Chapters :

  • Procedure Established by law and Due Process of Law



RIGHTS OF PRISONERS: Article 21 is available to the convicted persons in jails as well. Their personal liberties can be curtailed only based on the procedures established by law. Rights available to the prisoners include
Right to free legal aid and right to appeal Right against illegal detention
Right to speedy trial Right to fair trial
Right to bail (Anticipatory bail is a statutory right, that does not fall under article 21) Right against handcuffing
Right against custodial violence Right against solitary confinement
Right to write and publish books Right against bar fetters
Right against public hanging Right against delayed execution
Procedure Established by law and Due Process of Law: The Procedure established by law means that a law enacted by the legislature is valid if proper procedures were followed in its enactment. On the other hand, due process of law means that a law is valid only if it is fair, just and not arbitrary. That is, under the due process of law, a law can be nullified if the law does not uphold the values such as equity, justice, fairness, etc. Thus, due process of law checks for both the procedures followed and the fairness of the laws enacted. The Supreme Court, in numerous judgements, has followed the doctrine of due process of law, though not explicitly. While following the doctrine of procedure established by law, it has emphasised on the inevitability of fairness and justness of the laws, while curtailing the personal liberty of citizens. ARTICLE 21A: RIGHT TO EDUCATION One of the landmark amendments done to the constitution, the 86th Constitutional amendment Act, 2002, inserted an article 21A to the constitution, that made the State responsible for providing free and compulsory elementary education to all the children in the age group of 6-14 years without any discrimination. This made the right to education of the children in the prescribed category, justiciable. Besides free and compulsory education, the amendment insisted on the need for quality education in formal institutions. The amendment specified thenecessity of enacting an act of Parliament to prescribe the mode of operation of this right under article 21A. Accordingly, the Parliament enacted the Right of Children to Free and Compulsory Education Act or Right to Education Act (RTE) in 2009.
1.         The RTE Act is not applicable To Private Minority Educational Institutions. 2.         The RTE Act is applicable to private non-minority educational institutions. These institutions are required to reserve 25% of seats(Money will be reimbursed by the State) to the poor children. 3.         The RTE Act is not applicable to the state of Jammu and Kashmir. 4.         Separate act ensuring free and compulsory education to children with disability till the age of 18 years was passed by the Parliament. 5.         The RTE Act enables the admission of children in schools without any certificates, thus enabling the admission of orphan children as well.
ARTICLE 22: RIGHT AGAINST ARREST AND DETENTION This article consists of two parts that deal with the rights of arrested and detained persons. Clause 1: It says that the arrested persons have the right to be informed about the grounds of their arrest and also to consult or be defended by a legal practitioner. Note: In case of arrests without a warrant, the police officer must inform the arrested persons of the grounds of arrest. In case of arrests under a warrant, the particulars of the warrant have to be informed to the arrested persons. Clause 2: It says that every arrested person must be produced before the nearest magistrate within a duration of 24 hours excluding the journey time. Note: In case of exceeding the prescribed time duration, the police officer will be held guilty of illegal detention. Clause 3: It says that nothing in Clause (1) and (2) shall apply to
  • Enemy aliens
  • Persons who are arrested or detained under preventive detention laws
Clause 4: It says that no person held under the preventive detention shall be detained for more than a period of three months. Note: For extending the duration of preventive detention beyond the prescribed limit of three months, the opinion of an advisory board composed of High Court Judges Or Persons qualified to be appointed as High court judges is mandatory.
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