffering and pain. It is also called ‘mercy killing’.

There are various types of euthanasia: Passive and Active.

Passive Euthanasia: This is where treatment for the terminally-ill person is

withdrawn, i.e., conditions necessary for the continuance of life are withdrawn.

Active Euthanasia: This is where a doctor intentionally intervenes to end

someone’s life with the use of lethal substances.
This is different from physician-assisted suicide where the patient himself
administers the lethal drugs to himself. In active euthanasia, it is a doctor who
administers the drugs.

Voluntary euthanasia: Under this, euthanasia is carried out with the patient’s
consent.

Non-voluntary euthanasia: Under this, patients are unable to give consent

(coma or severely brain-damaged), and another person takes this decision
on behalf of the patient.

Involuntary euthanasia: Euthanasia is done against the will of the patient,

and this is considered murder.

International Position on Euthanasia:

In the Netherlands and Belgium, both euthanasia and physician-assisted

suicide are legal.

In Germany, euthanasia is illegal while physician-assisted suicide is legal.

Both euthanasia and physician-assisted suicide are illegal in India, Australia,

Israel, Canada and Italy.

Euthanasia in India
Passive euthanasia has been made legal in India.

 In 2018, the SC legalised passive euthanasia by means of the withdrawal of life

support to patients in a permanent vegetative state.
 This decision was made as a part of the verdict in the famous case involving
Aruna Shanbaug, who had been living in a vegetative state for more than 4
decades until her death in 2015.
 The court rejected active euthanasia by means of lethal injection. Active
euthanasia is illegal in India.
 As there is no law regulating euthanasia in the country, the court stated that its
decision becomes the law of the land until the Indian parliament enacts a suitable
law.
 Passive euthanasia is legal under strict guidelines.
  For this, patients must give consent through a living will, and should either be in a
vegetative state or terminally ill.
 Living Will: It is a legal document in which a person specifies what actions
should be taken for their health if they are no longer able to make such
decisions for themselves due to illness or incapacity.
 When the executor (of the living will) becomes terminally ill with no hope of
recovery, the doctor will set up a hospital medical board after informing the
patient and/or his guardians.

What is the difference between the negative and positive conception of liberty?

Solution
Negative liberty Positive liberty

1. It defines and defends the area of an i. It defines the area of society where an
individual’s life where no external individual can be free with some constraints
authority can interfere. made by the society and the government.

2. It is not concerned with the ii. It is concerned with the enabling conditions
conditions of the society. of the society.

3. It is concerned with explaining the iii. It is concerned with explaining the idea of
idea of ‘freedom from’. ‘freedom to’.

4. This area comes into personal iv. This area comes into social domain of the
domain of the individual. individual.

5. More negative liberty leads to more v. More positive liberty checks excess of
freedom. freedom to an individual, which could be an
obstruction for social stability.

rticle 21A of the Indian Constitution

Human progress depends on education. Any nation’s future is dependent on the
quality of its educational system. Even while the members of the Constituent
Assembly understood the value of universal education, they were unable to
guarantee it as a fundamental right because of a lack of funding, despite the
fact that it was listed in the Directive Principles of State Policy. The Indian
judicial system attempted to include the right to education as a component of
the Right to Life in the 1993 case of Unni Krishnan v. State of Andhra Pradesh.
Through a constitutional amendment that was passed in 2002, the Indian
Parliament also gave its future inhabitants the right to an education.

On several occasions, both the judiciary and the Parliament had the chance to
clearly explain the nature of this newly created fundamental right, particularly in
light of the possibility that it might conflict with the fundamental right of
minorities that already exists to create and run educational institutions of their
choosing. There were a few crucial questions that needed to be addressed.
Whether the Supreme Court’s decision in the afore-mentioned case to include
the Right to Education in the purview of Article 21 and the insertion of this new
right alongside the Right to Life has given the former any precedence over other
related rights, remains an unanswered question.

Right to Education under the Indian

Constitution
The Indian Constitution has several provisions and schedules that protect
children’s interests in education. There are various articles and guiding concepts
in the Indian Constitution that protect and mandate the provision of education
for its citizens. The Sergeant Commission, the last British education
commission, predicted that universal education would be available in 40 years,
or by 1985. The 42nd Amendment of 1976 to the Indian Constitution, made
education a concurrent issue in order to expand basic education facilities,
especially in underdeveloped areas thereby making education accessible to
every individual by means of delivering it freely and mandatorily with priority
for primary education.

Initially left out of the Constitution’s list of fundamental rights, the Right to
Education was added as a Directive Principle under Article 45, which mandated
the State to make efforts to offer all children free and compulsory education
until the age of 14. This was done within the first ten years of the Constitution’s
coming into effect. Article 45’s directive covers all levels of education up to and
including the age of 14 and is not just limited to elementary school.

As a result, this age group of children should have had free access to education.
The Supreme Court implied the ‘Right to Education’ during this time from other
constitutional provisions such as Articles 21, 24, 30(1), 39(e), and 39(f), in its
decision-making concerning issues over the Right to Education. The Court has
time and again highlighted that the state can fulfil its moral commitment under
Article 45 to “provide for free and compulsory education for children” through
government-run and aided schools, and that Article 45 does not mandate that
this obligation be fulfilled at the expense of minority populations.

On August 4, 2009, the Indian Parliament passed the Right to Education Act,
2009, popularly known as the RTE Act, 2009. Article 21A of the Indian
Constitution explains the necessity of free and mandatory education for children
aged 6 to 14 in India. With the implementation of this Act on April 1, 2010,
India joined the list of 135 nations that have made education a fundamental
right for all children. It establishes basic standards for primary schools, outlaws
the operation of unrecognised institutions, and opposes admissions fees and kid
interviews during admission to government-aided schools.

Through routine surveys, the Right to Education Act keeps an eye on every
neighbourhood and identifies children who should have access to education but
have not been provided with it. In India, there have long been significant
educational issues at the national level as well as in the states. The RTE of 2009
outlines the tasks and obligations of the Central Government, each state, and
all local governments in order to fulfil any gaps in the nation’s educational
system.

Right of Children to Free and Compulsory

Education Act, 2009
To give effect to Article 21A of the Constitution, the Right of Children to Free
and Compulsory Education Act, 2009, was passed. It said that the state would
provide free and mandatory education to children between the ages of 6 and 14
years old, incorporating the right to primary education. In 2008, six years after
the Indian Constitution underwent an amendment (86th Amendment, 2002),
the Cabinet approved the Right to Education Bill. The Cabinet adopted the
measure on July 2, 2009. The bill was approved by both the Rajya Sabha and
Lok Sabha on July 20, 2009, and August 4, 2009, respectively. The Act was
notified as legislation on September 3, 2009, after receiving the President’s
approval. With the exception of the state of Jammu and Kashmir, the law took
effect on 1st April 2010 throughout the nation. The Act provides for the
following:

1. Every child between the ages of 6 and 14 has a fundamental right to

free, obligatory education in schools up to the completion of
elementary education.
2. Children who have either quit school or have not shown up at any
school will be enrolled in the schools, and no school will be able to
refuse to accept them.
3. In order to admit pupils from economically disadvantaged and weaker
sections of society to class one, private and independent educational
institutions must set aside 25% of their seats.
4. A child’s age must be established for admission to a school based on a
certificate issued in accordance with the terms of the birth, death,
and Marriage Registration Act of 1856 or on the basis of any other
documents that may be required.
5. The Act’s implementation will be supervised by the state commission
and the National Commission for the Protection of Children’s
Rights (NCPCR).
6. School management committees of 75% of parents and guardians are
required to oversee all schools, with the exception of private unaided
institutions.
7. The mother tongue of the child will be used as the instruction medium,
and a thorough and ongoing system of performance evaluation will be
used.
8. A number of teachers for classes 1st to 5th:

 Admitted children (up to 60): The number of teachers required is 2.

 Children between (61-90): The number of teachers required is 3.
 Children between (91-120): 4 teachers are required.
 Above 150 children: 5 teachers + 1 head teacher.

9. The ratio of financial responsibilities between the Central Government

and each state will be 55:45. For the northeastern state, it will be
90:10.
10. Building:

 At least one classroom for every teacher and one office-cum-store-

cum-head teacher’s room.
 Separate toilets for girls and boys.
 A kitchen where a mid-day meal is prepared.
 One playground.
 Safe and adequate drinking water facility.

11. A minimum number of working days:

 200 working days for 1-5th class.

  220 working days for 6-8th class.

12. Instructional hours:

 800 Instructional hours per academic year for the 1st-5th class.
 1000 Instructional hours per academic year for the 6th-8th class.

13. The Act mandates the presence of libraries in each school,

providing newspapers, magazines & books.
14. According to the RTE Act, children who live within “the prescribed
area or borders of neighbourhood” should have access to primary
schools:

 Primary school within 1km.

 Elementary schools within 3km.

15. The Act establishes the disabled population’s Right to Education up

to the age of 18.
16. The Act prohibits both physical and psychological abuse, procedures
for screening youngsters who are being admitted, capitation costs,
teachers providing private instruction and operating schools without
authorisation.

Features of the Right to Education Act, 2009

Compulsory and free education for all

In India, the government is required to provide free and required primary
education to each and every child, up to class 8, in a neighbourhood school
within a 1 km radius. No child is required to pay any fees or other costs that
would keep them from pursuing and finishing their elementary education. In
order to lessen the financial burden of school expenses, free education also
involves the distribution of textbooks, uniforms, stationery items, and special
educational materials for students with disabilities.

Special provisions for special cases

According to the RTE Act, a child who is not enrolled in school must be accepted
into a class for their age and get additional instruction to help them catch up to
age-appropriate learning levels.
The benchmark mandate
The RTE Act establishes guidelines and requirements for classrooms, boys’ and
girls’ restrooms, drinking water facilities, the number of school days, and
working hours for teachers, among other things. This collection of requirements
must be followed by each and every elementary school in India (primary +
middle school) in order to uphold the minimum standards required under the
Right to Education Act.

Quantity and quality of teachers

The RTE Act ensures that the necessary pupil-teacher ratio is maintained in
every school without any urban-rural imbalance at all, allowing for the sensible
deployment of teachers. Additionally, it requires the hiring of teachers who have
the necessary academic and professional training.

Zero tolerance against discrimination and harassment

The RTE Act of 2009 outlaws all forms of corporal punishment and psychological
abuse, as well as discrimination based on gender, caste, class, and religion, as
well as capitation fees, private tutoring facilities, and the operation of
unrecognized schools. Less than 10% of schools nationwide, according to
the Right to Education (RTE) Forum’s Stocktaking Report, 2014 adhere to all of
the requirements of the Right to Education Act. Even if the Right to Education
Act of 2009 brought about a lot of advances, worries about the privatisation of
education still exist. Inequalities in education have persisted for a long time in
India. Although the Right to Education Act represents the first step toward an
inclusive education system in India, its successful implementation still presents
difficulties.

Improving learning outcomes to minimise detention

No child is allowed to be held back or expelled from school until Class 8, as per
the provisions of the Right to Education Act. In order to guarantee learning
results that are acceptable for each grade in schools, the Continuous
Comprehensive Evaluation (CCE) system was created in 2009 under the Right
to Education Act. This approach was established in order to examine every area
of the child while they were in school, allowing gaps to be found and addressed
as soon as possible.

Monitoring compliance with RTE norms

School Management Committees (SMCs) are essential for enhancing
governance and participatory democracy in primary education. All schools
covered under the Right to Education Act of 2009 are required to form a School
Management Committee made up of the principal, a local elected official,
parents, and other community members. The committees have been given the
authority to establish a school development plan and monitor how the schools
are operating.

Ensuring all-round development of children

The Right to Education Act of 2009 calls for the creation of a curriculum that
would guarantee each child’s overall development. Develop a child’s knowledge,
abilities, and potential as a person.

Right to Education Act is justiciable

The Right to Education Act of 2009 is legally enforceable, and it is supported by
a Grievance Redressal (GR) framework that enables anyone to take legal action
against violations of its provisions. Oxfam India and JOSH filed a complaint with
the Central Information Commission (CIC) in 2011 under Section 4 of the Right
to Information Act, 2005 to ensure that all schools adhere to this requirement.
All public authorities are required to share information with individuals about
how they operate under Section 4 of the RTI Act, which is a proactive disclosure
section. Since public authorities include schools, Section 4 compliance was
required.

Creating inclusive spaces for all

All private schools must set aside 25% of their seats for children from socially
and economically disadvantaged areas, according to the Right to Education Act
of 2009. The Act’s clause promoting social inclusion aims to create a more
equitable and just society.

Article 22 in Constitution of India

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 Court has reported
before the expiration of the said period of three months that there is in its opinion sufficient cause
for such detention:Provided that nothing in this sub-clause shall authorise the detention of any
person beyond the maximum period prescribed by any law made by Parliament under sub-clause
(b) of clause (7); or(b)such person is detained in accordance with the provisions of any law made
by Parliament under sub-clauses (a) and (b) of clause (7).(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).Editorial Comment - Article 22 of the Indian Constitution provides certain
safeguards regarding arrests and detentions. It aims to protect the rights and liberties of
individuals who are arrested or detained by the authorities.

Protection against Arrest and Detention - Article 22 safeguards individuals against arbitrary
arrest and detention. It ensures that no person can be arrested or detained without being informed
of the grounds for such arrest or detention.

Right to be Presented before Magistrate - Article 22 guarantees that an arrested person must be
produced before the nearest magistrate within 24 hours of their arrest. This provision aims to
prevent unlawful and prolonged detention without proper judicial oversight.

Right to Consult a Legal Practitioner - Article 22 grants the right to an arrested person to consult
and be defended by a legal practitioner of their choice. This right helps ensure that individuals
have proper legal representation during the process of arrest and detention.

Communication of Grounds for Arrest - An arrested person must be informed of the grounds for
their arrest and detention. They have the right to know the reasons behind their arrest, enabling
them to effectively exercise their legal rights.

Preventive Detention - Article 22 also addresses the issue of preventive detention, which allows
the authorities to detain individuals for preventive reasons, such as the maintenance of public
order or national security. It imposes certain additional safeguards, such as the requirement for
the grounds of detention to be communicated and the provision for a review by an advisory board.
It's important to note that Article 22 provides certain exceptions during times of emergency, such
as during a proclamation of Emergency by the President of India. In such circumstances, certain
restrictions on the rights and safeguards under Article 22 may be imposed.

In the case, D.K. Basu v. State of West Bengal (1997), A Public Interest Litigation was filed by
Dr Dilip Kumar Basu related to a case of Custodial violence. The Supreme Court laid down strict
guidelines related to custodial violence and deaths. These guidelines are to be followed in all cases
of arrest and detention until legal provisions are made for the safeguard of a person in custody.

Right against Exploitation (Articles 23 & 24) - Indian

Polity

Right against Exploitation

There are two articles of the Constitution which guarantee the right against
exploitation. They are described below:

Article 23 – Prohibition of traffic in human beings and forced

labour
Article 23(1): Traffic in human beings and the beggar and other similar forms of
forced labour are prohibited and any contravention of this provision shall be
an offence punishable in accordance with the law.

Article 23(2): Nothing in this article shall prevent the State from imposing
compulsory service for public purposes, and in imposing such service the State
shall not make any discrimination on grounds only of religion, race, caste or
class or any of them.

 Exploitation implies the misuse of others’ services by force and/or labour without
payment.
 There were many marginalized communities in India who were forced to engage in
manual and agricultural labour without any payment.
 Labour without payment is known as begar.
 Article 23 forbids any form of exploitation.
  Also, one cannot be forced to engage in labour against his/her will even if
remuneration is given.
 Forced labour is forbidden by the Constitution. It is considered forced labour if the
less-than-minimum wage is paid.
 This article also makes ‘bonded labour’ unconstitutional.
 Bonded labour is when a person is forced to offer services out of a loan/debt that
cannot be repaid.
 The Constitution makes coercion of any kind unconstitutional. Thus, forcing landless
persons into labour and forcing helpless women into prostitution is
unconstitutional.
 The Article also makes trafficking unconstitutional.
 Trafficking involves the buying and selling of men and women for illegal and
immoral activities.
 Even though the Constitution does not explicitly ban ‘slavery’, Article 23 has a wide
scope because of the inclusion of the terms ‘forced labour’ and ‘traffic’.
 Article 23 protects citizens not only against the State but also from private
citizens.
 The State is obliged to protect citizens from these evils by taking punitive action
against perpetrators of these acts (which are considered crimes), and also take
positive actions to abolish these evils from society.
 Under Article 35 of the Constitution, the Parliament is authorized to enact laws to
punish acts prohibited by Article 23.
 Clause 2 implies that compulsory services for public purposes (such as
conscription to the armed forces) are not unconstitutional.
 Laws passed by the Parliament in pursuance of Article 23:
 Suppression of Immoral Traffic in Women and Girls Act, 1956
 Bonded Labour System (Abolition) Act, 1976

Article 24 – Prohibition of employment of children in factories,

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

 This Article forbids the employment of children below the age of 14 in any hazardous
industry or factories or mines, without exception.
  However, the employment of children in non-hazardous work is allowed.

Laws that were passed in pursuance of Article 24 in India.

The Factories Act, 1948

This was the first act passed after independence to set a minimum age limit
for the employment of children in factories. The Act set a minimum age of 14
years. In 1954, this Act was amended to provide that children below the age of
17 could not be employed at night.

The Mines Act of 1952

This Act prohibits the employment of people under the age of 18 years in mines.

The Child Labour (Prohibition and Regulation) Act, 1986

This was a landmark law enacted to curb the menace of child labour prevalent
in India. It described where and how children could be employed and where
and how this was forbidden. This Act designates a child as a person who has
not completed his/her 14th year of age. The 1986 Act prohibits the employment
of children in 13 occupations and 57 processes.

Child Labour (Prohibition & Regulation) Amendment Act, 2016

This Act completely forbids the employment of children below 14 years of age.
It also bans the employment of people between the ages of 14 and 18 in
hazardous occupations and processes. Punishments to violators of this law
were made stricter by this amendment act. This Act allows children to be
employed in certain family occupations and also as artists.

Child Labour (Prohibition and Regulation) Amendment Rules, 2017

The government notified the above Rules in 2017 to provide a broad and
specific framework for prevention, prohibition, rescue, and rehabilitation of
child and adolescent workers. The Rules clarified on issues concerning the
employment of family enterprises and also provides safeguards for artists in
that the working hours and conditions are specified.