Theme: Citizen Rights & Constitution

Right to Bail

You have a right to bail. This right can be directly exercised in the case of bailable offences. For non-bailable offences, this right is dependent on the discretion of the court.   

The rationale of giving bail is that, if there is no substantial risk of the accused fleeing, then there should be no reason why he should be imprisoned. Granting bail usually comes at an early stage. 

The Court takes into account your gender, health and age while granting you bail. The Court may grant you bail more easily if you fall in the category of the following sets of persons:

  1. Women
  2. Children below the age of sixteen
  3. Sick and Infirm people

 

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.(( Mohan Jain v. State of Karnataka, (1992) 3 SCC 666.)) 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.(( Section 3(1), The Right of Children to Free and Compulsory Education Act, 2009.))

Parents of such children do not have to pay any fee, charges or expenses to help their children receive elementary education.(( Section 3(2) The Right of Children to Free and Compulsory Education Act, 2009.)) 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.(( Section 3, The Mid-day Meal Rules, 2015.))

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).(( Rule 6, The Right of Children to Free and Compulsory Education Rules, 2010.))

However, the law does not restrict the education of children to neighbourhood schools.(( The Right of Children to Free and Compulsory Education Act, 2009.)) 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.(( Section 8, The Right of Children to Free and Compulsory Education Act, 2009.)) This, however, does not include admissions under the 25% reserved admissions for disadvantaged groups.(( Section 12(1)(c), The Right of Children to Free and Compulsory Education Act, 2009.)) 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.(( 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)) 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.(( 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))

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.(( Section 3(2), The Right of Children to Free and Compulsory Education Act, 2009.)) 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.(( Section 13(1), The Right of Children to Free and Compulsory Education Act, 2009.))

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.(( Section 13, The Right of Children to Free and Compulsory Education Act, 2009.))The 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.(( Section 13, The Right of Children to Free and Compulsory Education Act, 2009.))

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. [↩]