Theme: Citizen Rights & Constitution

Do I legally have to admit my child in a school?

Yes, the right to education law puts a duty on parents or guardians to admit their child or ward to elementary neighbourhood school.(( Section 10, The Right of Children to Free and Compulsory Education Act, 2009.))  However, the aim of the law is to put a moral obligation on the parents to send children to school and not to compel them to do the same. Consequently, no penal provisions exist for contravention of this obligation.(( The Right of Children to Free and Compulsory Education Act, 2009.))

Guide on the Rights of Transgender Persons in India

What laws are discussed in this Guide?

This Guide discusses the general provisions in the Constitution of India, the Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020.

 

Why was the law enacted?

Transgender Persons are not treated as an equal part of society due to lack of social acceptance. Transgender Persons are usually abandoned and

have fewer means for survival and avenues for gaining livelihoods. Parents tend to feel that it is dishonorable to have a transgender person as it will bring shame on the family. Another issue is that of marriage. This Act aims to solve the above issues and more.

 

What is the objective of the law?

The Transgender Persons (Protection of Rights) Act, 2019 (“the law”) has been drafted and formulated to protect the rights of Transgender Persons in India, and provide for their welfare. This law is applicable to the whole of India.

Who is a Transgender Person?

As per the law, a Transgender Person is a person whose gender does not match with the gender assigned to that person at the time of birth, and includes:

  • Trans-man
  • Trans-woman
  • Person with inter-sex variations
  • Gender-queer persons
  • Persons with socio-cultural identities such as kinner, hijra, aravani and jogta

What is the legal status of a Transgender Person in India?

In India, Transgender Persons are legally recognised as the ‘third gender’ or ‘other’ gender.

They have the same status as that of any male or female person. They also have the same rights, including the right to exercise their fundamental rights under the Constitution of India. The Supreme Court in 2014 officially declared ‘transgender’ as the ‘third gender’ in India via the landmark judgment NALSA V. Union of India & Ors (2014)

The court held that all transgender persons are entitled to fundamental rights under Article 14 (Equality), Article 15 (Non Disrimination), Article 16 (Equal Opportunity in Public Employment), Article 19(1)(a) (Right to Free Speech) and Article 21 (Right to Life) of the Indian Constitution. In 2020, the parliament legally recognized ‘transgender’ as an official gender in India.

GENDER IDENTITIY OF A TRANSGENDER PERSON

What is gender identity?

‘Gender identity’ refers to a person’s internal sense of being of a particular gender. This choice is made when a person understands their internal and individual experience of their body, bodily appearance, speech, mannerisms, etc. If a person does not identify themselves with the gender that they are assigned during birth, they can choose to identify with some other gender.

What are the medical options to change your gender identity?

The process for recognizing, accepting and expressing your gender identity is known as transitioning. It can be achieved through the following medical options:

  • Hormone Therapy: This is a form of medicine which helps to increase or decrease a person’s sex characteristics.
  • Gender Affirmative Therapy (GAT): This is a set of procedures, ranging from psychological counselling to sex reassignment surgeries, which aim to change a person’s appearance so that it will conform more strongly with the self-identified gender. For example, Rita was identified to be female at birth, but while growing up, identifies themselves as male, and may undergo GAT to masculinize their appearance through breast removal surgery, etc.
  • Corrective surgery/intersex surgery: These procedures modify sex characteristics and genitals when they are anomalous, meaning when there is no clear distinction between male and female genitals. For example, a child, Nakul, is born with both male and female genitalia, and decides that he self-identifies and feels that his gender is male, and thus undergoes corrective surgery to align more strongly to the male gender.
It is not mandatory for a person to undergo any physical change/medical procedure to choose their gender identity. The laws in India recognise a person’s physiological right to choose their gender identity based on what they are feeling. The person’s physical characteristics do not affect the gender identity that they have chosen.

Does the law permit a person to choose their gender identity?

Yes! The law does permit a person to choose their gender identity.

In the landmark case of National Legal Service Authority v. Union of India and Ors.(2014), the Supreme Court identified the rights of the transgender community as a “third gender.” The Central and the State Governments were also asked to formulate and regulate social welfare schemes and other necessary provisions for the protection of transgender rights.

Case Study: In the case of Anjali Guru Sanjana Jaan v. State of Maharashtra & Ors. (2021), the Bombay High Court observed that for the Village Panchayat elections, the petitioner identified herself as a female while she was a transgender and her application was rejected. The court held that the petitioner had the right to self-identify her gender and accepted her application.

Note: Central and State Governments too have to take steps in recognizing third gender persons as a “socially and educationally backward class of citizens” who are entitled to reservations in educational institutions and public employment. The Government also has a duty to make provisions for the legal recognition of “third gender” in all documents. You can read the Nyaaya explainer on Identification proof for LGBTQ+ for more information.

 

Can you officially record a person’s gender identity?

The Transgender Law explains how you can officially record your gender as a transgender person:

Step 1- Make an application to the District Magistrate for issuing a certificate of identity as a Transgender Person.  For a minor, the application should be made by the parent or legal guardian of the child. If the parent/legal guardian does not make the application, then the person can apply after becoming a major (i.e., once they are 18 years of age or above). The procedure may be different for each district, so it is advisable to check with your district for particular requirements.

Step 2- The District Magistrate will issue a certificate of identity against the submitted application.

Step 3- The gender of the Transgender Person will be recorded in the official records maintained by the District Magistrate’s office.

Step 4- If a Transgender Person undergoes any medical intervention or procedure to affirm their gender after the issuance of the identity card, then the new gender will be communicated by the transgender person to the District Magistrate along with a certificate from the Medical Superintendent or Chief Medical Officer.

Step 5- The District Magistrate will issue a revised certificate.

An example of the application form and the affidavit is given in the sample forms section below.

What are the documents required for getting an Identity Card issued?

Given below are some of the documents you can use to get an Identity Card issued to you:

 

S. No Name of the official document
1. Birth Certificate
2. Caste/Tribe Certificate
3. Class 10 (Secondary school) certificate or Class 12 (Senior Secondary School) certificate or SSLC
4. Election( Photo) Identity Card
5. Aadhaar Card
6. Permanent Account Number (PAN)
7. Driving Licence
8. BPL ration card
9. Post Office Bank/Bank Passbook with photo
10. Passport
11. Kisan Passbook
12. Marriage certificate
13. Electricity/water/gas connection bill

 

Note: This is a tentative list of documents. You can reconfirm these as well as ask for more options at your nearest local District Magistrate’s office.

What happens once a person officially records their gender identity as a transgender person?  

Once a person officially records their gender identity, they will receive an official Certificate of Identity as a Transgender Person. The certificate will serve as a  proof of their identity as a Transgender Person. The said person’s gender will be recorded as ‘Transgender’ or ‘Third Gender’ on all official documents.

Case Study: A writ petition was filed seeking measures by the State Government for the distribution of food ration, medicines and access to medical treatment to the transgender community in Kerala. The Court observed in the case of Kabeer C Alias Aneera Kabeer v. State of Kerala(2020), that necessary steps should be taken to ensure issuance of gender identity card and the ration card to transgender persons.

 

LAWS PROTECTING TRANSGENDER PERSONS

Does the Indian Constitution protect the Transgender Persons? 

Yes. Some of the important provisions in the Constitution protecting transgender rights include:

  • Right to Equality (Article 14) : No one can deny any “person” equality before the law or equal protection of law. Using the term “person” shows that no discrimination is done on the basis of  sex or gender identity.
‘Transgender Persons’ cannot be subjected to unfair treatment in educational institutions or at the time of employment. They also have the right to equal health services, and the right to use public property or the right to freely move in the country.

 

  • Prohibition of discrimination on various grounds, including gender (Article 15) : Prohibits any sort of discrimination on the basis of race, religion, caste or sex or any of them. This implies that discrimination or ill-treatment of Transgender Persons infringes their basic fundamental right. In the case of Mx. Alia SK v. The State of West Bengal and Ors.(2019), the court held that Transgender persons have the right to seek admission into universities. The judgement is important because it signified the role of courts in ensuring that special accommodations and adjustments are made to include transgender people in the process of public university applications and admission process where none exist.
  • Freedom of speech and expression (Article 19) : This right grants every citizen the freedom of speech and expression. This includes the freedom to express your gender identity publicly.
  • Right to life and personal liberty (Article 21): Article 21 which deals with the protection of life and personal liberty states that no person shall be deprived of his life and personal liberty except according to the procedure of law. This right states that every individual including a transgender person has the right to life and personal liberty. The transgender person being a citizen of India should have the full right to protect their life and personal liberty.
In the case of Nangai v. Superintendent of Police  (2014) , the Madras High Court recognized that compelling a person to undergo a medical examination of gender violates Article 21. It upheld a person’s right to self-identify their own gender.

Are there any reservations for transgender persons?

Yes, under the Transgender Persons (Protection of Rights) Rules, 2020, Central and State governments can classify them as ‘Other Backward Classes’ for the purposes of vertical reservation.

What other laws protect the rights of a transgender person in India?

  • The Transgender Persons (Protection of Rights) Act, 2019 & Rules: This Act was passed in the year 2020 and it provides Transgender People several rights. The rules act supplementary to the Act.
  • SC/ST (Prevention of Atrocities) Act, 1989:  If an individual belongs to the Scheduled Caste or Scheduled Tribe community, this law protects that  person from any sort of caste/tribe based discrimination.
In the case of Mx Sumana Pramanik v. Union of India (2020), the court reiterated the importance of not just reservations for the transgender community, but also age relaxations and fee concessions for them in examinations. Wherever these provisions for reservations have been made, the Government has to enforce it.

 

  • NALSA Judgment: In the landmark judgment National Legal Services Authority v. Union of India and Ors. in 2014, the Supreme Court identified the rights of the transgender community as a “third gender”. This case paved the way for transgender persons with the right to choose their gender identity and live their life with dignity.
In the case of G. Nagalakshmi v. Director General of Police (2014), the Madras High Court observed that in the absence of any special law, any person has the liberty to choose their sexual or gender identity, and upheld the petitioner’s right to choose their own gender.
  • Puttaswamy Case: In the landmark judgment Puttuswamy v. Union of India (2017),  with regard to the right to privacy, the Supreme Court observed that there is a constitutional right to privacy inherent in the right to life, equality and fundamental freedoms. This includes the right to have intimate relations of one’s choice and the right to sexual orientation and gender identity.
  • Decriminalisation of Section 377 of IPC: The Supreme Court in the case  of Navtej Singh Johar v. Union of India(2016) held that LGBTQ+ people in India are entitled to all constitutional rights, including the liberties protected by the Constitution of India.
  • Indian Penal Code, 1860:  Any offence committed by a Transgender Person shall be punished as per the provisions of the Indian Penal Code. The case of Mrs. X v. State of Uttarakhand  (2019) affirmed the NALSA Judgement and stated that a denial of the right to self-identify one’s gender would deny the right to life and liberty. It is especially significant since it is one of the first cases that affirmed the right to self-determination based on the “psyche” of the individual even in the context of the criminal law.
Many people face violence in various forms such as physical, sexual, mental or emotional violence due to their sexual orientation or identity. It is important to identify this violence and reach out for help or to take action to stop the violence. Read the Nyaaya explainer on Violence Based on Gender Identity and Sexual Orientation to understand the violence faced by people based on their sexual orientation or gender identity.
  • Code of Criminal Procedure, 1973: A transgender person is subject to the same criminal procedural law of arrests, bail, summons, investigation etc.
The National Crime Records Bureau publishes an Annual Prison Statistics India report which includes  the composition of  prisoners. In Karan Tripathi v. NCRB, WRP (Criminal) No. 9596 of (2020), the Delhi High Court stated that now NCRB intends to include transgender in the gender classification of prisoners from PSI-2020.

What can be done if Transgender rights are violated?

The National Council for Transgender Persons was set up under the Transgender Persons (Protection of Rights) Act, 2019 for addressing grievances.

Furthermore, violations of Part III rights of Transgender persons can be remedied by approaching the Supreme Court or High Courts under Articles 32 or 226. In addition, other rights guaranteed under various laws are protected by Article 226.

Moreover, violation of rights to the ‘third gender’ constitutes human rights abuse. The State and National Human Right commissions can be approached by the victim.

What is the procedure to file complaints against discrimination of Transgender Persons?

For those facing discrimination during the course of employment, either in public or private sector, do approach the designated complaint officer set up under the the Transgender Persons (Protection of Rights) Act, 2019[1].

For filing a grievance with the National Transgender Council, create an account online in the National Transgender portal (https://transgender.dosje.gov.in/). On successful registration, click on the ‘Grievance tab’ on your dashboard. Detailed guidelines for the same can be found here – (https://transgender.dosje.gov.in/docs/Manual.pdf)

If I decide to approach the Court directly, how can I get legal aid services?

You can approach your nearest District Legal Services Authority for availing legal aid. If your annual income is less than the ceiling limit prescribed for each state, then you can enjoy these services for free.

AUTHORITIES UNDER TRANSGENDER LAW

What is the National Council for Transgender Persons (NCTP)?

National Council for Transgender Persons is a statutory body established on 21st August, 2020 by the Ministry of Social Justice and Empowerment. It advises the government on all policy matters affecting transgender, intersex persons and people with diverse GIESC (Gender Identity/Expression and Sex Characteristics) identities. The council is composed of-

  • The Union Minister in-charge of the Ministry of Social Justice and Empowerment, Chairperson, ex officio;
  • The Minister of the State, in-charge of the Ministry of Social Justice and Empowerment in the Government, Vice-chairperson, ex-officio;
  • Various other representatives from different fields.
The Council was formed on 21st August, 2020 with its headquarters in Delhi under the Ministry of Social Justice and Empowerment. The Council is headed by Mr. Thawar Chand Gehlot. Its regional members are Laxmi Narayan Tripathi, Gopi Shankar Maduari, Zainab P Rifai, Shayamchand Kokchitbomb, and Meera Parida. The expert members are Reshma Prasad, Aryan Pasha, Vihaan Peethamber and C. Ganeshdas.

What is the role of the National Council for Transgender Persons?

The role of the National Council for Transgender Persons comprises of:

  • Redressal of the grievances of Transgender Persons.
  • To advise, monitor and evaluate the impact of policies made by the Central Government relating to Transgender Persons.
  • To oversee the work of various Governmental and Non-Governmental organizations which are dealing with matters relating to Transgender Persons.

PERSONAL RIGHTS OF A TRANSGENDER PERSON

Does the law protect a transgender person from abuse faced from their family?

  • Section 18 of the Transgender Persons (Protection of Rights) Act – This law protects all transgender persons against any form of abuse such as physical, verbal, emotional, sexual, mental and economic abuse by imposing the punishment of imprisonment for a term which shall not be less than six months but which may extend to two years and with fine. Unfortunately, it does not prescribe any separate mechanism to lodge a complaint against any of the abovementioned kinds of abuse.

Domestic Violence Act, 2005 – The Domestic Violence Act protects all women including Transgender Women (regardless of their Certificate of Identity) against any kind of abuse by any family member. You can read more in the Nyaaya explainer on Domestic Violence.

What can be done if the family of a transgender individual asks them to move out of their residence due to their gender identity?

As per the Transgender Persons (Protection of Rights) Act, it is illegal for any family to discriminate against the child or ask the child to move out of the house. All transgender people have the right to:

  • Reside in their family home
  • Make use of all the facilities in their family home without any discrimination.

If any parent or member of the immediate family is unable to take care of a Transgender person, the competent court shall by an order direct such person to be placed in a rehabilitation centre. (Section 12(3) of the Act)

Can anyone estrange or ask a transgender person to move out of their home or community?

The Transgender Persons (Protection of Rights) Act makes it illegal for anyone to separate a transgender person from their family or ask them to move out of their home, village or community. If anyone tries to commit this offence, then they shall be punished with imprisonment ranging from 6 months to 2 years.

As a transgender, do I have legally protected safe places to stay?

Yes, while transgender persons enjoy the ‘right to residence’ in their own homes, the Government has set up ‘Garima Grehs’ to help those without homes.

Are there any conditions to be met to reside in ‘Garima Grehs’?

The following conditions are to be fulfilled:

  •   Should possess certificate issued through the National Portal for Transgender Persons and preferably living below the Poverty Line
  •   Abandoned, aged above 18 years and below 60 years
  •   Not engaged in sex work and beggary
  •   Unemployed and not engaged in productive commercial activities

How to apply for a certificate on the National Portal for Transgender persons?

First, create an account online in the National Transgender portal (https://transgender.dosje.gov.in/). On successful registration, click on the ‘Apply online’ tab on your dashboard. Fill in the personal particulars and other details in the online form. Upload the affidavit declaring gender. This portal helps a transgender person to obtain an identity card without a physical interface.  Detailed guidelines for the same can be found here – (https://transgender.dosje.gov.in/docs/Manual.pdf)

MARRIAGE & DIVORCE

Can a transgender person get married in India? If so, under what law?

A transgender person can get married in India either under personal religious laws (for instance the Hindu Marriage Act or Indian Christian Marriage Act) or under the Special Marriage Act, 1954. In the case of Arun Kumar v. Inspector General (Madras) (2019), it was observed by the  Madras High Court that a marriage solemnized between a male and a transgender women, both professing Hindu religion, was considered to be a valid marriage in the eyes of the law.

Case Study: In the case of Chinmayjee Jena v. State of Odisha (2020), the Odisha High Court delivered the first judicial decision in India that explicitly recognizes the right of trans persons to enter into a live-in relationship with the partner of their choice, regardless of the “gender” of the partner.

Can a transgender person file for divorce from their spouse? 

If they are legally married, then they are eligible to file for divorce under the law under which they had gotten married initially. In case of live-in relationships, there is no legal requirement to get a divorce.

What are legal safeguards for a Transgender Woman facing abuse/harassment from their spouse/live-in partner? 

Any person identifying themselves as a Transgender Woman and facing any form of abuse such as physical, emotional, economic or sexual abuse, is eligible for protection under the Domestic Violence Act. Read this Nyaaya explainer on Live-In relationships to understand more about protections under this law.

PROTECTION AGAINST SEXUAL HARASSMENT

Does the law protect Transgender Persons against sexual harassment?

  • Transgender Persons (Protection of Rights) Act – Under Section 18 of this Act, it is illegal for any person to sexually abuse any transgender person.
  • Indian Penal Code – All transgender women can seek protection under all the sections of the Indian Penal Code protecting women from sexual abuse. This was mentioned by the High Court of Delhi in the case of Anamika v. Union of India(2020).
  • Prevention of Sexual Harassment at the Workplace – If any transgender person faces sexual harassment at their school/college, then it will be considered as Sexual Harassment at the Workplace. Any transgender student is eligible to file a complaint with the Internal Complaints Committee of the said school/university.

Does the POSH Act provide any mechanism for the protection of the rights of the Transgender person against sexual harassment at workplaces?

In accordance with the requirements under the POSH Act, (The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013), organisations shall put in place adequate grievance redressal mechanisms for transgender individuals to deal with harassment complaints, while keeping the identity of the complainant anonymous.

PUBLIC & POLITICAL RIGHTS OF A TRANSGENDER PERSON

What are the duties of workplaces or establishments with regard to the welfare of the Transgender Persons?

Employers cannot discriminate on any issue relating to the employment of a Transgender Person. All establishments should comply with the provisions of the Transgender Law.  They have the duty to designate a person as a complaint officer to deal with the complaints relating to the violation of this Act.

Does a Transgender Person have the right to use Public Transport?

Yes, all Transgender Persons have the right to use all forms of public spaces and transports intended for general use of the public. The Transgender Persons (Protection of Rights) Act makes it illegal for any person to prohibit the usage of public transport or space by a Transgender Person.

Can a transgender person vote?

Yes, just like any other gender, a Transgender Person who is a major (above 18 years of age) is also entitled to vote in India. The voter registration form also has the option of ‘other’ under the category of gender. Along with the right to vote, the Transgender Persons (Protection of Rights) Act provides that there shall be no discrimination in holding any public office, which means that a Transgender Person can contest in elections as well.

RESOURCES

Sample Form

Application for Transgender Certificate of Identity

Contact Information

  • Toll free number of Sahaay Helpline, aided by an international NGO and supported by Humsafar Trust, is functional 24×7 – 1800-2000-113.
  • Any Transgender Person can connect with experts on the Helpline Number 8882133897 regarding their  mental health. This helpline will be functional from Monday to Saturday between 11 AM to 1 PM and 3 PM to 5 PM. On this helpline, counselling services will be provided by professional Psychologists for their mental health.
  • The Queerythm helpline-  9745545559. It is available in English, Malayalam and Tamil.

References

Glossary Terms

  • Trans-man: A transgender person who has transitioned from female to male.
  • Trans-woman: A trangender person who transitioned from male to female.
  • Person with inter-sex variations: People born with ‘intersex variations’ have characteristics that fail to fit the typical definition of a female or male body. Intersex variation can be physical, hormonal or chromosome-related.
  • Gender-queer persons: Non-binary or gender-queer is an umbrella term for gender identities that are neither male nor female‍—‌identities that are outside the gender binary.
  • Gender affirmative Hormone Therapy: Gender affirmation hormone therapy is medicine prescribed to help a person gain the outward characteristics that match their gender identity.

Offline RTI Application

How can the guide help you?

 

The Nyaaya Guide on Applying Offline under RTI provides applicants with the steps to take when seeking information under the Right to Information Act, 2005. This guide summarises the processes involved in filing an RTI application offline, appeals against certain authorities’ decisions, as well as complaint mechanisms for any grievances.

 

What are the laws discussed in the guide?

The Nyaaya Guide on Offline RTI Applications explains the Right to Information Act, 2005 and the Right to Information Rules, 2012 and the Right to Information (Regulation of Fee and Cost) Rules, 2005.

Resources

Contact Information

If you want to file a second appeal or a separate complaint for rejection of application to receive certain information or you do not receive information in the prescribed time period, you can file an appeal or complaint with the Central Information Commission in the contact details given below.
Address: August Kranti Bhavan, Bhikaji Cama Place, New Delhi & Old JNU Campus,
New Delhi – 110 067.
Phone: 26183053
Fax: 26186536.

 

State Information Commission

If you face any difficulty/ query with respect to filing an RTI application, you can contact your state’s Information Commission. The helpline contact details for each state can be found here.

 

Checklists

 

  1. Check whether you are eligible to file an RTI depending on your citizenship and residency
    status.
  2. Check whether the information is exempted from being disclosed for any reason whatsoever.
  3. Check that the particulars of the information to be sought, your name and postal address are clearly mentioned in the RTI application.
  4. Check whether you have addressed the RTI application to the public authority that is connected to the information sought.
  5. If you require any assistance, check that the concerned PIO offers the assistance while making the application.
  6. Check whether you fall under the category of Below Poverty Line. If yes, you don’t have to pay application fees. If not, you have to pay a fee of Rs. 10 with your application.
  7. Check the prescribed mode of payment as given in the Centre and State Rules.
  8. If the RTI application is rejected, check whether the reasons for rejection are provided along with relevant information about filing an appeal against such rejection.
  9. Check that you adhere to the timeline for the first and second appeal, if made.
  10. Check that the first appeal is made to the senior officer of the concerned PIO and that the second appeal is made to the concerned Central or State PIO.

 

 

Guide to Lawful Protesting

How can this guide help you?

The Guide to Lawful Protesting helps you understand your right to protest as a citizen and empowers you with the knowledge of how to carry out lawful protests, steps to follow to take necessary permissions from the police or other relevant authorities, and your rights as a protestor.

read more

What are the laws being discussed in this guide?

To discuss the relevant laws in place under which you need to acquire permissions to carry out protests, it is important to note that ‘law and order’ is a subject covered under the State list in the Constitution of India, 1950. This means that every State has the power to make its own laws and rules that govern law

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RIGHT TO PROTEST

As a citizen of India, your right to protest flows from two fundamental rights guaranteed to you under Article 19 of the Constitution of India, 1950 – freedom of speech and expression and the right to assemble in a public place without arms. However, it is important to know that this right is not an unconditional right and comes with certain limitations and requirements. This means that you can exercise your right to protest by way of a peaceful public gathering provided you take all necessary permissions from authorities and maintain public order while doing so.

read more

HOW TO GET PERMISSIONS FOR PROTESTS

Where to apply?

You need to get a No Objection Certificate (NOC) from the police station within whose jurisdiction you have planned the public gathering for the protest. Some police departments may have a specific form or permission that

Details to include in the application

This application for the NOC or any specific permissions for the protest must have the following details:

  • Your name, address, and contact number, along with details of other organizers of the protest.

How to submit the application

Your application can be in a simple letter format with the above mentioned contents if the police department in your city does not have a specific form to be filled.

PERMISSIONS FOR PROTESTS WHEN DENIED OR REVOKED

Can permission for a peaceful protest be denied?

Yes, police authorities can deny permissions for protests. While you have a right to protest, you must know that this is not an unconditional right. There are certain reasonable restrictions2 imposed by the Constitution of India, 1950 on this right under which the police can deny your request. The police can deny your

Can permission for an ongoing protest be revoked?

Yes, permissions for ongoing peaceful gatherings or protests can be revoked by imposing a prohibitory order under Section 144 of the Code of Criminal Procedure, 1973. It is often colloquially referred to as imposing a curfew in a particular area.

If permission is denied, can you appeal?

If your application for holding a public gathering or a rally for a protest gets denied by the Senior Inspector of the police station or the Deputy Commissioner of Police(DCP), you can make an appeal to the Additional Commissioner of Police(ACP).

PROHIBITORY ORDERS OR CURFEWS

A prohibitory order is an order passed by either the District Magistrate, Sub-Divisional Magistrate or Executive Magistrate empowered by the State when immediate prevention is required and when such orders or direction would prevent or is likely to prevent:

  • Any obstruction, annoyance or injury to any person or a danger to human life
  • Health, safety, or disturbance of public tranquility
  • Riot or an affray

A Section 144 order is directed either to individuals or a group of persons residing in a

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What happened in the Ramlila Maidan Case?

In 2011, there were mass protests in the country against the rising corruption. One of the groups protesting was Baba Ramdev and his supporters at the Ramlila Maidan in New Delhi. On the midnight of 4-5 June 2011, a prohibitory order under Sec 144 was imposed and protestors were forcibly evicted.

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THINGS TO NOTE DURING PROTESTS

Key steps to follow

Always remember to follow the steps given below during any protest:

  • Carry permissions with you: Please make sure that you and all other organisers of the protests have copies of the permissions granted to you for the protests along with any other permissions for use of loudspeakers, tents, etc.
  • Maintain public order: As an organiser or participant of a protest, it is your fundamental duty to maintain public order and peacefully voice your opinions. Your right to exercise your fundamental right to speech and expression should not violate the rights of other citizens not participating in the protest to access public places or services.

read more

In 2020, the Supreme Court delivered a judgement in the context of the Shaheen Bagh protests opposing the Citizenship (Amendment) Act, 2019. In its judgement, the Court said that while citizens have the right to peaceful protest, demonstrations which exhibit dissent should take place only in designated places. The Court also said that public ways and public spaces cannot be permanently occupied by protesters, and the right to protest must be balanced with the right of commuters to conveniently access public roads and pathways.(( Amit Sahni v. Commissioner of Police and Ors. CA No. 3283 of 2020, Supreme Court of India))

 

If you are a woman, please note that your arrest can only be carried out by a woman police official. It is also important to note that women cannot be arrested between sunset and sunrise, i.e. 6 PM and 6 AM. In the exceptional circumstance when the woman has to be arrested at night, the woman police officer has to take permission in writing from the local Judicial Magistrate. To know more about the law on arrest, please read Nyaaya explainer on Arrest.

What are your rights if you are arrested during a protest?

During the course of a protest, if you, as an organiser or a participant, are arrested, you have the following rights:

  • Right to inform a family member or friend of your arrest
  • Right to access a lawyer. If you can’t afford a lawyer, you can request the services of the District Legal Services Authority.
  • Right to be informed about the charges being levied against you that are recorded in the arrest memo
  • Right to read and examine the arrest memo before signing it. You must also be given a copy of this arrest memo.

read more

RESOURCES

Emergency Numbers:

Police Contact Numbers

  • Delhi Police Contact Numbers, given here
  • Mumbai Police Contact Numbers given here
  • Bengaluru City Police Contact Numbers given here
  • Kolkata Police Contact Numbers given here

CHECKLIST

  1. Check if there is a curfew or any prohibitory orders like Section 144 in the area you want to protest in
  2. Apply for an No Objection Certificate (NOC) from either the local police or the Deputy Commissioner of Police(DCP) office
  3. Mention the correct details in the NOC application including duration of protest, reasons for protest etc.
  4. Obtain separate permission for loudspeakers and tents for the protest
  5. Make arrangements for first aid, water etc. during protest
  6. Ensure that the protest is peaceful and without violence

Fundamental Rights

Fundamental rights are rights which are considered fundamental or essential for the existence of people and which a nation guarantees its citizens. Watch our videos to understand your fundamental rights better.

Love Laws

Young people in India have many questions about their rights in the social context of love, relationships and marriage and where they stand in relation to social norms. Check out our video explainers to learn more about how the law protects your rights to love the person of your choice.

What is Article 19?

The Constitution of India, 1950 guarantees certain ‘fundamental rights’ to both citizens and non-citizens.  These rights, placed under Part III of the Constitution (i.e. Articles 14 to 32), are a set of basic human rights that protect people against unreasonable actions by the government. Among these provisions is Article 19, which guarantees protection of certain rights regarding freedom of the individual. Article 19 does two things – first, it confers six basic freedoms to all Indian citizens, and second, it specifies the circumstances under which the government can limit these freedoms.

What does Article 19, clause (1) of the Constitution say? 

Article 19, clause (1) guarantees six rights to all the citizens of India. The rights are listed under sub-clauses (a) to (e) and sub-clause (g) of clause (1) of Article 19. Together these rights promote the ideal of liberty envisaged in the Constitution. The rights guaranteed under Article 19(1) are not absolutely free from limitations. They are subject to a corresponding set of reasonable restrictions given under Articles 19(2) to 19(6).

Voting and Elections Rights of SC/ST

It is a crime to interfere with the voting rights of members of SCs or STs. If you do any of the following, you will be punished with imprisonment anywhere between 6 months and 5 years along with a fine:

  • Force them to vote in a certain way.
  • Stop them from standing for elections.
  • Stop them from proposing a candidate, or seconding the nomination of another SC/ST candidate.
  • Punish them for voting a certain way.

It is also a crime to interfere with the work of an SC/ST member who is a Panchayat member or holds office in a municipality. Force or intimidation cannot be used to prevent such a person from doing their work.

Police Arrest With Warrant

An arrest is when a person is physically detained by the police. No person can be detained by the police without being informed of the reasons and the basis in law for their arrest. 

Generally, the police need a warrant to arrest someone. Crimes for which a warrant is required are called non-cognizable offences. On receiving information of a non-cognizable crime, the police must take permission from the Magistrate to arrest someone. This permission from the Magistrate is known as a warrant. 

What are constitutional remedies?

The Constitution of India, 1950 grants certain rights to the citizens of India. If these rights are violated, citizens should also have the right to enforce them or remedy the violation. The Constitution provides for certain remedies that people can use to enforce their fundamental rights. A person can file a writ petition before the Supreme Court or concerned High Court to enforce their fundamental rights.1 The petition can be for the issue of any of the five types of constitutional remedies. The right to apply to the Supreme Court for constitutional remedies is also a fundamental right. 

  1. Articles 32(1) and 226,  Constitution of India, 1950. [↩]

Request to Obtain Information

The RTI application can be in either English, Hindi or the official language of the area. The application should be in writing. It can be submitted personally, through post, e-mail or through online portals. For public authorities under the Central Government, there is an online forum where RTI applications can be made directly. You can also access step-by-step guidelines on how to send an application through the online portal.

If someone cannot make the request because they are illiterate or unable to write, the Public Information Office (PIO) has a duty to help the person so that they can take down the request and put it in writing. If the application is sent to the wrong public authority by mistake, the PIO who receives this application has a duty to transfer it within five days. 

Free and Compulsory Education

The Right to Education is a fundamental right guaranteed under Article 21A of the Constitution of India, 1950.1 The law guaranteeing the right to education is known as the Right of Children to Free and Compulsory Education Act, 2009. Every child between the age of 6 to 14 years, that belongs to disadvantaged groups including children who are differently-abled, children belonging to scheduled caste or scheduled tribes etc. as well as children belonging to all income groups shall have the right to free and compulsory education in the neighbourhood school till the completion of their elementary education which is from Class 1 to Class 8.2

Parents of such children do not have to pay any fee, charges or expenses to help their children receive elementary education.3 Every child who is enrolled in school for elementary education will also be provided with a nutritious meal, free of charge on all days except school holidays.4

  1. Mohini Jain v. State of Karnataka, (1992) 3 SCC 666. [↩]
  2. Section 3(1), The Right of Children to Free and Compulsory Education Act, 2009. [↩]
  3. Section 3(2) The Right of Children to Free and Compulsory Education Act, 2009. [↩]
  4. Section 3, The Mid-day Meal Rules, 2015. [↩]

What are the Freedoms guaranteed under Article 19?

Article 19, clause (1) guarantees six fundamental rights to all citizens. These rights are:

(a) The right to freedom of speech and expression;

(b) The right to assemble peaceably and without arms;

(c)The right to form associations or unions;

(d)The right to move freely throughout the territory of India;

(e)The right to reside and settle in any part of the territory of India; and

(g)The right to practise any profession, or to carry on any occupation, trade, or business.

Why is clause (f) of Article 19 missing? What did it provide for?

In 1950, when the Constitution came into force, Article 19(1) guaranteed seven rights. The seventh right, contained in Article 19(1)(f), was the fundamental right to property. This right contained citizens’ right to buy, own and sell property. 

However, through the 44th Constitutional Amendment in 1978, the right to property ceased to be a fundamental right. Article 19(1)(f) was deleted from the Constitution. At the same time, Article 300A was inserted, which recognises the right to property as a constitutional right. It guarantees that no one can be deprived of their property except as per the procedure laid down in law. 

So, if someone breaches your right to property, you should approach the High Court under Article 226 of the Constitution of India. To know more about constitutional remedies, check out our explainer.

What are the different types of constitutional remedies?

There are five kinds of constitutional remedies available.1 These are:

  1. Habeas Corpus 

The term ‘habeas corpus’ literally means ‘produce the body’. In this context, it refers to a direction from a court to bring a person before the court. If a person is illegally restrained and deprived of their liberty, a writ petition for habeas corpus can be filed to ask the court to secure their release. The court can issue the writ of habeas corpus to any public authority having a person unlawfully in their custody and order the authority to bring the person before the court. In this manner, the court inquires into the circumstances of any person’s detention and can give the necessary judgement against unlawful restraint.(( Kanu Sanyal v. District Magistrate, Darjeeling, 1973 AIR 2684.)) The court can also issue the writ of habeas corpus in cases of illegal inhuman treatment of prisoners.(( Sunil Batra v. Delhi Administration, 1980 AIR 1579.)) The application for habeas corpus can be filed by the imprisoned/detained person or by anyone else who is not an absolute stranger to them.

For example, if a prisoner is being ill-treated in prison, they can file a habeas corpus petition against such treatment.  

 

2. Mandamus 

The court issues a writ of mandamus to order an authority to perform their public duty as required by law.(( State of Mysore & Anr. v. K.N. Chandrasekhara & Anr., 1965 AIR (SC) 532.)) To get this remedy, it is necessary to show that the public authority has a mandatory legal duty and the petitioner has a legal right to enforce its performance.(( Rai Shivendra Bahadur v. Governing Body of Nalanda College, AIR 1962 SC 1210.)) However, people cannot file for a writ of mandamus against the President of India or the Governor of a State(( Article 361, Constitution of India, 1950.)), or officers in legislatures.2 Before applying for mandamus, the petitioner should have first approached the authority with a distinct demand which the authority refuses to enforce.(( Saraswati Industrial Syndicate Ltd. v. Union of India, 1975 AIR 460.)) 

For example, if, despite repeated complaints, a Municipal Corporation refuses to perform its legal duty of supplying water to an area, a person living in that area can file a mandamus petition to make the Corporation perform its duty. 

 

3. Certiorari  

The writ of certiorari is applicable when someone with legal authority and a judicial duty to make decisions affecting the rights of people, exceeds their legal authority. The court can issue this remedy to cancel the order of any lower judicial authority which has exceeded its legal powers and made a decision despite not having the power to do so.(( Province of Bombay v. Kusaldas S. Advani & Ors., 1950 AIR 222.))

For example, if an Industrial Tribunal delivers a judgement on a non-industrial dispute without having the authority to do so, an aggrieved person can approach the concerned High Court/Supreme Court with a petition for certiorari to cancel the Tribunal’s decision.    

 

4. Prohibition 

The court can issue the writ of prohibition to order any lower court/tribunal to stop legal proceedings on a certain matter.(( East India Commercial Company Ltd. v. The Collector of Customs, 1962 AIR 1893.)) This remedy is used to restrain a lower judicial authority from exceeding its legal authority and to confine lower courts/tribunals within their judicial boundaries. Prohibition can also be used in case a lower judicial authority has not obeyed the rules of natural justice i.e. if the authority shows bias or does not hear out both parties.(( S. Govinda Menon v. Union of India, 1967 AIR 1274.))

For example, if an Industrial Tribunal takes up a non-industrial dispute without having the authority to judge the dispute, an aggrieved person can approach the concerned High Court/Supreme Court with a petition for prohibition to stop the ongoing legal proceedings before the Tribunal.     

 

5. Quo Warranto

The writ of quo warranto is a remedy that allows the court to ask any person who holds a public office to prove their right to hold the office. In case they don’t have the right to hold the public position, they will be removed from that office by judicial order. This remedy controls the executive from making illegal appointments to a public office and protects citizens from people who illegally hold public office depriving citizens of their rights. To claim quo warranto, a petitioner has to show the court that the office is a public office and that the person holding it has no legal authority to hold the office. This will lead to an inquiry on whether their appointment has been made legally.(( The University of Mysore v. Govinda Rao, 1965 AIR 41.))

For example, if someone feels that the Speaker of a Legislative Assembly does not have the qualifications to hold this public office, they can approach the  Court to issue a writ of quo warranto to inquire about the appointment.

 

  1. Article 32(2), Constitution of India, 1950. [↩]
  2. Articles 122(2) and 212(2), Constitution of India, 1950. [↩]

Land and Property belonging to SC/ST

It is illegal to take over any land that is owned or controlled by, or allotted to any SC/ST member as well as forcing an SC/ST member to leave her home unless it is done legally. 

The takeover of the property is considered illegal if it is done

  • without the agreement of the victim, or
  • by threatening her or someone connected to her, or
  • by making false records.

It is also a crime to similarly illegally deprive an SC/ST member of his property or to prevent him from exercising his rights over any land. This includes:

  • Blocking an SC/ST member from accessing any forest rights under the Forest Rights Act.
  • Blocking rights to any water source or irrigation source.
  • Destroying or taking away crops.

You can face imprisonment of a term of 6 months to 7 years for using fire or bombs to damage homes, religious places and/or property belonging to SC/ST members. You can report such crimes.

RTI Application Fees

There is an application fee that varies for the Centre and for States. For public authorities under the Central Government, this is Rs. 10. For public authorities under the State Governments, please check rules applicable to each state here.

In addition to the application fees, there is also a fee for the information to be delivered (depending on format/number of pages). For the fees applicable to public authorities under the Central Government, please check the RTI Rules, 2012. For the fees applicable to public authorities under the state, please check the individual state rules.

The PIO can ask you to pay more fees for the information but will, however, have to justify the higher fee with proper calculations. The time period between the notice for increased fees and its payment will be excluded from the 30 day period within which you were originally supposed to have received your information

 

Admission Process into Schools

All children between the ages of 6 to 14 years can get education from schools, free of cost,  from the 1st standard (first class) till the 8th standard (eighth class).

Approach the Neighbourhood Schools

Children can attend classes in neighbourhood schools. These neighbourhood schools are schools established within a walking distance of:

  • one kilometre from the child’s neighbourhood (if the child is in class I to V) and
  • three kilometres (if the child is in class VI to VIII).1

However, the law does not restrict the education of children to neighbourhood schools.2 The child is free to enrol in any school despite the distance from the child’s neighbourhood to receive an education free of cost. However, it is important to note that a child can receive education only from those schools established, owned (e.g. state established schools like Kendriya Vidyalaya, Aarohi schools in Haryana etc.), controlled or substantially funded directly or indirectly by the government or local authority. So if a child is admitted to schools other than those given above, their parents cannot make a claim for reimbursement of expenses for the child’s education.3 This, however, does not include admissions under the 25% reserved admissions for disadvantaged groups.4 The admission process for schools covered by the Right to Education varies from state to state. However, certain practices are common. For admitting a child to the school, the following are the common practices across states:

Filling Admission Forms

Parents are required to fill a form provided by the requisite state governments. These forms are available on the government portal as every state has a separate portal for admissions. Some examples are Punjab, Maharashtra etc. You can also approach neighbourhood schools to obtain the form.5 The form includes basic information like the family details, address etc. It also provides for choosing preferred schools in case of unplanned admissions. A maximum of five schools can be provided as preferences.6

Providing Identification Documents

Certain documents are mandatory to be submitted. These documents include the child’s ID as proof of age (may entail a birth certificate, Anganwadi record, Aadhar card etc.) and parents’ IDs. Forms also enlist the provision of documents such as the family’s ration card, income certificate, caste certificate as well as relevant certificates highlighting the special needs of children. Such a filled form may ordinarily be submitted to the neighbourhood school. Since certain states have made the entire process online, so the application may be carried on the government portal.

School Fees and Expenses

Children can get admission to schools without paying any fees or expenses.7 The right to education law in India prohibits invocation of any fees prior to the admission of a child. No school is allowed to charge any capitation fee which refers to any kind of donation or payment other than the school fee.8

No Screening Procedure for admission 

Moreover, schools cannot subject the child or the parents to any form of screening procedure before admission.  A screening procedure may involve any test or interview of the child or the parent for the purposes of admission to the school.9The school should randomly select the children and employ an open lottery method for filling up vacant seats. This can be done in the form of writing the names of the children on paper slips and then randomly picking them out of a container to ensure transparency. Schools may be fined up to Rs.25,000 for the first contravention of this provision and may extend to Rs.50,000 for any subsequent contraventions.9

  1. Rule 6, The Right of Children to Free and Compulsory Education Rules, 2010. [↩]
  2. The Right of Children to Free and Compulsory Education Act, 2009. [↩]
  3. Section 8, The Right of Children to Free and Compulsory Education Act, 2009. [↩]
  4. Section 12(1)(c), The Right of Children to Free and Compulsory Education Act, 2009. [↩]
  5. Guidelines for Parents w.r.t. Admissions in Entry Classes i.e. Nursery / KG /Class-I in Government Sarvodaya Vidyalayas for the Academic Session 2020-21, Government of Delhi NCT, available at, http://edudel.nic.in/upload/upload_2019_20/249_251_dt_27022020.pdf [↩]
  6. Application Form For Admission In Govt./Govt. Aided School Directorate Of Education, Govt. Of Nct Of Delhi, available at, http://edudel.nic.in/upload/upload_2019_20/admission_form_28022019.PDF [↩]
  7. Section 3(2), The Right of Children to Free and Compulsory Education Act, 2009. [↩]
  8. Section 13(1), The Right of Children to Free and Compulsory Education Act, 2009. [↩]
  9. Section 13, The Right of Children to Free and Compulsory Education Act, 2009. [↩] [↩]

Who enjoys the Rights guaranteed under Article 19 of the Constitution?

Article 19 rights are restricted to citizens alone. These rights are not available to anyone who is not a citizen of India1 or who cannot be a citizen of India.2 In other words, these rights are not available to a foreign national or someone who has given up their citizenship of India or whose Indian citizenship has been terminated. 

Registered companies and societies are not considered citizens under Article 19. However, if a state action limits the rights of a company and as a result, the rights of the shareholders of that company are infringed, the shareholders enjoy the rights under Article 19 as citizens of India. So, the fundamental rights of citizens are not lost when they form a company or society.3

  1. Hans Muller v. Superintendent. Presidency Jail, Calcutta, AIR 1955 SC 367 [↩]
  2. Dharam Dutt v. Union of India, (2004) 1 SCC 712 [↩]
  3. Bennett Coleman and Co. v. Union of India, (1972) 2 SCC 788 [↩]

Who can apply for constitutional remedies?

Any aggrieved person whose fundamental rights have been violated can avail constitutional remedies by filing a writ petition before the Supreme Court or the High Court.(( Articles 32 and 226, Constitution of India, 1950.)) 

For habeas corpus(( Sunil Batra v. Delhi Administration, 1980 AIR 1579.)) and mandamus(( Bandhua Mukti Morcha v. Union of India, 1984 AIR 802.)), people other than the aggrieved person can also file a petition to seek a particular remedy. 

It is important to understand that not all fundamental rights are available to all people. For instance, the right to equal opportunity in employment(( Article 16, Constitution of India, 1950.)) and freedom of speech and expression1 are available only to citizens. On the other hand, fundamental rights such as the right to life(( Article 21, Constitution of India, 1950.)) and the right to be treated equally before the law2 are available to all people, irrespective of whether they are citizens or non-citizens. A person can file a writ petition seeking constitutional remedies to enforce any fundamental rights which are available to them.

  1. Article 19(1)(a), Constitution of India, 1950. [↩]
  2.  Article 14, Constitution of India, 1950. [↩]

Cruel and Degrading Atrocities against SC/ST

Any of the following crimes committed against members of SC/ST are referred to as atrocities in law.  The punishment for these acts is imprisonment between 6 months and 5 years, along with a fine.

  • Hurting or boycotting an SC/ST member
  • Force-feeding an SC/ST member with any disgusting substance that is not fit for humans to eat, such as cow dung, human excreta etc.
  • Dumping any disgusting substances (such as the bodies of dead animals, or excreta) inside or at the gate of a place where SC/ST members live, or in a neighbourhood of an SC/ST member, but only if it is done to insult or annoy her in some way.
  • Making an SC/ST member wear a garland of chappals, or making them walk around naked or semi-naked.
  • Forcing an SC/ST member to do anything which is insulting to the dignity of a human being, such as making them undress, forcing them to shave his head or his moustache or forcing them to paint his face.
  • Making an SC/ST member do bonded labour. The exception will be if the government makes some kind of public service compulsory – in that case, it will not be a crime.
  • Forcing an SC/ST member to carry or dispose of a human or animal dead body.
  • Forcing an SC/ST member to do manual scavenging, or employing an SC/ST member to do manual scavenging.
  • Insulting and humiliating an SC/ST member on purpose, if it is done in a place visible to the public.
  • Abusing an SC/ST member using her caste name if it is done in a place visible to the public.
  • Damage any object, such as a statue or picture of Dr Ambedkar, which is important to members of SCs/STs.
  • Say or publish anything that encourages hatred of SC/ST communities.
  • Say or write anything that insults any late person who is important to the SC/ST community, such as a leader.
  • Spoiling any water source that is usually used by SC/ST members.
  • Blocking an SC/ST member from a public place where she has a right to go.
  • Blocking an SC/ST member from:
    • Using any common public area or resource such as water bodies, taps, wells, cremation grounds etc.
    • Riding a horse or a vehicle or carrying out a procession.
    • Entering into a religious place or participating in a religious ceremony, that is open to the public.
    • Entering a public place like a school, hospital or cinema hall.
    • Carrying on any business or job.
  • Accusing an SC/ST member of practising witchcraft, and hurting them physically or mentally.
  • Making a threat, or actually excluding them socially or economically.

Processing of an RTI Application

The PIO can take 30 days to process an RTI application and provide the information that is requested. If the application is made to an APIO, the information must be provided in 35 days time. If the information has some serious consequences on a person’s life and is needed urgently, the PIO should give the information within 48 hours.

Under this law, the PIO can refuse to answer certain applications. Please read Section 8 and 9 of this Act to figure out which information would be generally exempted from this Act.

If the information is not given within 30/35 days, you have to assume that the PIO/APIO denied your request for information. Further, the PIO cannot charge anything other than the application fee for the information. 

Different Categories of Schools

The schools given below have the responsibility to make provisions for the free and compulsory elementary education of children.

Schools established, owned or controlled by the government or a local authority

Such schools have a responsibility to provide free and compulsory education to all children admitted. For example, schools run by the New Delhi Municipality Council or the Delhi Cantonment Board.

Aided schools

Aided Schools refer to privately established schools receiving full or part of their funding by the government or local authority in the form of aid or grant.1 Free and compulsory education should be provided to a minimum of 25% of the children admitted and to such proportion of children as its annual recurring aid or grants so received bears to its annual recurring expenses.

Specified category schools and unaided schools not receiving any kind of aid or grants from the government

A school belonging to a specified category refers to schools such as Kendriya Vidyalaya, Navodaya Vidyalaya, Sainik Schools or other schools that have a distinct character and are specified by notification by the appropriate government. Apart from special schools even unaided schools that do not receive any grants or funds from the Government are covered under the law2 In such schools, children shall be admitted in class I, to the extent of 25% of the strength of the class, till the completion of elementary education. This proportion comprises children belonging to weaker sections and disadvantaged groups such as those belonging to economically weaker sections of society.3

The above-mentioned strength of 25% of the class also applies to pre-school education, if any of these schools provide for the same.

Minority Schools

Minority schools are schools run by members of a minority group. Minorities are religious groups other than Hindus, such as Christians, Muslims and Parsis. They are also groups in a state who don’t speak the main or official language of the state, such as Tamilians in Haryana or Gujaratis in Karnataka.

The Constitution of India allows minorities to run schools in their own way so that they can protect their culture and language. This means that minority schools don’t have to follow all the rules which apply to other schools and do not fall within the ambit of the Right to Education Act.

  1. Section 12(1)(b), The Right of Children to Free and Compulsory Education Act, 2009. [↩]
  2. Section 2(p), The Right of Children to Free and Compulsory Education Act, 2009. [↩]
  3. Section 12(1)(c), The Right of Children to Free and Compulsory Education Act, 2009. [↩]

Who has the Duty to Uphold the Rights under Article 19?

The duty to uphold Article 19 rights of citizens lies with the State. If a state action causes breach of any of these rights, it can be challenged in an appropriate court of law. You can read more about how to challenge such breaches in our explainer on Constitutional Remedies. 

Broadly, State includes not only the Legislature (which enacts law), Executive (which formulates policy and is responsible for its execution), and the Judiciary (which adjudicates disputes), but also includes local bodies (such as Panchayats and Municipal authorities) as well as other authorities (which includes agencies or instrumentalities of the State or bodies or institutions which discharge public functions of the government).1

  1. Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 [↩]

Who are the authorities for seeking constitutional remedies?

A person can file a writ petition before the Supreme Court of India or the concerned High Court of that state to enforce their fundamental rights.

The Supreme Court has the power to provide constitutional remedies to any person whose fundamental rights need to be protected. The right to seek constitutional remedies before the Supreme Court is by itself a fundamental right of any person. However, the right to seek relief with the Supreme Court can be suspended during a period of emergency.(( Article 32, Constitution of India, 1950.)) 

High Courts also have the power to provide constitutional remedies. Apart from fundamental rights, the High Courts also have the power to issue constitutional remedies for other purposes as well, such as protecting other legal rights.1

  1. Article 226(1), Constitution of India, 1950.))  However, the right to seek constitutional remedies before any High Court is not a fundamental right. There are territorial restrictions and a writ petition for constitutional remedies should be filed only to the concerned High Court which has authority in the area where the legal violation occurs.(( Article 226(2), Constitution of India, 1950. [↩]