INDIAN CONSTITUTION LAW
UNIT - I
1.1 MEANING AND DEFINITION OF PREAMBLE
The Preamble declares "We the people of India having solemnly resolved India into a Sovereign, Socialist, and Secular Democratic Republic" and to secure to all its citizens.
1. Justice:
It means Social, Economic and Political justice.
2. Liberty of thought:
It means expression, belief, faith and worship.
3. Equality of status and of opportunity and to promote them all.
4. Fraternity assuring the dignity of the individual and the unity integrity of the nation.
The heading of the above preamble is the constitution of India; a question may arise as to what is the meaning of the term constitution and what is the sanction behind the constitution? The constitution is the supreme law of the land ordained and established by the people.
In India it is the constitution, which is supreme and parliament as well as the state legislature must not only act within the limits of their respective legislative spheres as demarcated in the three lists occurring in the seventh schedule to the constitution.
Preamble of our constitution begins with the words "we the people of India" and ends with the words 'Do hereby adopt, enact and give to ourselves this constitution". The words "We the people" signify not only the people of India who existed at the commencement of the co0nstituion but the people of India as they exist today, because these words denote that the people are continual and eternal entity.
1.2 Interpreting the Constitution:
The preamble is the key to open the mind of the makers. But it does not mean that the preamble can override the express provisions of the Act.
In Berubari's Case
In this case the Supreme Court held that the preamble was not a part of the constitution and therefore it could never be regarded as a source of any substantive powers. Such powers are expressly granted in the body of constitution.
In Keshavananda Bharati's Case
In this case the Supreme Court rejected the views of Berubari's case and held that the preamble is the part of the constitution. Though in any ordinary statute not much importance is attached to the preamble, all importance has to be attached to the preamble in a constitutional statute.
Purposes of the Preamble
The preamble serves the following purposes.
1. It indicates the source from which the constitution comes, viz, the people of India.
2. It contains the enacting clause which brings into force the constitution.
3. It declares the grant rights and freedoms which the people of India intended to secure to all citizens and the basic type of government and polity which was to be established.
Can preamble be amended under Article 368?
This question was raised for the first time before the Supreme Court in the hi9storical case of Keshavananda Bharati v/s State of kerala. In that case argued that by virtue of the amending power in Art. 368 even the preamble can be amended. And preamble was a part of the constitution it could be amended like any other provisions of the constitution.
Preamble creates an implied limitation on the power of amendment. The preamble contains the basic elements or the fundamental features of our constitution. Consequently, amending power cannot be used so as to destroy or damage these basic features mentioned in the preamble and it can not be amended as it is not a part of the constitution. Finally the Supreme Court held that the preamble is a part of the constitution.
1.3 Citizenship
Meaning of Citizenship
The population of state is divided into two classes those are:
1. Citizens
2. Aliens
A citizen of a State is a person who enjoys full civil and political rights. Citizens are different from aliens who do not enjoy all these rights. Citizenship carries with it certain advantages conferred by the constitution. Aliens do not enjoy these advantages. The following fundamental rights are available only to citizens:
1. The right not to discriminate against any citizen on grounds of religion, race, caste, sex or place of birth.
2. The right to equality of opportunity in the matter of public employment
3. The right to six freedoms enumerated in Article 19 of the constitution.
4. Cultural and educational rights conferred by articles 29 and 30.
5. There are certain offices under the constitution which can be occupied by citizens only.
Ex: Office of the President, vice-President, Judges of Supreme Court etc.
6. The right to vote for election to the house of the people and the legislative assemblies of states is available to the citizens only and only they can become members of the Union and the state legislatures.
Acquisition of Citizenship
Article 5 to 8 of the constitution says the following ways of acquisition of citizenship.
1. Citizenship by domicile:
Constitutional Article.5 says that a person is entitled to citizenship by domicile if he fulfills the following two conditions.
a) He must, at the commencement of the constitution, have his domicile in the territory of India,
b) Such person must fulfill any of the three conditions.
1. He was born in India
2. Either of his parents was born in India.
3. He must have been ordinarily resident in the territory of India for not less than five years immediately before the commencement of the constitution.
Classes of domicile
There are two main classes of domicile: those are
1. Domicile of origin
2. Domicile of choice
Art. 5 of the constitution recognize the notion of state domicile.
Mohammad Raza v/s state of Bombay
In the above case the appellant came to India in 1938. He went on pilgrimage to Iraq in 1945. On return, he was registered as a foreigner and several times his stay in India was extended. In 1957 his request to extend the stay period was refused. He contended that he must be regarded as a citizen of India under Art. 5, but his appeal was dismissed. The court held that though he was original resident, he did not acquire Indian citizenship because he did not have a domicile in India.
2. Citizenship by Descent
Art. 4 provide that a person born outside India shall be citizen of India by descent.
(A) On or after 26th Jan., 1950 but before 10th of Dec. 1992 if his father is a citizen of India at the time of his birth,
(B) On or after 10th day of December. 1992 if either if his parents are citizen of India at the time of his birth.
3. Citizenship by naturalization
A foreigner can acquire Indian citizenship, on applicable for naturalization to the government of India.
4. Citizenship by Marriage
A foreigner, who marries an Indian, becomes the citizen of India. They have to apply for citizenship of India.
Ex: Sonia Gandhi w/o Rajeev Gandhi, Usha w/o K.R. Narayanan etc.
5. Citizenship by incorporation of territory
Whenever, the new territory is incorporated into the Union of India, the persons of such territory, shall become the citizen of India automatically.
Ex: Sikkim, Goa etc.
Overseas Citizenship
Registration of overseas citizenship
When the application is made in this behalf, the central government may, subject to conditions and restrictions including the condition of reciprocity as may be prescribed, register any person as an overseas citizen of India if
a. that person is of Indian origin, of full age and capacity who is a citizen of a specified country.
b. that person is of full age and capacity who has obtained the citizenship of a specified county on or after the commencement of the citizenship Act, 2003 and who was a citizen of India immediately before such commencement.
c. that person is a minor of a person mentioned in clause A and B.
The person registered as an overseas citizen of India, shall be an overseas citizen of India as from the date on which he is registered and no person has been deprived of his citizenship under this Act shall be registered as an overseas citizen of India except by an order of the central government.
Termination of citizenship
(i) by renunciation
An Indian citizen of full age and capacity can renounce his Indian citizenship by making a declaration to that effect and having it registered. But if such a declaration is made during any war in which India is engaged, the registration shall be withheld until the central government otherwise directs.
When a male person renounces his citizenship, every minor child of his ceases to be an Indian citizen. Such a child may, resume Indian citizenship if he makes a declaration to that effect within a year of his attaining full age, that is, 18 years.
(ii) by seclusion of territory
Some times, by war or by a treaty, the Union Government may loose some of its territory. Under such circumstances the citizenship of such persons of such territory shall be transferred from India to that country.
Ex: Berubari area.
(iii) Deprivation of citizenship
Deprivation is a compulsory termination of the citizenship of India. A citizen of India by naturalization, registration, domicile and residence, may be4 deprived of his citizenship by an order of the central government if it is satisfied that
1. Registration or naturalization was obtained by means of fraud, false representation or concealment of any material fact.
2. He has shown himself by act or speech to be disloyal or disaffectionate towards the Indian constitution.
3. During a war in which India may be engaged he has unlawfully traded or communicated with the enemy.
4. Within five years of his registration or naturalization he has been sentenced to imprisonment for not less than two years
5. He has been ordinarily residing out of India for seven years continuously.
1.4 Fundamental Rights
Fundamental rights were deemed essential to protect the rights and liability of the people against the encroachment of the power delegated by them to their government. They are limited upon all the powers of the government, legislative as well as executive and they are essential for the preservation of public and private rights, notwithstanding the representative character of political instruments.
RIGHT TO EQUALITY
Article 14 to 18 of the constitution says concept of equality.
1. Equality Before law:
Article 14 declares that the state shall not deny to any person equally before the law or the equal protection of the laws within the territory of India. Thus Article 14 uses two expressions equality before law and equal protection of the law. The first expression equality before law is of English origin and the second expression has been taken from the American Constitution. Both these expression aim at establishing what is called equality status in the preamble of the constitution.
The concept of equality dose not means absolute equality among human beings which is physically not possible to achieve. It is a concept implying absence of any special privilege by reason of birth, creed or the like in favour of any individual, and also the equal subject of all individuals and classes to the ordinary law of the land.
Rule of law:
It means that no man is above the law and that every person, whatever be his rank of conditions. Followings are important points of rule of law.
1. Absence of Arbitrary power of supremacy of the law:
It means the absolute supremacy of law as opposed to the arbitrary power of the government. In other words a man may be punished for a breach of law, but he can be punished for nothing else.
2. Equality before the law:
It means subjection of all classes to the ordinary law of the land administered by ordinary law courts. It means no one is above law with the sole exception of the monarch who can do to no wrong.
3. The constitution is the result of the ordinary law of the land:
It means that the source of the right of individuals is not the written constitution but the rules as defined and enforced by the courts.
Equal protection of the laws:
The guarantee of equal protection of laws is similar to one embodied in the 14th amendment to the American constitution. This has been interpreted to mean subjection to equal law, applying to all in the same circumstances.
The rule of law imposes a duty upon the state to take special measure to prevent and punish brutality by police methodology. The rule of law embodied in Article 14 is the basic feature of the Indian constitution and hence it cannot be destroyed even by an amendment of the constitution under Article 368 of the constitution.
New concept of equality: Protection against arbitrariness.
E.P Royappa v/s State of Tamil Nadu
In this case the Supreme Court has challenged the traditional concept of equality which was based on reasonable classification and has laid down a new concept of equality.
In Menaka Gandhi v/s Union of India
Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. Article 14 strikes at arbitrariness in state action and ensures fairness and equality of treatment.
According to the doctrine the content and reach of Article 14 cannot be determined on the basis of the doctrine of classification.
The basic postulate of the rule of law is that justice should not only be done but it must also be seen to be done. If there is any reasonable ground on which a litigant believes that his matter may not be heard by a particular judges it appropriate for that judge to exclude him from the bench hearing that matter. The Supreme Court held that by the action of the judge the rule of law was violated and quashed the order of the High court and sent the matter for fresh hearing in accordance with law.
K.A. Abbas v/s Union of India
In the above case the validity of Cinematograph Act, 1952 was challenged on the ground that it makes unreasonable classification. Under the Act, cinema films are classified into two categories, viz., "U" films and "A" films according to their suitability for adults or young people. "U" films are meant for unrestricted exhibition while "A" films can only be exhibited to adults. It was argued that motion picture is a form of expression and, therefore, entitled to equal treatment with other forms of expression.
The petitioners contended that there are other forms of speech and expression besides the films but none of them have been subjected to any prior restraint. He claimed that the treatment of motion picture on different footing from other forms of art and expression was invalid classification.
The court held that the treatment of motion picture must be different from that of other forms of art and expression. This arises form the instant appeal of the motion picture, its versatility, realism and its co-ordination of the visual and real senses. The motion picture is able to stir up emotions more deeply than any other product of art. Its effect particularly on children and adolescent is very great men and women. They also remember the action in the picture and try to imitate what they have seen. Therefore, the classification of films into two categories of "U" films and "A" films is a reasonable classification. It is also for this reason that motion picture must be regarded differently from other forms of speech and expression. A person regarding a book or other writing or hearing a speech or viewing a painting or sculpture is not so deeply stirred as by seeing a motion picture. Therefore, the treatment of motion picture on a different footing is a reasonable classification.
In Air India v/s Nargesh Merza
In this case Supreme Court struck down the Air India and Indian Airlines Regulations on the retirement and pregnancy bar on the services of air hostesses as unconstitutional on the ground that the conditions laid down therein were entirely unreasonable and arbitrary. Regulation 46 provided that an air hostess would retire from the service of the corporation upon attaining the age of 35 years, or on marriage, if it took place within four years of service or on first pregnancy, whichever occurred earlier. Under regulation 47 the Managing Director had the discretion to extend the age of retirement by one year at a time beyond the age of retirement upon the age of 45 years if an air hostess was found medically fit. The condition that the services of Air Hostesses would be terminated on first pregnancy was the most unreasonable and arbitrary provision and liable to be struck down. The regulation did not prohibit marriage after four years and if an Air Hostess after having fulfilled the first condition became pregnant, there was no reason why pregnancy should stand in the way of her continuing in service.
Finally court held that the termination of service on pregnancy was manifestly unreasonable and arbitrary and was, therefore, clearly violative of Article 14 of the constitution.
No discrimination on grounds of religion, race, caste, etc:
Article 15 provides for a particular application of the general principle embodied in Article 14. Article 15 is available to citizens only and not to every person whether citizen or non-citizen as under Article 14.
Clause (1) directs the state not to discriminate against a citizen on grounds only of religion, race, race, caste sex or place of birth or any of them.
The word discrimination means to make an adverse distinction or to distinguish unfavourable from others. The word only used in Art. 15 (1) , indicates that discrimination cannot be made merely on the ground that one belongs to a particular caste, sex, etc. in other words, if other qualifications are equal, caste, religion, sex, etc. should not be a ground for preference or disability.
D.P Joshi v/s State of M.B
In the above case a rule of the state Medical College requiring a capitation fee from non-Madya Bharat Students for admission in the college was held valid as the ground of exemption was residence and not place of birth. Place of birth is different from residence. What Art. 15 (1) prohibits is discrimination based on place of birth and not that based on residence.
Clause (2) is a specific application of the general prohibition contained in Art. 15 (1). Clause (2) declares that no citizen shall be subjected to any disability, restriction or condition on grounds only of religion, race, caste, place of birth of any of them with regard to
a) Access to shop, public restaurants, hotels and place of public entertainment.
b) The use of wells, tanks, baths, roads and place of public resort, maintained wholly or partly out of State funds or dedicated to the use of the general public. The object of Article 15 (2) is to eradicate the abuse of the Hindu social system and to herald a united nation.
Clause (3): Special provision for women and children:
It is one of the exceptions to the general rule laid down in clause (1) and (2) of Article 15. It says that nothing in Article 15 shall prevent the state from making any special provision for women and children. Article 15 (3) empowers the state to make special provision for them. The reason is that women's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence and her physical well being becomes an object of public interest and care in order to preserve the strength and vigour of the race.
Clause (4): Special provision for advancement of backward classes:
It is another exception to clauses (1) and (2) of Article 15, it was added by the constitutio0n 1st amendment Act 1951, as a result of the decision in State of Madras v/s Champakam Dorairajan . in this case the madras Government had reserved seats in State Medical and Engineering colleges for different communities in certain proportions on the basis of religion, race and caste. The state defended the law on the ground that it was enacted with a view to promote the social justice for all sections pf the people as required by Article 46 of the directive principles of state policy.
The Supreme Court held that the law void because it classified students on the basis of caste and religion irrespective of merit. The directive principles of state policy of state cannot override the fundamental rights.
Thus under clause 15 (4) two things are to be determined:-
a) Who are socially and educationally backward classes?
b) What is the limit of reservation?
Backward and more backward classification is not bad:
In Balaji v/s state of Mysore
Mysore government issued an order under Article 15 (4) reserving seats in the Medical and engineering colleges in the state as follows: backward classes 28%, more backward classes 20%, schedule castes and tribes 18%. Thus 68% of the seats available in the colleges were reserved and only 32% was made available to the merit pool.
The validity of order was challenged by candidates who had secured more marks than those admitted under the order. Though qualified on merit they had failed to get admission only is reason of the government order. The court held that the sub classification made by the order between backward classes and more backward classes was not justified under Article 15 (4).
Equality of opportunity in public employment
Article16 of the constitution says that equality of opportunity in public employment. Article 16(1) guarantees equality of opportunity for all citizens in matter of employment or appointment to any post under the state. It guarantees equality of opportunity in matters of appointment in state services. It does not; prevent the state from prescribing the necessary qualification and selective tests for recruitment for government services. The qualifications prescribed may, besides mental excellence, include physical fitness, sense of discipline, moral integrity, and loyalty to the state.
The selective test, must not be arbitrary, it must be based on reasonable ground and have nexus between the qualifications and the object that is, post or the nature of the service.
Pandurangarao v/s Andhra Pradesh Public Service Commission
In this case the petitioner, who was a lawyer in some district of the state, was applicant for the post of district Munsif under the state Judicial Service. He was qualified in every respect, except that he was not at that time practicing as an advocate in the Andhra High Court. The Supreme Court held that the rule which required that only a lawyer practicing in the High Court and the notification issued there under was unconstitutional.
There was no reasonable nexus between the qualification and the alleged object of an applicant possessing knowledge of the local laws which could be acquired by any lawyer practicing in any court.
In Air India v/s Nargesh Meerza
In the above case, the petitioner challenged the validity of the regulations under which they could retire at age of 35 years or if they got married within four years of their service or on first pregnancy on the ground that they were discrimin atory and violative of Articles 14, 15 and 16 of the constitution. While the court held that the provisions on pregnancy bar and the retirement and the option of the Managing direct or were unconstitutional as being unreasonable and arbitrary and violative of Article 14, it upheld the validity of the provision prohibiting the Air Hostesses to marry within four years of their service as there was no unreasonableness and arbitrariness in that provision.
Clause (2): Descent and Residence:
It says no discrimination can be made on descent and residence. This is just to assure that parochialism and nepotism is eliminated in the matters of appointment in government services. Article (2) says descent is another spot for individual discrimination.
In Pradeep Jain v/s Union of India
In this case the supreme Court has held that although in view of Article 16(2) and earlier decisions of the court the residential requirement of admission to a medical college in a state is valid and constitutional but its validity can be tested on the touchstone of Article 14 and if it violates Article 14 it will be unconstitutional and void.
Clause (3): Residence can be a ground for reservation of posts:
It is an exception to clause (2) of this Article which forbids discrimination on the ground of residence. There may be good reasons for reserving certain posts in state for the residents only. This Article empowers parliament to regulate by law the extent to which it would be permissible for a state to depart from the above principle.
In Narsimha Rao v/s State of A. P.
In this case the Supreme Court declared part of then Act unconstitutional which prescribed residence as qualification for government services in Telangana area of the state of Andhra Pradesh. The word state in Article 16(3) signifies the whole of the state and not parts of the state and therefore residential qualification can be prescribe for the whole of the state. Though parliament can reserve certain posts in Andhra Pradesh for the residents of the State, but it cannot reserve posts in Telangana for the residents of Telangana only, which is a part of the state.
Clause (4): Reservation for backward classes:
It is the second exception to the general rule embodied in Articles 16(1) and 16(2). It empowers the state to make special provision for the reservation of appointments of posts in favour of any backward class of citizens which in the opinion of the state are not adequately represented in the services under the state.
Conditions
Article 16(4) applies only if two conditions are satisfied
a) The class of citizens is backward
b) The said class is not adequately represented in the services of the state.
The scope of Article 16(4) was considered by the Supreme Court in Devadason v/s Union of India
In this case the constitutional validity of the "carry forward rule", framed by the government to regulate appointment of persons of backward classes in government services was violated. This rule provided that if sufficient number of candidates belonging to the scheduled castes and schedule tribes were not available for appointment to the reserved quota, the vacancies that remained unfilled would e treated as unreserved and filled by the fresh available candidates; but a corresponding number of posts would be reserved in the next year for schedule castes and scheduled tribes in addition to their reserved quota of the next year. The result was to carry forward the unutilized balance, that is, unfilled vacancies were reserved for scheduled castes and scheduled tribes.
Finally the supreme Court struck down the :carry-forward rule" as unconstitutional on the ground that the power vested in government under Article 16(4) could not be exercised so as to deny reasonable equality of opportunity in matters of public employments for members of classes other than backward.
Indra Sawhney v/s Union of India - the mandal Case
In that case on January 1, 1979 the government headed by the Priminister Sri Morarji Desai appointed the second Backward classes commission under article 340 of the constitution under the chairmanship of Sri B.P. Mandal (MP) to investigated the socially and educationally backward classes within the territory of India and recommend steps to be taken for their advancement including desirability for making provisions for reservation of seats for them in government jo0bs. The commission submitted its report in Dec. 1980. it has identified as many as 3743 casts as socially and educationally backward classes and recommended for reservation of 27 percent government's jobs for them. In 1989 the congress party was defeated in the parliamentary elections and the Janata Dal again came to the electorate. Accordingly, the Government of India, headed by Prime Minister Sri. V.P. Singh issued the office memoranda on August 13, 1990 reserving 27 per cent seats for backward classes in government services in the basis of the recommendations of the Mandal Commission. The acceptance of the report of the Mandal commission threw the Nation into turmoil and a violent anti-reservation movement rocked the nation for nearly three months resulting in huge loss of persons and property. A writ petition on behalf of the Supreme Court Bar Association was filed challenging the validity of the O.M. and for staying its operation.
Finally the five judges' bench of the court stayed the operation of the OM till the final disposal of the case on October 1, 1990. Unfortunately the Janata government again collapsed due to defections and in 1991 parliamenty elections he congress party again came into power at the centre. The Supreme Court held that the decision of the Union Government to reserve 27% government jobs for backward classes provided socially advanced persons.
Article 16(4) may be summarized as follows:-
1. Backward class of citizen in Art. 16(4) can be identified on the basis of caste and not only on economic basis.
2. Art. 16(4) is not an exception to Art. 16(1). It is an instance of classification. Reservation can be made under Art. 16(1).
3. Backward classes in Art. 16(4) are not similar to as socially and educationally backward in Art. 15(4).
4. Creamy layer must be excluded from backward classes.
5. Art. 16(4) permit classification of backward classes into backward and more backward classes.
6. a backward class of citizens can not be identified only and exclusively with reference to economic criteria. Reservation shall not exceed 50 per cent.
7. Reservation can be made by 'Executive Order'.
8. No reservation in promotion.
Clause (5): Religious qualification can be prescribed for incumbent of religious institutions:
Art. 16(5) is the third exception to the general rule laid down in Art. 16(1) and (2) which forbids discrimination in public employment on the ground of religion. Art. 16(5) says that a law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination shall not be treated to be repugnant to this Article.
Abolition of Untouchability
Article 17 abolishes untouchability, it is a product of the Hindu caste system according to which particular section amongst the Hindus had been looked down as untouchables by the other sections of that society. it include persons who are treated as untouchables either temporarily or otherwise for various reasons, such as, suffering from infectious diseases or on account of social observance caste or other dispute.
Parliament has enacted the Untouchability offences Act 1955. This Act was amended by the Untouchability offences amendment Act 1976. It imposes a duty on public servants to investigate such offences. It provides that if a public servant, willfully neglects the investigation such offence punishable under this Act he shall be deemed to have abetted an offence punishable under this Act.
In 1955 the protection of Civil Rights Act was passed. This Act prescribes punishment which may extend to imprisonment up to six months and also with a fine which may extend to five hundred rupees or both for any one enforcing, on the ground of untouchability.
Abolition of Titles
Article 18 prohibits the state to confer titles on any body whether a citizen or a non-citizen. Military and academic distinctions are exempted from the prohibition for they are incentive to further efforts in the perfection of the military power of the state so necessary for its existence, and for the scientific endeavors so necessary for its prosperity.
Article 18 (2) prohibits a citizen of India from accepting any title from any foreign state.
Article 18(3) provides that a foreigner holding any office of profit or trust under the state cannot accept any title from any foreigner state without the consent of the president.
The recent conferment of titles of 'Bharath Rathna', Padma 'Vibhushan', 'Padmashri', etc are not prohibited under Article 18 as they merely denote state recognition of good work by citizens in the various fields of activity. This award seems to fit in within the category of academic distinctions.
These National Awards were formally instituted in January 19954 by two Presidential Notifications the Presidential Notifications also provides that any person without distinction of race, occupation, position or sex, shall be eligible for these awards and also that the decorations may be awarded posthumously.
In Balaji v/s Union of India
In this case the petitioners challenged the validity of these National awards and requested the court to prevent the government of India from conferring these awards. It was contended that the National Awards are titles within the meaning of Art. 18 of the constitution. The theory of equality does not mandate that merit should not be recognized. Article 51-A of the constitution speaks of the fundamental duties of every citizen of India. In view of clause (f) of Art. 51-A it is necessary that there should be a system of award and decorations to recognize excellence in performance of the duties.
Right to Freedom
There are six fundamental freedoms which are guaranteed to the citizens by Article 19 of the constitution.
1. Freedom of speech and Expression
2. Freedom of Assembly
3. Freedom of form Associations
4. Freedom of Movement
5. Freedom to reside and to settle
6. Freedom of profession, occupation, trade or business
1. Freedom of speech and expression
Article 19(1)(a) of the constitution says freedom of speech and expression is indispensable in a democracy.
In Ramesh Thapper v/s State of Madras
In this case freedom of speech and of the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.
Meaning
It means to express one's own convictions and options freely by words of mouth, writing, printing, picture or any other mode. it includes the expression of one's ideas through any communicable medium or visible representation, such as, gesture, signs and the like. Free propagation of ideas is the necessary objective and this may be done on the platform or through the press. And also it includes liberty to serve:
A. it helps an individual, to attain self-fulfillment
B. it assist in the discovery of truth
C. it strengthens the capacity of an individual in participating in decision making
D. it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
In Prabhu dutt v/s Union of India
In this case the Supreme Court has held that the right to know news and information regarding admission of the government is included in the freedom of press. But this right is not absolute and restrictions can b e imposed on it in the interest of society and the individual from which the press obtains the information. They can obtain information from information from an individual when he voluntarily agrees to give such information.
Freedom of Information Act, 2005
This legislation entitles every citizen to have access to information controlled by public authorities. The object of the Act is to promote openness, transparency and accountability in administration. This law will certainly strengthen the freedom of press because under the Official Secret Act the authorities usually denied the information relating to government documents.
The freedom of information is basically a citizen's right but the freedom of press is not different than a citizen's right. It is the press which discloses the matter relating t6o public importance and strengthens democracy.
Freedom of the press
It implicit in the right freedom of speech and expression, is essential for political liberty and proper functioning of democracy. the liberty of the press is consist in printing without any license subject to the consequences of law. Thus liberty of press means liberty to print and publish what one pleases, without previous permission. The freedom of the press is not confined to newspapers and periodicals. It includes also pamphlets and circulars and every sort of publication which affords a vehicle of information and opinion.
In Indian express Newspapers v/s Union of India
In this case the expression freedom of the press has not been used in Article 19 but it is comprehended within article 19 (1) (a). the expression means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers. There can not be any interference with that freedom in the name of public interest. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Freedom of the press is the heart of social and political intercourse.
Pre-Censorship invalid
The imposition of censorship on a journal previous to its publication would amount to an infringement of Article 19(1)(a). The question of validity of censorship came up for consideration in the case of Brij Bhushan v/s State of Delhi. In this case the chief Commissioner of Delhi, in pursuance of Section 7 of the East Punjab Safety Act, 1949, issued an order against the printer, publisher, editor of an English Weekly of Delhi, called the Organizer, directing them to submit for scrutiny in duplicate before publication till further orders, all communal matters and views, about Pakistan including photographs and cartoons other than those derived from official source or supplied by the news agencies.
The court struck down the order, observing the imposition of pre-censorship of a journal is a restriction on the liberty of the press which is an essential part of pre-censorship of a journal is a restriction on the liberty of the press which is an essential part of the freedom of the speech and expression declared by Article 19(1)(a).
Ramesh Thapper v/s State of Madras
In that case a law banning entry and circulation of journal in a state was held to be invalid. The petitioner was printer, publisher and editor of a weekly journal in English called "Cross road" printed and published in Bombay. The government of Madras, exercise of either powers under section 9(1-A) of the Maintenance of Public Order Act, 1949, issued an order prohibiting the entry into or the circular of the journal in the state.
The court said that there can be no doubt that freedom of speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation.
Film censorship valid
K.A. Abbas v/s Union of India
It is the first case in which the question whether prior censorship of film is included in Article 19(2) came for the consideration of the Supreme Court of India. The petitioner had challenged the validity of censorship as violative of his fundamental right of freedom of speech and expression as according to him it imposed unreasonable restriction. Under the Cinematograph Act, 1952 films are divided into two categories, i.e., 'U' films and 'A' films. 'U' films are meant for unrestricted exhibition while' A' films can be shown to adults only. The petitioner's film "Tale of Four Cities" was refused 'U' certificate. He also contended that there were other forms of speech and expression besides the films and none of them were subjected to any proper restraint in the form of pre-censorship and claimed equality of treatment with such other forms.
Finally the court held that pre-censorship of films was justified under Article 19(2) on the ground that films have to be so treated separately from other forms of art and expression because a motion picture was able to stir emotions more deeply that any other product of art. Hence classification of films between two categories i. e., 'A' and 'U' was held to be valid.
Grounds of Restrictions
Clause (2) of Article 19 contains the grounds on which restrictions on the freedom of speech and expression can be imposed
1. Security of the State
It clearly implies that the actual result of the act is immaterial. Thus acts which may indirectly being about an overthrow of the state would come within the expression. An incitement to an armed revolution, though infractions, ultimately, is enough to attract the term security of the state.
2. Friendly relation with foreign States
This ground was added by the constitution 1st amendment Act 1951. the object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly state which may jeopardize the maintenance of good relations between India and that state.
3. Public Order
This ground was added by the constitution 1st amendment Act 1951. Public order is something more than ordinary maintenance of law and order. Public order is synonymous with public peace, safety and tranquility. The test for determining whether an act affects law and order or public order is to se4e whether the act leads to the disturbances of the current of life of the community o as to amount to a disturbance of the public order or whether it affects merely an individual being the tranquility of the society undisturbed.
4. Decency or morality
The word obscenity of English law is identical with the word indecency under the Indian constitution. The test of obscenity is whether the tendency of matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences. Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency and morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc.
5. Contempt of court
The contempt of court Act 1971, defines the expression contempt of court as follows: according to section 2 it may be either civil or criminal contempt of court civil contempt means willful disobedience to any judgment, decree, direction, order writ or other process of a court or willful breach of an undertaking given to a court. Criminal contempt means the publication whether by words spoken or written or by signs or by visible representations or otherwise or any matter or the doing of any other act whatsoever.
6. Defamation
A statement which injuries a man's reputation amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. Section 499 of the I.P.C., contains the criminal law relating to defamation. It recognizes no distinction between the defamatory statement addressed to the ear or eyes.
7. Incitement to an offence
This ground was also added by the constitution 1st amendment Act, 1951. The word offence used here is not defined in the constitution. It is defined in the general clauses Act as meaning offence shall mean any act or omission made punishable by any law for time being in force.
8. Integrity and sovereignty of India
This ground was added to clause (2) of Article 19 may the constitution 16th amendment Act, 1963. Under this clause freedom of speech and expression can be restricted so as not to permit to any one to challenge the integrity or sovereignty of India or to preach cession of any part of India from Union.
Freedom of Assembly
Article 19 (1) (b) guarantees to all citizens of India right to assemble peaceably and without arms. The right of assembly includes the right to hold meetings and to take out processions. This right is subject to the following restrictions imposed by Article 19(3).
1. The assembly must be peaceable
2. It must be unarmed
3. Reasonable restrictions can be imposed under clause 3 of Article 19.
The right if assembly is implied in the very idea of the democratic government.
The right of assembly thus includes right to hold meetings and to take our processions. The right, like other individual rights is not absolute but restrictive. The assembly must be non-violent and must not cause any breach of public peace.
When a lawful assembly becomes unlawful
Article 19(1) (b) saves existing Indian law regulating public meetings in the interest of public order if the restrictions are reasonable.
Object of the section
1. To resist the execution of any law or legal process
2. To commit any mischief or criminal trespass
3. Obtaining possession of any property by force
4. To compel a person to do what he is not legally bound to do or omit which he is legally entitled to do.
5. To overawe the government by means of criminal force or show of criminal force or any public servant in the exercise of his lawful powers.
Freedom to Form Association
Article 19(1) (c) of the constitution of India guarantees to all its citizens the right to form associations and unions. The right to association pre-supposes organization. It is an organization or permanent relationship between its members in matter of common concern. It includes the right to form companies, societies, partnership, trade union and political parties. The freedom to form association implies also the freedom to form or not to form, to join or not to join, an association or union.
In Damayanthi v/s Union of India
In that case the validity of Hindi Sahithya Sammelan Act, 1962 was challenged as violative of Article 19(1) (c). The petitioner was a member of an association. The Act changed the composition of the association and introduced new members. The result of this alteration was that the members whom voluntarily formed the association were now compelled to act in the association with other members in whose admission they had no say. The Supreme Court held that the Act violated the rights of the original members of the society to form an association guaranteed under Article 19(1) (c).
Restrictions
Clause (4) of Article 19 empowers the state to impose reasonable restrictions on the right of freedom of association and union in the interest of public order or morality or sovereignty or integrity of India.
State of Madras v/s V.G.Rao
In that case Supreme Court held that the restrictions imposed by section 16(2) (b) of the Act were unreasonable. Their under it was subjective satisfaction of the government and the factual existence of the grounds was not a justifiable issue. Therefore the vesting of power in the government to impose restriction on this right, without allowing the grounds tested in a judicial enquiry, was a strong element to be taken into consideration in judging the reasonableness of the restrictions on the right to form association or union.
Freedom of Movement
Article 19 (1) (d) guarantees to all citizens of India the right to move freely throughout the territory of India. This right is subject to reasonable restrictions mentioned in clause (5) of Article 19. this Article guarantees to its citizens a right to go whenever they like in Indian territory any king of restriction whatsoever. They can move not merely from one state to another but from one place another within the same state.
Grounds of Restrictions
Article 19(5) imposes reasonable restrictions on freedom of movement on two grounds.
1. in the interests of general public.
2. for the protection of the interest of Scheduled tribes.
State of Utter Pradesh v/s Kaushalya
In this case the Supreme Court has held that the right of movement of prostitutes may restricted on ground of public health and in the interest of public morals.
The right of a citizen to move freely may also be restricted for the protection of the interest of scheduled Tribes. The object is to protect the original tribes.
N.B. Khare v/s State of Delhi
In that case the petitioner was served with an order of externment by the district magistrate, Delhi, to remove himself immediately from Delhi district and not to return there for a period of three months. The order was made under the East Punjab Safety Act, 1949. The petitioner contended that the order imposed unreasonable restrictions on his right to move freely, because,
A. the externment order depended on the subjective satisfaction of the Executive.
B. the Act did not fix any maximum time beyond which the order could continue.
The Supreme Court held that the mere fact that the power to make the order of exrernment was given to the state Government or District Magistrate whose satisfaction was final did not make the restriction unreasonable because the desirability of passing such an individual order in emergency had to be left to an officer. The second contention was rejected on the ground that the Act was of limited duration, there was no possibility of an order of externment being made for definite period. But a law providing for externment of 'dangerous character' from a particular locality cannot be called reasonable if it does not specially define as to what is meant by dangerous character as it gives the administrative authority arbitrary power to determine as whether a citizen is of dangerous character.
FREEDOM OF RESIDENCE
Article 19(1) (e) every citizen of India has the right "to reside and settle in any part of the territory of India. The object of the clause is to remove internal barriers within India or any of its parts. The words "the territory of India" as used in this Article indicate freedom to reside anywhere and in any part of the State of India.
The freedom of movement and residence may be curtail and suspended during an emergency. In t6he case of a foreigner it can be restricted under the Foreigners Acts of 1964 and 1966.
In State of M.P v/s Bharat Singh
Section 3(1) of the M.P. Public Security Act, 1959, empowered the State Government to issue an order requiring a person to reside or remain in such a place as might be specified in the order or to ask him to leave the place and go to another place selected by authorities in the interests of security of the State or public order. The Supreme Court held that Section 3 (1) (b) of the Act imposes unreasonable restriction on the right guaranteed by Article 19(1)(b) and, therefore, void.
Article 19(5) imposes restriction on freedom of residence.
1. In the interest of the general public
2. Public Order.
Freedom of Profession, occupation, trade or business
Article 19(1) (a) guarantees that all citizens shall have the right "to practice any profession, or to carry on any occupation, trade or business", the right to carry on a business includes a right to close it at anytime the owner likes. So, state cannot compel a citizen to carry on business against his will. But as no right is absolute, the right to close a business is also not an absolute right. It can be restricted or controlled by law in the interest of public. The right to close down a business cannot be equated or placed at per as high as the right not to start and carry on business.
In Excel Wear v/s Union of India
In that case the petitioner "Excel Wear" was a registered firm. It had a factory at Bombay where it manufactured garments for exports. Due to serious labour trouble the factory was running into a recurring loss. The petitioners finding it almost impossible to carry on business of the factory served a notice on the state Government for prior approval for its closure. The government refused approval in the public interest. The government refused approval under sections 25-O, 25-R, of the Industrial Disputes Act, 1947. Section 25-O of the Industrial Disputes Act requires an employer to take permission from the government for closure of his industrial undertaking. The employer is required to give a three months notice to the government. The government could refuse the permission to close down the business if it is satisfied that the reasons given by the employer "were not adequate and sufficient "or that "such closure is prejudicial to the public interest". Section 25-R provides punishment for violation of Section 25-O.
The supreme Court held that section 25-O of the Act as a whole and section 25-R in so far as it relates to the awarding of punishment for violation of the provisions of Section 25-O were unconstitutional and invalid for violation of Article 19(1) (g) of the constitution.
Hawkers Right to trade on payment of roads
In Sodan singh v/s New Delhi Municipal Committee
In that case a five judge bench of the Supreme Court has held that hawkers have a fundamental right to carry on trade on pavement of roads, but subject to reasonable restrictions under Article 19(6) of the constitution. The petitioners who were poor hawkers were carrying on business on the pavements on payments of roads of Delhi and New Delhi. They alleged that they were permitted by the respondent Municipal authorities to carry on their business by occupying a particular area on the pavements on them to continue with their trade and thereby they were violating their fundamental right guaranteed under Articles 19(1) (g) and 21 of the constitution.
The Supreme Court held that the right to carry on trade or business mentioned in Article 19(1) (g) on pavement of roads, if properly regulated, cannot be denied on ground that the streets are meant exclusively for passing or re-passing and for no other use. The right if property regulated would help both the small traders and the general public by making available ordinary articles of every day use for a comparatively lesser price.
The decision of the court would go along way in safeguarding the rights of the vast majority of India's population, who are still living below property line, to earn their livelihood by street trading. Through various decisions the court has reminder the government of its constitutional obligations to ameliorate the lot of the poor in India. It is expected that in the light of this decision the state will do the needful in this respect within a reasonable time.
Grounds of restrictions
Clause (6) of Article 19 the state is authorized to impose reasonable restrictions on the right to carry on a trade, profession or business. Those are:
1. Reasonable
2. in the interest of general public.
In determining the reasonableness of the restriction imposed by law under Article 19(6). The court cannot proceed on a general notion of what is reasonable in the abstract or even on consideration of what is reasonable from the point of view of the persons on whom the restrictions are imposed.
Instances of Reasonable Restrictions:
1. There is no right to carry on business at a particular place. The state may impose reasonable restrictions in the interest of general public. Thus a competent authority may reasonably fix a place for a bus stand, a cinema house, or a liquor shop.
2. The minimum wages Act empowers the government to fix minimum wages to be given to the laborers in a particular industry.
In Bijoy Cotton Mills Ltd. v/s State of Ajmer
In that case the Act was challenged as being in violation of Article 19(1) (g). The court held the restrictions imposed by the Act to be reasonable as being imposed in the interest of general public.
1. The Punjab Trade Employees Act, 1949, provided that6 shops and establishments shall remain closed for a day in a week. In Monohar Lal v/s State of Punjab, in that case the Supreme Court held that restriction to be reasonable because the purpose of the Act was to improve the health and efficiency of the workers who from an essential part of the community and in whose welfare the community was vitally interested. The contention of the petitioner that the Act did not apply to him because he did not employ any other person and was conducting the business himself was also rejected by the court.
2. Imposition of license fee as a requirement for the grant of license to a citizen who wants to carry on a trade or business or profession does not amount to an unreasonable restriction. But the c condition for granting license must be reasonable and must not give arbitrary power to the licensing authority. Thus a fee for obtaining a license or a permit is not unreasonable. It is neither a tax nor unreasonable condition for the grant of license.
Instances of Unresonable restriction
In Chintaman Rao v/s State of M.P.
In that case law authorized the government to prohibit all persons residing in certain areas from engaging themselves in the manufacture of biri during the agriculture season. The object of the law was to provide adequate labour for agricultural purposes in biri-making areas. The Supreme Court held the law invalid as it imposed unreasonable restriction on the biri-making business of the area. The Act is much in excess of the object which the law seeks to achieve. It not only impels those who are engaged in agricultural work from taking other vocation but also prohibits persons which as infirm, disabled, old women and children incapable of working as agricultural labourers from engaging themselves in the business of biri-making and thus earning their livelihood, hence it was arbitrary and wholly unreasonable.
In R.H. Hegde v/s Market Committee Sirsi
In that case the government issued a notification in 1965 under Section 4-A of t5he Bombay Agricultural Produce Market Act 1939, declaring certain area a principal market yard in suppression of its earlier notification issued in 1954. The petitioner challenged the validity of the order on the ground that it imposed unreasonable restriction on his fundamental right to carry on business. The Supreme Court held that the order was violative of petitioner's fundamental right to carry on business of declares who have to shift their business from the old notified principle market-yard within a short period of 10 years.
Protection in respect of conviction for offences
Article 20 of the constitution provides the following safeguard to the persons accused of crimes.
1. Ex post facto law
2. Double jeopardy
3. Prohibition against self-incrimination
1. Protection against Ex post facto law:
Clause (1) of Article 20 of the constitution says that "no person shall be convicted of any offence expect for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence".
It is a law which imposes penalties retrospectively, i.e., on acts already done and increases the penalty for such acts. The first part of clause (1) provides that if an act is not an offence at the date of its commission it cannot be an offence at the date subsequent to its commission. The second part of clause (1) protects a person from 'a penalty greater than that which he might have been subjected to at the time of the commission of the offence.
Kedar Nath v/s State of West Bengal
In that accused committed an offence in 1947, which under the Act then in force was punishable by imprisonment or fine or both. The Act was amended in 1949 which enhanced the punishment for the same offence by an additional fine equivalent to the amount of money procured by the accused through the offence. The Supreme Court held that the enhanced punishment could not be applicable to the act committed by the accused in 1947 and hence set aside the additional fine imposed by the amended Act.
But the accused can take advantage of the beneficial provisions of the ex post facto law. The rule of beneficial construction requires that ex post facto law should be applied to mitigate the rigorous of the previous law on the same subject. Such a law is not affected by Article 20(1). The principle is based both on sound reason and common sense.
2. Protection against Double Jeopardy
Clause (2) of our constitution says that "no person shall be prosecuted and punished for the same offence more than once". This clause embodies the common law rule of nemo debet vis vexari which means that no man should be put twice in peril for the same offence. If he is prosecuted against for the same offence for which he has already been prosecuted he can take complete defense of his former acquittal or conviction.
The following essentials of the application of double jeopardy rule. They rule:
1. The person must be accused of an offence.
2. The proceeding or the prosecution must have taken place before a court of judicial tribunal.
3. The person must have been prosecuted and punished in the previous proceeding.
4. The offence must be the same for which he was prosecuted and punished in the previous proceedings.
Maqbool Husai v/s State of Bombay
In that case the appellant brought some gold into India. He did not declare that he had brought gold with him to the customs Authorities on the airport. The customs authorities confiscated an offence under the Foreign Exchange was later on charged for having committed an offence under the Foreign Exchange Regulations Act. The appellant contended that second prosecution was in violation of Article 20(2) as it was for the same offence, i./e., for imposing gold in contravention of government notification for which he had already been prosecuted and punished as his gold had been confiscated by the customs Act did not constitute a judgment of judicial character necessary to take the plea of the double jeopardy. Hence the p[prosecution under the Foreign Exchange Regulation Act is no barred.
Article 20(2) will have no application where punishment is not for the same offence. Thus if the offences are district the rule of double jeopardy will not apply.
Prohibition against self-incrimination
Clause (3) of Article 20 provides that no person accused of any offence shall be compelled to be a witness against himself. The cordial principle of criminal law which is really the bed rock of English jurisprudence is that an accused must be presumed to be innocent till the contrary is proved. The fundamental rule of law criminal jurisprudence against self-incrimination has been raised to a rule of constitutional law in Article 20 (3). This guarantee extends to any person accused of an offence and prohibits all kinds of compulsions to make him a witness against himself.
Essential conditions
1. It is a right pertaining to a person who is "accused of an offence".
2. It is a protection against "compulsion to be a witness".
3. It is a protection against such compulsion relating to his giving evidence 'against himself".
1. Accused of an offence:
A person is said to be an accused person against whom a formal accusation relating to the commission of an offence has been leveled within in normal course may result in his prosecution and conviction.
2. To be a witness:
The protection is against compulsion "to be a witness".
In M.P. v/s Satish Chandra
In that case the Supreme Court interpreted the expression to be a witness very widely so as to i8cnlude oral, documentary and testimonial evidence. The prosecution under Article 20 (3) covers not merely testimonial compulsion in a court-room but also compelled testimony previously obtained any compulsory process for production of evidentiary document which are reasonably likely to support the prosecution against him. The court accepted the definition given in the Indian Evidence Act that a person can be 'a witness' not merely by giving oral evidence but also by production documents or making intelligible gestures as in the case of a dumb witness or the like.
3. Compulsion to give evidence 'against himself':
The protection under Article 20 (3) is available only against the compulsion of accused to give evidence 'against him". But left to himself he may voluntarily wave his privilege by entering into the witness-box or by giving evidence voluntarily request. The Article must be shown that the accused was compelled to make the statement likely to be in criminative or him.
In Nandini Satpathy v/s P.L. Dani
In that case the Supreme Court has considerably widened the scope of clause 93) of Article 20. The court has held that the prohibitive scope of article 20 (3) goes back to the stage of police interrogation not commencing in court only. It extends to, and protects the accused in regard to other offences-pending or imminent-which may deter him from voluntary disclosure.
Protection of life and liberty
Article 21 of the constitution says "no person shall be deprived of his life or personal liberty except according to procedure established by law.
Meaning and scope of Article 21
The meaning of the words "personal liberty came up for consideration of the Supreme Court for the first time in
A.K. Gopalan v/s Union of India
In that case the petitioner, A. K. Gopalan,. A communist leader was detained under the Preventive Detention Act, 1950. The petitioner challenged the validity of his detention under the Act on the ground, that it was violative of his right to freedom of movement under Article 19 91) (d) which is very essence of personal liberty guaranteed by Article 21 of the constitution. The word personal liberty includes the freedom of movement also and therefore the Preventive Detention Act, 1950 must also satisfy the requirement of Art. 19(5).
The expression 'personal liberty' in Article 21 is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have raised to the status of distinct fundamental rights and given additional protection under Article 19.
Menaka Gandhi's Case - A new dimension
In that case the petitioner's passport was impounded by the Central Government under Section 10(3) (c) of the Passport Act, 1967.the Act authorized the government to do so if it was necessary 'in the interest of the general public'. The government of India declined 'in the interest of the general public' to furnish the reasons for its decision. The petitioner challenged the validity of the said order on the following grounds that: Section10 (3) (c) was violative of Article 14 as conferring an arbitrary power since it did not provide for hearing of the holder of the passport before the passport was impounded. Section 10 (3) (c) was violative of Article 21, since it did not prescribe 'procedure' within the meaning of that Article 21. Section 10 (3) (c) was violative of Article 19 (1) (a) and (g) since it permitted imposition of restrictions not provided in clauses (2) or (6) of Article 19.
The reasons for the order were, disclosed in the affidavit filed required in connection with the proceedings before a commission of inquiry. Regarding the opportunity to be heard the Attorney-General filed a statement that the petitioner could make a representation in respect of impounding passport that the representation would be dealt with expeditiously in accordance with law.
The Supreme Court held that the government was not justified in withholding the reasons for impounding the passport from the petitioner and the procedure contemplated in Article 21 could not be unfair or unreasonable and this principle of reasonableness which was an essential element of equality or non-arbitrariness.
Article 21 discuses following concepts
1. Right to live with human dignity:
The right to live is not restricted to mere animal existence. It means something more than just physical survival. The right to live is not confined to the protection of any faculty or limb through which life is enjoyed or the soul communicates with the outside world but it also includes" the right to live with human dignity", and all that go9es along with it, namely, the bare necessities of life such as, adequate nutrition, clothing and shelter and facilities for reading, writing and expressing ourselves in diverse forms, freely moving about and mixing and commingling with fellow human being.
In peoples Union for Democratic rights v/s Union of India
In that case non-payment of minimum wages to the workers employed in various Asiad Projects in Delhi was a denial to them of their right to live with basic human dignity and violative of Article 21 of the constitution. The rights and benefits conferred on the workmen employed by a contractor under various labour laws are "clearly intended to ensure basic human dignity to workmen and if the workmen are deprived of any of these rights and benefits that would clearly be a violation of Article21".
Finally the Supreme Court held that the non-implementation by the private contractors and non-enforcement by the State Authorities of the provisions of various labour laws violated the fundamental right of workers" to live with human dignity".
2. Right to livelihood:
Article 21 includes 'right to livehood'. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livehood because no person can live without the means to livehood.
In Sodan Singh v/s New Delhi Municipal Committee
In that case the five judge bench of the Supreme Court has held the right to carry on any trade or business is not included in the concept of life and personal liberty. The petitioners, hawkers doing business of the pavement of roads in Delhi, had claimed that the refusal by the Municipal authorities to them to carry on business of their livehood amount4ed to violation of their right under Article 21 of the constitution.
3. Right to shelter:
In Chameli singh v/s State of U.P
It has been held that the right to shelter is a fundamental right under Article 21of the constitution. In any organized society, the right to live as a human being is not ensured by meeting only the animal needs of a man. It is secured only when he is assured of all facilities to benefit himself. right to live guaranteed in any civilized society implies the right to food, water decent environment, education, medical care and shelter these are basic human rights known to any civilized society. Right to shelter includes adequate living peace, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation.
4. Right to Privacy:
The right to privacy or the right to be let alone is guaranteed by Article 21 of the constitution. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matter.
This rule is subject to an exception that if any prohibition of such matters is based on public record including court record it will be unobjectionable. If a matter becomes a matter of public record the right to privacy no longer exists and it becomes a legitimate subject for comment by press and media among others and this rule in interests of decency under Article 19 (2) in the following cases
a) A female who is the victim of a sexual assault
b) Kidnapping, addiction or a like offence.
The second exception is that the right to privacy or the remedy of action for damage is simply not available to public officials as long as the criticism concerns the discharge of their public duties.
In R. Rajgopal v/s State of T.N
In this case the editor and the associate Editor of the Tamil Magazine "Nakheeran" published from Madras moved the Supreme Court and asked for a writ restraining government officials from interfering with their right to publish the autobiography of Auto Shankar who had been convicted for several murders and awarded capital punishment. Auto shankar had written his autobiography in jail which depicted close relationship between the prisoner and several IAS, IPS and other of claims, some of whom were partners in several crimes. The announcements by the Magazine that very soon a sensational life history of auto shankar would be punished, created panic among several police officials that they might be exposed. They forced him by applying third degree method to write letter addressed to the Inspector general of Prisons that he had not written any such book and it should not be punished. The I.G. wrote the publisher that it was false and should not be published.
It is to be noted that the petitioners did not show that they were authorized to publish the book. The question for consideration was whether a citizen could prevent another for writing his autobiography.
Finally the court held that the state or its officials have no authority in law to impose prior restraint on publication of defamatory matter. The public officials can take action only after the publication if it is found to be false.
5. Right to health and Medical Assistance:
In Parmananda Katarav/sUnion of India
It has been held that it is the professional obligation of all doctors, whether government or private, to extend medical aid to the injured immediately to preserve life without waiting legal formalities to be complied with by the police under Cr.p.c. Article 21 of the constitution casts the obligation on the state to preserve life. It is the obligation of those who are in charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence which amounts legal punishment. No law or state action can intervene to delay the discharge of this paramount obligation of the members of the medical profession. The obligation being total, law so procedure whether in statues or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, give way. The court must be published in all journals reporting decisions of this court and adequate publicity highlighting these aspects should be given by the national media.
The medical council must send copies of this judgment to every medical college affiliated to it. This is a very significant ruling of the court. It is submitted that if this decision of the court is followed, in its true sprit it would help in saving the lives of many citizens who die in accidents because no immediate medical aid is given by the doctors on the ground that they are not authorized to treat medico-legal cases.
6. Right to die- Not a fundamental right under Article 21:
The question whether the right to die is included in Article 21 of the constitution came for consideration the first time before the Bombay High court in State of Maharastra v/s Maruty Sripathi Dubal. In this case the court held that the right to life guaranteed by Article 21 includes a right to die, and consequently the court struck down section 309 IPC which provides punishment for attempt to commit suicide by a person as unconstitutional. The judges felt that the desire to die is not unnatural but merely abnormal and uncommon. They listed several circumstances in which people may wish to end their lives, including disease, cruel or unbearable condition of life, a sense of shame or disenchantment with life. They held that everyone should have the freedom to dispose of his life as and when he desires.
In P. Rathinam v/s Union of India
In Maruthi Sripathi dubal case held that a person has a "right to die" and declared unconstitutional, section 309of the Indian Penal Code which makes "attempt to commit suicide" a penal offence. The right to live in Article 21 of the constitution includes the right to live, i.e., right to die or to terminate one's life. In the present case the petitioners had challenged the validity of Section 309 on the grounded that it was violative of Articles 14 and 21 of the constitution and prayed for quashing the proceedings initiated against the petitioner under section 309 pending in the court.
The Court held that Section 309of the IPC was violative of Article 21 and hence it is void. A person can not be forced to enjoy right to life to his detriment, disadvantage or disliking. The court held that section 309of the IPC was' a cruel and irrational provision". The court held that "right to life of which Article 21 of the constitution speaks of can be said to bring in its trial the right not to live a forced life".
7. Right to get pollution free water and air:
The public interest litigation is maintainable for ensuring enjoyment of pollution free water and air which is include4d in the right to live under Article 21 of the constitution.
Protection of Ecology and Environmental pollution:
In Rural Litigation and Entitlement Kendra v/s State of U.P
In this case the court ordered the closure of certain lime stone quarries on the ground that there were serious deficiencies regarding safety and hazards in them. The court had appointed a committee for the purpose of inspecting certain lime stone-quarries. The committee had suggested the closure of certain categories of stone quarries having regard to adverse impact of mining operations their in.
M.C. Metha (2) v/s Union of India
In that case the petitioner brought public interest litigation against Ganga Pollution requiring the court to issue appropriate directions for the prevention of Ganga water pollution. He claimed that although parliament and the state legislatures have passed several laws imposing duties on the Central and State Boards constituted under the Water prevention and control of pollution Act and the municipalities under the U.P. Nagar Mahapalika Adhiniyam, they have just remained on paper and no proper action had been taken pursuant thereto. The Supreme Court held that the petitioner although not a riparian owner was entitled to move the court for the enforcement of various statutory provision which implies duties on the municipal and other authorities. He is a person interested in protecting the lives of the people who make use of the Ganga water. The nuisance caused by the pollution of the river Ganga is apublic nuisance which is wide spread and affecting the lives of large number of persons and therefore any particular person can take proceedings to stop it as distinct from the community at large.
According, the court directed the Kanpur Nagar Mahapalika to submit its proposals for effective prevention and control of water pollution within 6 months to the Board constituted under the Water Act. It also directed the Mahapalika to get the dairies shifted to a place outside the city and arrange for removal of wastes accumulated at the dairies so that it may not reach the river Ganga, to lay sewerage line wherever it is not construed, to construct public latrines and urinals, for the use of poor people free of charge, to ensure that dead bodies or half burnt bodies are not thrown into the river Ganga and to take action against the industries responsible for pollution ,licenses to establish new industries should be granted only to those who make adequate provisions for the treatment of trade effluent flowing out of the factories.
Article 21 includes freedom from Noise:
Article 21 every person has the right to live with a noise free atmosphere which cannot be defeated by exercise of right under Article 19 (1) (a) of the constitution. In the modern days noise has become one of the major sources of pollution and it has a serious effect on human health. It affects sleep, hearing, and communication, mental and physical health. The court suggested that there is need to create general awareness towards the hazardous effect of noise pollution.
8. Right to education
In a land mark judgment in Mohini Jain v/s State of Karnataka, popularly known as the "capitation Fee case" the Supreme Court has held that the right to education is a fundamental right under Article 21 of the constitution which cannot be denied to a citizen by charging higher fee known as the capitation fee. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. In this case the petitioner Miss Jain of Meerut, U.P had challenged the validity of a Notification issued by the government under the Karnataka Educational Institutions Act, 1984 which was passed to regulate tuition fee to be charged by the private Medical Colleges is the state. Under the Notification the tuition fee to be charged from students was as follows:
1. candidates admitted against government seats Rs. 2,000 per year,
2. the Karnataka students Rs. 25,000 per annum
3. Students from outside Karnataka Rs. 60,000per annum.
The petitioner was denied admission on the ground that she was unable to pay the exorbitant tuition fee of Rs. 60,000 per annum.
Finally the court held that the right to education at all level is a fundamental right of citizen under Article 21 of the constitution and charging capitation fee for admission to educational institutions are illegal and amounted to denial of citizen's right to education and also violative of Article 14 being arbitrary, unfair and unjust.
9. Prisoner's right:
Article 21 of the constitution given protection to the prisoners. It is available even to convicts in jails. The convicts are not by mere reason of their conviction deprived of all the fundamental rights which they otherwise possess. Following the conviction of a convict is put into the jail he maybe deprived of fundamental freedoms like the right to move freely throughout the territory of India or the right to 'practice' a profession. But the constitution guarantees to them other freedom like right to acquire, hold and dispose of property for the existence of which detention can be no impediment.
10. Right to free legal aid:
The right to free legal aid is guaranteed fundamental rights under Article 21. Article 39A provides "equal justice" and "free legal aid". It means justice according to law. In a democratic policy, governed by rule of law, it should be the main concern of the state to have a proper legal system. Article 21 says a duty on the state to afford grants-in-aid to recognized private law colleges in the state of Maharastra, similar to the faculties, viz. Art, Science, Commerce etc.
In State of Maharastra v/s Manubhai pragaji vashi
In this case the court held that in order to provide 'the free legal aid' it is necessary to have well-trained lawyers in the country. This is only possible if there are adequate number of law colleges with necessary infrastructure, good teachers and staff. Since the government is unable to establish adequate number of law colleges, it is the duty of the government to permit establishments of duly recognized private law colleges and afford them grants-in-aid on similar lines on which it is given to government recognized law colleges. This would facilitate these colleges to function effectively and in a meaningful manner and turn out sufficient number of well-trained or properly equipped law graduates in all branches year after year. This will in turn enable the state and other authorities to provide free legal aid and ensure that opportunities for securing justice are not denied to any citizen on account of any disability.
11. Right to speedy trial:
It is a fundamental right is implicit in the guarantee of life and personal liberty enshrined in Article 21 of the constitution. Speedy trial is the essence of criminal justice.
In Abdual Rehman Antuley v/s R.S. Nayak
In that case the Supreme Court has laid down detained guidelines for speedy trial of an accused in a criminal case but it declined to fix any time limit for trial of offences. The burden lies on the prosecution to justify and explain the delay. The court held that the right to speedy trial flowing from Article 21 is available to accused at all stages namely the stage of investigation, inquiry, trial, appeal, revision and retrial.
12. Right against handcuffing:
It is prima facie inhuman and unreasonable, is over harsh and at the first flush, arbitrary. The court said that every under-trail who was accused of a non-boilable offence punishable with more than three years jail-term would be handcuffed, were violative of Articles 14, 19, 21 of the constitution. Handcuffing should be resorted to only when there is 'clear and present danger of escape' breaking out the police control and for this there must be clear material, not merely an assumption. in special circumstances the application of iron is not ruled out. But even where in extreme cases, handcuffing is to be put on the prisoner, the escorting authority must record simultaneously the reasons for ding so otherwise under Article 21 of the procedure would be unfair and bad in law.
In Sunil Guptha v/s State of M.P
In that case the petitioner were educated persons and social workers, who were remanded to judicial custody were taken to court from jail and back from court to the prison by the escort party handcuffed. They had staged a 'dharn' for a public cause and voluntarily submitted them selves for arrest .they had no tendency to escape from jail. in fact, they even refused to come out on bail but chose to continue in prison of the public cause. It was held that this act of the escort party was violative of Article 21 of the constitution.
13. Right against inhuman treatment:
The court held that the punishment of solitary confinement for a period from 8 to 11 months and putting bar fetters on the prisoner in jail for several days on flimsy ground like "loitering in the prison", "behaving insolently and in an uncivilized manner", "tearing of his history ticket" must be regarded as barbarous and against human dignity and hence violative of Articles 21, 19 and 14 of the constitution.
14. Right against delayed execution:
Delay in execution of death sentence exceeding 2 years would be sufficient ground to invoke the protection of Article 21 and the death sentence would be commuted to life imprisonment. The prolonged delay in the execution death sentence was an important consideration for invoking article 21for judging whether sentence should be allowed to be executed or should be converted into sentence of imprisonment.
In Triveni Ben v/s State of Gujarat
In that case Supreme Court has set the matter at rest and held that undue long delay in execution of the death sentence will entitled the condemned person to approach the court the court for conversion of death sentence into life imprisonment, but before doing so the court will examine the nature of delay and circumstances of the case. No fixed period of delay could be held to make the sentence o9f death inexecutable.
15. Protection against illegal arrest and custodial death:
A person is not liable to be arrested merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the police officer affecting the arrest that such arrest was necessary and justified.
Important points
1. An arrested person being held in custody is entitled, if he so request to have one friend, relative or other person who is known to him or likely to have an interest in his welfare told as far as is practicable that he has been arrested and where is being detained.
2. Police officer shall inform the arrested person when he is brought to the police station of this right.
3. An entry shall be required to be made in the Dairy as to who was informed of the arrest.
SAFEGUARD AGAINST ARBITRARY ARREST AND DETENTION
Article 22 of the constitution says that a person can be deprived of his life or personal liberty provided his deprivation was brought about in accordance with the procedure established by law. it deals with two separate matters
1. Persons arrested under the ordinary law of crimes
2. Persons detained under the law of "Preventive Detention".
Right of arrested persons under ordinary laws:
Clause (1) and (2) of article 22guarantee four rights on a persons who is arrested for any offence under an ordinary law:
(A) The right to be informed as soon as may be of ground of arrest
This is necessary to enable the arrested person to know the grounds of his arrest and to prepare for his defense. Article 22 is in the nature of a directive to the arresting authorities to disclose the grounds of arrest of a person immediately.
(B) The right to consult and to be represented by a lawyer of his own choice.
If a person is arrested he must be afforded opportunity to consult lawyer of his own choice and if he is unable to employ a counsel it is the duty of court to employ a lawyer for him. It is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services ion account of reasons such as poverty, indigence or incommunicado situation, to have free legal services provided to him by the state and the state is under constitutional duty to provide a lawyer to such person if the needs of justice so require.
(C) The right to be produced before a magistrate within 24 hours:
The arrested person must be produced before the magistrate within 24 hours of his arrest. It can be extended beyond 24 hours only under the judicial custody.
(D) The freedom from detention beyond the said period except by the order of the Magistrate.
It means that if there is necessity of detention beyond 24 hours it is only possible under judicial custody. Article 22 (1) and (2) the arrested person has a right to be produced before the nearest magistrate within a period of 24 hours. This would enable the arrested person to get a speedy trial. This means that if there is failure to produce the arrested person before the nearest magistrate within 24 hours it would make the arrest illegal.
Preventive Detention laws
Clause (4) to (7) of Article 22 provide the procedure which is to be followed if a person is arrested under the law of preventive detention, there is no authoritative definition of the term preventive detention in Indian law. The word preventive detention is used in contra-distinction to the word punitive. It is not a punitive but preventive measure. While the object of preventive detentions not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it.
Preventive Detention Acts:
The first preventive detention Act was enacted by the parliament on 26th February, 1950.the objective of the Act was to provide for detention with a view to preventing any person from acting in a manner prejudicial to the defense of India, the relation of India with foreign powers, the Security of India or a state of the maintenance of public order, the maintenance of supplies and services essential to the community. The Act purely a temporary measure and was to cease to have effect on 1st April, 1951. But its life was extended from time to time till it lapsed on December 31 1969.but the preventive detention laws was revived in the form of maintenance of Internal Security Act 1971.
Important points
1. That immediately after detention his kith and kin must be informed in writing about his detention and his place of detention.
2. The detent must be detained in a place where he habitually resides unless exceptional circumstances require detention at some other place.
3. That detenu is entitled to his book and writing materials, his own food, visits from friends and relatives.
4. He must be kept separate from those convicted
5. No treatment of a punitive character should be meted out to him and he should be treated according to the civilized norms of human dignity.
Constitutional Safeguard against preventive detention laws
Clause (4) to (7) guarantee the following safeguards to a person arrested under preventive detention law:
1. Review by Advisory Board:
Clause (4) provided that no law providing for preventive detention shall authorize the detention of a person for a longer period than 'three months' unless an Advisory Board constituted of person who are or have been qualified to be High Court Judge has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention.
2. Grounds of detention must be communicated to the detenu:
Article 22 (5) gives two rights to the detenu
A. The authority making the order of detention must as soon as may be communicating to the person detained the grounds of his arrest.
B. To give the detenu the earliest opportunity of making a representation against the order of detention, that is to be furnished with sufficient particulars to enable him to make a representation.
3. Right of Representation:
The detenu should be given the earliest opportunity of making a representation against detention order. It means that the detenu must be furnished with sufficient particular or grounds of his detention to enable him to make a representation which on being considered may give him relief. The reason why grounds are required to be communicated 'as soon as possible' is two-fold:
1. It acts as a check against arbitrary and capricious exercise of power.
2. The detenu has to afforded an opportunity of making a representation against the order of detention.
Right against Exploitation
Article 23 and 24 of the constitution provides that prohibition of traffic in human beings and forced labour. Traffic in human beings means selling and buying men and women like goods and includes immoral traffic in women and children for immoral or other purposes.
Article 23 protects the individual not only against the state but also private citizens. It imposes a positive obligation on the state to take steps to abolish evils of traffic in human beings. And it prohibits the system of bonded labour because it is a form of force labour.
Peoples Union for Democratic Rights v/s Union of India
In that case the Supreme Court considered the scope and ambit of Article 23 in detail. Beggar is a form of forced labour under which a person is compelled to work without receiving any remuneration. Every form of forced labour "bager" or other forms is prohibited by Article 23 and it makes no difference whether the person who is forced to give his labour or service to another is paid remuneration or not. Even if remuneration is paid, labour or services supplied by a person would be hit by this Article, if it is forced labour.
Ex: Labour supplied not willingly but as a result of force or compulsion.
Thus a person who provides labour or service to another for remuneration which is less than minimum wage amounts to forced labour under Article 23.
Prohibition of employment of children in factories etc.
Article 24 of the constitution prohibits employment of children below 14 years of age in factories and hazardous employment. This provision is certainly in the interest of public health and safety of life of children. Children are assets of the nation. This is why Article 39 of the constitution imposes upon the state an obligation to ensure that the health and strength of workers, men and women, and the tender age of the children are not abused and that citizens are not forced by economic necessary to enter avocations unsuited to their age or strength.
M.C. Mehta v/s State of Tamil Nadu
In that case the Supreme Court has held that children below the age of 14 years cannot be employed in any hazardous industry, mines or other works and has laid down exhaustive guidelines how the state authorities should protect economic, social and humanitarian rights of millions of children, working illegally in public and private sections. The matter was brought before the court by a public spiritual lawyer Mr. M.C. Mehta by way of public interest litigation under Article 32 of the constitution.
RIGHT TO FREEDOM OF RELIGION
Meaning of secular state:
The 42nd amendment Act 1976, has inserted the word 'Secularism' in the preamble. It is the ancient doctrine in India that the state protects all religious but interferes with none. It neither anti - God nor pro-God, it treats alike the devout, the antagonistic and the atheist. It eliminates God from the matters of the state and ensures that no one shall be discriminated against on the ground of religion.
Secularism is a basic feature of the constitution. The state treats equally all religious denominations. Religion is a matter of individual faith and cannot be mixed with secular activities. Secular activities can be regarded by the state by enacting a law. Secularism means developing, understanding and respect fro different religions.
Meaning of religion
The term religion is a matter of faith with individuals or communities and it is not necessarily theistic. A religion has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conductive to their spiritual well being. But it will not be correct to say that religion is nothing else but a doctrine of might. Article 25 (1) of the constitution says that a person has a two fold freedom:
1. Freedom of conscience
2. Freedom to profess, practice and propagate religion
The freedom of conscience is absolute inner freedom of the citizen to mould his own relation with God in whatever manner he likes. When this freedom becomes articulate and expressed in outward form it is to profess and practice religion. To practice religion is to perform the prescribed religious duties, rites and rituals, and exhibit his religious beliefs and ideas by such acts as prescribed by religious order in which he believes. And propagate means to spread and publicize his religious view for the edification of others.
National Anthem Case
In that case the Supreme Court has held that no person can be compelled to sing the National Anthem if he has genuine, conscientious religious objection. In the instant case, three children belonging to the "Jehova's witnesses" of the Christian community were expelled from the school for refusing to sing the National Anthem. They challenged the validity of their expulsion on the ground that it was violative of their fundamental right under Article 25 of the constitution. A circular issued by the Director of public Instructions had made it compulsory for all children in school to sing the National anthem. They had stood up respectively when the National anthem was being sung every morning at their school but they did not join in the singing of it. They refused to sing the National Anthem is according to them it was against the tenets of their religious faith which did not permit them to join in any rituals except if it be in their prayer to Jehova, their God.
The Kerela high court held that was their fundamental duty under constitution to sign the National anthem. It held that if the pupil belonging to the religious group refused to participate in the singing of the National Anthem it would have a very bad influence on the other pupils and Head Mistress was therefore within her right not to shoeing unqualified respect to the National Anthem.
On appeal, the Supreme Court reversed the High Court decision and held that there is no legal obligation in India for a citizen to sing the National Anthem. The right under Article 25 (1) cannot be regarded by executive instructions which had no force of law. The court said that by standing up while the national anthem was being sung the children had shown proper respect to the National anthem and had thus not violated the fundamental duties laid down in Article 51-A of the constitution. Their conduct did not amount to an offence under the Preventive of Insults of National Honour Act, 1971as they did not prevent the singing of the National anthem nor caused disturbance to the assembly in the singing of the National Anthem. Accordingly, the court directed the authorities to re-admit the children in the school and to allow them to pursue their study.
Noise pollution in the name of Religion not allowed:
In the exercise of the right to religious freedom under Article 25 and 2, no person can be allowed to create noise pollution or disturb the peace of others. The custom of religious prayer thought the use of loudspeakers is not an essential element of any religion. A persons religious freedom is subject to" public order, morality and h3alth".even if there is any such religious practice it cannot be used to violate right to others or to disturb their peace.
Restrictions on Freedom of Religion:
1. Religious liberty subject to public order, morality and health:-
In the name of religion no act can be done against public order, morality and health of the public. This freedom is also subject to the other provisions of this part. The freedom to practice religion cannot affect the exercise of these freedoms by others. These rights are subjects to the reasonable restrictions under clause (2) of Article 19.
2. Regulation of economic, financial political and secular activities associated with religious practices:-
Clause (2) (a) of this Article says that the freedom to practice extends only to those activities which are the essence of religion. It does not cover secular activities which do not form the essence of religion. The sacrifice of cows on the occasion of Bakrid was an essential part of his religion and therefore the state law forbidding the slaughter of cows was violative of his right to practice religion. The court held that the sacrifice of cow on the Bakrid day was not an essential part of Mohammedan religion and hence could be prohibited by state under clause (2) (a) of Article 25.
3. Social welfare and social reforms:-
Clause (2) (b) of Article 25 the state is empowered to make laws for social welfare and social reforms. Under this clause the state can eradicate social practices and dogmas which stand in the path of the country's onwards progress. Such laws do not affect the essence of any religion. This clause declares that where there is conflict between the need of social welfare and reforms and religious practice, religion must yield. Social evils cannot be practiced in the name of the religion.
Freedom to manage religious affairs:-
Article 26 says the constitution says that, subject to public order, morality and health every religious denomination of any section it shall have the following rights:
1. To establish and maintain intuitions for religious and charitable purposes:-
Under clause (a) of Article 26 every religious denomination has right to establish and maintain institutions for religious and charitable purposes.
2. Right to manage matters of religion: -
Under Article 26 (b) a religious denomination or organization is free to manage its own affairs in matters of religion. The state cannot interfere in the exercise of this unless they run counter to public order, health or morality. The term matters of religion includes religious practices, rites and ceremonies considered essential for practice of religion.
The places of worship like Temples, Mosques, Gurudwaras cannot be used for hiding criminals or carrying on anti-national activities. They cannot be used for political purpose. The state has power under Article 25 (1) and clause (2) to prohibit these activities the places of worship. The state cannot be a passive spectator when exercise of right of religion threatens the public order, morality public health of the community.
3. Right to administer property owned by denomination:-
Under clauses (c) and (d) of Article 26areligiousdenomination has the right to acquire and own property and to administer such property in accordance with law. The right to administer property owned by a religious denomination is a limited right, and it is subject to the regulatory power of the state in clause (2) (a) of Article 25 and also any general property law.
Under clauses (c) and (d) of Article 26, are confined to the existing rights to administer its property where they had already been vested in a religious denomination. Clauses (c) and (d) do not create any new rights but they simply protect the continuance of the existing rights. The existing rights to administer its property by a religious denomination cannot be destroyed or taken away completely. It can only be regulated by law with a view to improve the administration of property for the better utilization of the endowment property. If the right to administer property had never vested in the denomination or had been validly surrendered by it or had otherwise been lost, Article 26 will not create any such right in religious denomination.
Prohibition of religious instruction in state-aided institution:-
Article 28(1) no says that no religious instruction shall be imparted in any educational institution wholly maintained out of state funds. But this clause shall not apply to an educational institution which is administered by the state but also has been established under any endowment or trust which requires that religious instruction shall be imparted in such institutions. Article 28 mentions four types of educational institutions.
1. Institutions wholly maintained by the state:
2. Institutions recognized by the state
3. Institutions that are receiving aid out of the state fund.
4. Institutions that are administered by the state but are established under any trust or endowment.
CULTURAL AND EDUCATIONAL RIGHTS
Article 29 and 30 of the constitutional speaks about cultural and educational rights. Article 29 (1) guarantees to any section of the citizens residing in a any part of India having a distinct language, script or culture of its own, the right to conserve the same ,i. e. language, script or culture.
Right of minorities to establish and manage Educational Institutions
Article 30 (1) guarantees to all linguistic and religious minorities the 'right to establish' and the right to administer educational institutions of their own choice. The right is conferred by this clause on two types of minorities-religious and linguistic minorities. The right conferred upon the above minorities is to establish and administer educational institutions of their choice.
Clause (2) of Article 30 prohibits the state from making discrimination in the matter of grant of aid to any educational institution on the ground that it is managed by a religious minority or linguistic minority.
In Bramchari Sidheswar v/s State of West Bengal
In that case popularly known as the Ram Krishna Mission case the supreme Court has held that the Ram Krishna Mission established by Swami Vivekananda to propagate Vedanta values as expounded by Ramakrishna is not a minority religion separate and distinct from Hindu Religion, but a religious sect or denomination of Hindu religion and therefore not entitled to claim the fundamental right under Article 30 (1) of the constitution of establishing and administering educational institutions of their choice. Sri Ramakrishna could be regarded as a religious teacher who expounded, practiced and preached the principles of Vedanta on which Hindu religion is founded.
Finally court which h had held that Ramakrishna Mission being a religion distinct and separate from Hindu religion was a minority in West Bengal based on religion.
Power of government to regulate minority run educational institution
The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining educational character and content of minority institutions similarly regulatory measures are necessary for ensuring orderly, efficient and sound administration.
Right to recognition or affiliation not a fundamental right
There was no fundamental right to minority to affiliation to a university. When a minority institution applies to a university to be affiliated, it expresses its choice to participate in the system of general education and course of instruction prescribed by that university. It agrees to follow the uniform course of study. Affiliation is for regulating the educational character and content of the minority institution. The right under Article 30 (1) is subject to Article 29 (2) which says that no citizen shall be denied admission into any educational institutions maintained or any of them.
Right to establish and administer minority educational institutions
In T.M.A. Pai Foundation v/s State of Karnataka
In this case a number of petitions were filed by the management of minority educational institutions challenging the unnecessary control exercised by government through various rules and regulations and hampering their progress of quality education. They contended that the right which is enshrined in Article 30 gives them full autonomy in running their institutions.
Finally Supreme Court held that state governments and universities cannot regulate the admission policy of unaided educational institutions run by linguistic and religious minorities, but state governments and universities can specify academic standards.
UNIT - II
2.1 DIRECTIVE PRINCIPLES OF STATE POLICY
Constitutional Article 36 to 51 says Directive principles of state policy. It contained in part IV of the constitution set out the aims and objectives to be taken up by the states in the governance of the country. Today we are living in an era of a welfare state which has to promote the prosperity and well-being of the people. The directive principles lay down certain economic and social policies to be pursued by the various governments in India.
Classification of the Directives
The directives maybe classified into the following groups.
1. Social and Economic Charter
1. Social order based on justice
Article 38(1) provides that the state shall strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice. It means social, economic and political justice4. It shall inform all the institutions of national life. Constitutional 44th amendment Act, 1978 inserted a new directive principle in Article 38 of the constitution which provides that the state shall, in particular, strive to minimize inequalities in income and endeavor to eliminate inequalities in states.
The concept of social justice consists of diverse principles essential for the orderly growth and development of personality of every citizen. Social justice is then an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic devise to mitigate the sufferings of the poor, weak, dalits tribes and deprived sections of the society and so elevate them to level of equality to live a life with dignity of person. The aim of social justice is to attain substantial degree of social, economic and political equality which is the legitimate expectation and constitutional goal.
2. Principles of policy to be followed by the state for securing economic justice
Article 39specifically requires the state to direct its policy towards securing the following principles:
1. Equal right of men and women to adequate means of livelihood.
2. Discrimination of ownership and control of the material resources of the community to the common good.
3. To ensure that the economic system should not result in concentration of wealth and means of production to the common detriment.
4. Equal pay for equal work for both men and women.
5. To protect health and strength of workers and tender age of children and to ensure that they are not forced by economic necessity to enter avocations unsuited to their age or strength.
6. That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
2. Social Security Charter
This charter divided into eight categories.
1. Participation of workers in management of Industries
Article 43-A requires the state to take steps, by suitable legislation or in any other way to secure the participation of workers in the management of undertakings, establishments or other organizations engaged in any industry.
2. Right to work, education and public assistance in certain cases
Article 41 directs the state to ensure the people within the limit of its economic capacity and development:
A. Employment
B. Education
C. Public Assistance in cases of unemployment, old age sickness and disablement and in other cases of underserved want.
3. Just and human conditions of work
Article 42 directs the state to make provision for securing just human conditions and for maternity relief.
4. Living wage for workers
Article 43 requires the state to try to secure by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities, and in particular, the state shall endeavor to promote cottage industries on an individual or co-operation basis in rural areas.
5. Provision for early childhood care and education to children below the age of six years
Article 45 required the state to make provision within 10 years of free and compulsory education for all children until they complete the age of 14 years. The object was to abolish illiteracy from the country.
6. Duty to raise the standard of living and improvement of health
Article 47 imposes duty upon the state to raise the level of nutrition and the standard of living of its people and the improvement of public health.
7. Promotion of educational and economic interest of weaker sections
Article 46 enjoins the state to promote with special are the education and economic interest of the weaker sections of the people, and in particular of the Scheduled Casts and Scheduled Tribes, and to promote them from social injustice and of forms of exploitation.
8. Equal justice and free and legal aid to economically backward classes
Article 39-A directs the state to ensure that the operation of the legal system promote justice, on a basis of equal opportunities and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
3. Community Welfare charter
Community welfare charter is divided into seven charter
1. Uniform Civil Code
Article 44 requires the state to ensure to secure for the citizens a uniform civil code throughout the territory of India. This Article enjoins the state to secure a uniform civil code which, accordingly to the court is imperative for both protection of the oppressed and promotion of national unity and integrity. The above directions was given by the Court while dealing with case where the question for consideration was whether a Hindu husband married under Hindu law, after conversion to Islam, without dissolving the first marriage, can solemnize a second marriage. The court has held that such a marriage will be illegal and the husband can be prosecuted for bigamy under Section 494 of I.P.C.
All marriages must be registered: First step towards uniform civil code
Supreme Court has held that all marriages, irrespective of their religion, be compulsorily registered. The benefits of this ruling are as follows.
1. Prevent child marriage
2. Check bigamy and polygamy
3. Held women to exercise their rights under marriage - maintenance, custody of children.
4. Enable widows to claim inheritance
5. Deter husbands from deserting their wives.
2. Organization of agriculture and animal husbandry
Article 48 directs the state to take st4eps to organize agriculture and animal husbandry on modern and scientific lines. In particular5, it should take steps for preserving and improving the breeds and prohibiting the slaughter of cows and calves and other milch and draught cattle.
3. Promotion and improvement of forests and wild life
Article 48-A requires the state to take steps to protect and improve the environment and to safeguard the forests and wild life of the country.
4. Protection of monuments and places and objects of national importance
Article 49 requires the state to protect very monument or place or object of artistic or historic interest, to be of national importance from spoliation, disfigurement, destruction, removal disposal or export.
5. Separation of Judiciary from executive
Article 50 requires the state to take step to separate the judiciary from the executive in the public services of the state. To promote the rule of law, this is very essential.
6. Promotion of International peace and security
Article 51 provides that the state should strive to
A. Promote international peace and security
B. Maintain just and honourable relations between nations.
C. Foster respect for international law and treaty obligations in the dealings of organized peoples with one another.
D. Encourage settlement of international disputes by arbitration.
7. Organization of village panchayats
Article 40directs the state to take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. The object of this provision is to introduce democracy at the grass roots. These panchayats are expected to be the training grounds for the development of democratic traditions.
Relationship between Directive Principles and Fundamental rights
1. According to Article 37, the directive principles, though they are fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making law, but they are expressly made non-justifiable.
2. The directive principles of state policy have to conform and to run as subsidiary to the chapter on fundamental rights.
3. Though these directives are not enforceable by the courts, yet these principles have been declared to be fundamental in the governance of the country.
4. There is no antithesis between the fundamental rights and directive principles. They are meant to supplement one another. Both are conscience of our constitution.
In Keshavananda Bharati v/s State of Kerala
In that case the Supreme Court has said that "fundamental rights and directive principles aim at the same goal of bringing about a social revolution and establishment of a Welfare State and they can be interpreted and applied together. They are supplementary and complimentary to each other. It can well be laid down the means by which that goal is to be achieved.
2.2 Fundamental Duties
Part IV - A of the constitutional Article 51-Awas added by the 42nd amendment, 1976. Imposes following duties to his citizens.
1. To abide by constitution and respect its ideal and institutions, the National Flag and National Anthem.
2. To cherish and follow the noble ideals which inspired our national struggle for freedom.
3. To uphold and protect the sovereignty, unity and integrity of India.
4. To defend the country and render national service when called upon to do so.
5. To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.
6. To values and preserve the right heritage or our composite culture.
7. To promote and improve the natural environment including forests, lakes rivers and wildlife, and to have compassion for living creature.
8. To develop the scientific temper, humanism and the spirit of inquiry and reform.
9. To safeguard public property and to abjure violence.
10. To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievements.
2.3 Parliamentary government -The Union Executive
The President
Article 52 of the constitution says that there shall be a President of India. He is the head of the State. The executive pow4er of the union, Article 53 says, shall be vested in the President and it shall be exercised by him in accordance with the constitution either directly or through officers subordinates to him.
Qualifications
Article 58 lays down the qualifications of the President of India.
1. He must be a citizen of India.
2. He must have completed the age of 35 years.
3. He must b4e qualified for election as a member of the House of the People.
4. He must not hold any office of profit under the government of India, or government of any state or under any local or other authority subject to the control of any of the said governments.
Condition of President's office
Article 59 says that the president cannot be a member of either house of parliament or of a house of the legislature of any state. If a member of either house of parliament or of a state legislature is elected president he shall be deemed to have vacated his seat in that house on the date on which he enters upon his office as president.
Election of President
Article 54 provides that the president shall be elected by an electoral college consisting of:
1. The elected members of both houses of parliament.
2. The elected member of the legislative assemblies of the states.
Oath by the president
Article 60 of the constitution says that before entering upon his office, the president has to take an oath or an affirmation in the presence of the Chief Justice of India, or, in his absence, the senior most Judge of the Supreme Court.
Term of office
Article 56 says that the president shall hold office for a term of five years from the date on which he enters upon his office. Even after the expiry of his term he shall continue to hold office until his successor enters upon his office.
Privilege of the president
Article 361 of the constitution guarantees the followings privileges to the president
1. The president shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise of those powers and duties.
2. No criminal proceedings whatsoever shall be institute and continued against the president in any court during the term of office.
3. No process for the arrest or imprisonment of the president shall be issued from any court during his term of office.
4. No civil proceedings in which relief is claimed against the president shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity whether before or after he had entered upon his office until:
a) A notice in writing has been given to the president.
b) Two months have passed after the service of such notice.
c) The notice states the nature of proceedings, the cause of action, the name, residence and description of the party taking the proceedings and the relief claimed.
The vice-President
Article 63 says vice-president. He is elected by the members of both houses of parliament at a joint session by secret ballot in accordance with the system of proportional representation by means of single transferable vote. The qualifications of the Vice-President are the same as those of the President except that he must eligible for election to the Rajya Sabha. The term of the Vice-President is five years. He may resign from his office b4efore the expiry of the normal term. He may also be removed by a resolution of the Rajya Sabha passed by a majority of all the members of the House and agreed to by a majority of the Loka Sabha.
Powers and Functions of the Vice-President
He shall be ex officio chairman of the Rajya Sabha. He acts as president, until a new president is elected. When a vacancy occurs in the office of the president by reason of his death, resignation or removal or otherwise, the vice-president shall act as president until the date on which a new president is elected to fill such vacancy.
Powers and functions of the President
He exercises the following powers.
1. Executive power
He is the head of the executive. All executive functions are executed in the name of the President. Followings are appointed by the president.
a) Prime Minister and on his advice other Ministers of the union.
b) The Judges of Supreme Court and High Courts
c) The Governors of the state.
d) The Attorney General
e) The Controller and Auditor-General
f) The Members of the Finance Commission and official Commissioners.
g) Special officer for Scheduled Castes and Scheduled Tribes.
The above mentioned officialsholds their office during the pleasure of the president.
2. Military powers
The president is the supreme commander of the defence forces of the country. He has powers to declare war and peace. The military power of the President is thus subordinate to his executive power which is exercisable by him on the advice of the Cabinet.
3. Diplomatic Powers
The President sends and receives Ambassadors, and other diplomatic representatives. All treaties and international agreements are negotiated and concluded in the name of the President though subject to ratification by Parliament.
4. Legislative powers
He has power to summon and prorogue the parliament and he can dissolve the Lok Sabha. He is bound to summon parliament within six months from the last sitting of the former session. If there is a conflict between the two Houses of parliament over an ordinarily Bill he can call a joint session of both houses, to resolve the deadlock. At the commencement of each session the president addresses either house of parliament of a joint session of a parliament.
Every bill passed by the both houses of parliament is to be sent to the president for his assent. He may give his assent to the bill, or withhold his assent or in the case of a bill other than a money bill, may return It to the house for reconsideration on the line suggested by him. If the bill is again passé by both the houses of the parliament with or without amendment, he must give his assent to it when it is sent to him for the second time.
He nominates 12 members of the Rajya Sabha from among persons having special knowledge or practical experience of Literature, Science, Art and Social Services. He is authorized by the constitution to nominate two Anglo-Indians to the Loka Sabha.
5. Ordinance-making power of the President
Article 123 of the constitution says that the ordinance-making power of the President. If a t any time, when both houses of the parliament are not in session and the president is satisfied that circumstances with which render it necessary for him to take immediate action, he may issue such ordinance as the circumstances appear too him to require. Such ordinances must be laid before both houses of parliament and shall cease to operate, at the expiry of six weeks from the date of re-assembly of parliament, unless a resolution disapproving it is passed by the both house before the expiration of six weeks.
President may, if he likes, withdraw such an ordinance at any time. This power is exercised by the President on his own satisfaction. The satisfaction is not the personal satisfaction of the President.
6. Pardoning power
Article 72 of the constitution says that6 president has power to grant pardons, reprieves, respites or remissions of punishments or to suspend, remit or commute the sentence of any person convicted of any offences by court martial and an offence against any law relating to a matter to which the executive power of the union extends or in all cases in which the sentence is one of death.
1. Commutation
It means exchange of one thing for another.
Ex: for rigorous imprisonment -simple imprisonment.
2. Remission
It means reduction of the amount of sentence without changing its character.
Ex: a sentence of one year may be remitted to six months.
3. Respites
It means awarding a lesser punishment on some special grounds.
Ex: the pregnancy of a woman offender.
4. Reprieve
It means temporary suspension of death sentence.
Ex: pending a proceeding for pardon or commutation.
In Kehar singh v/s Union of India
In that case the Supreme Court has examined in detail the scope of the President's pardoning power under article 72. The petitioner Kehar Sing was convicted of an offence of murder for assassinating the P. M. Smt Indra Gandhi and sentenced to death which was confirmed by the High Court and his appeal to the Supreme Co0urt was also dismissed. Thereafter, he presented a petition to the president for the grant of pardon. He prayed that his representatives may be allowed to see the president personally in order to explain his case. The president rejected his petition on the advice of the union government without going into the merits of the decision of the Supreme Court confirming the death sentence.
The court held that while exercising his pardoning power it was open to the president to scrutinize the evidence on the record and come to a different conclusion both on the guilt of Kehar Singh and the sentence imposed upon him. The president does not amend or modify or supersede the judicial record. The order of the President cannot be subjected to judicial review on its merits.
7. Emergency powers
The emergencies envisaged under the constitution are of three kinds.
A. Emergency arising out of war, external aggression or armed rebellion.
B. Emergency due to failure of constitutional machinery in the state.
C. Financial emergency
If the President is satisfied that the security of India is threatened by foreign attack, armed rebellion or war of if either on the receipt of report of the Governor of the state or otherwise hi is satisfied that a situation has arisen in which the Government of state cannot be carried on in accordance with the provisions of the constitution. A proclamation of emergency may be revoked by a subsequent proclamation. Such a proclamation must be laid before each house of parliament and ceases to operate at the expiration of one month unless approved by the two houses.
The President may, during the period of emergency suspend the right to move the courts for the enforcement of fundamental rights.
The Council of Ministers
Article 74 (1) provided that there shall be a council of Ministers with the Prime Ministers its head to aid and advise the President in the exercise of his functions. The total number of ministers, including the Prime Minister, in the Council of Ministers shall not exceed 15 per cent of the total number of member of the House of people.
Appointment of Prime Minister
Article 75(1) says that "the Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister. Council of Ministers shall be collectively responsible to the house of the people.
In the matter of the Prime Minister the President should follow the following principles.
1. He should invite the leader of the opposition if the government is defeated in the house on a no-confidence motion.
2. He should call the leader of the coalition formed before the elections.
3. He should invite the leader of the largest single party in the house.
4. He should invite the leader of the coalition or alliance formed after the election.
Principles of collective responsibility
The basic principles of parliamentary form of government are the principle of collective responsibility. Article 75 (3) provides that the council of ministers shall be collectively responsible to the Loka Sabha. The principle of collective responsibility means that the council of ministers is a body responsible to the Lok Sabha for the general conduct of affairs of the government. The council of ministers work as a team and all decisions taken by the cabinet are the joint decisions of all its members. No matter whatever be their personal differences of opinion within the cabinet, but once a decision has been taken by it, it is the duty of each and every minister to stand by it and support it both in the legislature and outside.
Principles of individual responsibility
The principle of individual responsibility to each minister to the parliament also works. Every minister is responsible for the acts of the officers o his department. He has to answer question regarding the affairs of his department in the parliament. He cannot throw the responsibility of his department either on his officials or another minister. If the minister has taken action with the approval of the cabinet the principles of collective responsibility applies and the whole cabinet should support approval, the cabinet may and may not support him. If the cabinet does not support his action, in that case, that the minister has go to and not the whole cabinet. But the cabinet cannot retain the minister at and the same time contend that the responsibility is all his.
THE PARLIAMENT
Composition of Parliament
Parliament of India consists of three organs.
A. the president
B. the council of states of Rajya Sabha
C. the house of people or Lok Sabha
The Rajya Sabha
The Rajya Sabha is the upper house of the union parliament. The maximum membership of the Rajya Sabha is fixed at 250 of whom 12 shall be nominated by the President, and the remainder 238 shall be representatives of States and the union territories.
The representatives of states are elected by the members of the legislative assemblies in accordance with the system of proportional representation by means of the single transferable vote. The 12 nominated persons are chosen by the President from amongst the persons having special knowledge or practical experience in literature, science, art and social service. The nominated members do not participate in the election of the President of India.
Chairman and Deputy Chairman of Rajya Sabha
The vice-president of India shall be the ex officio chairman of the Rajya Sabha. The Rajya Sabha shall also elect a member of the house to be deputy Chairman. When the office of Chairman is vacant or he is acting as the vice-chairman or discharging the function of president, his duties shall be performed by the Deputy Chairman. If the office of the Deputy Chairman is also vacant the duties shall be performed by such member of the Rajya Sabha as the President may appoint for that purpose.
Utility of the Rajya Sabha
1. A money bill can only be introduced in the Lok Sabha. The Rajya Sabha has no powers in respect of a money bill. A vote of non-confidence cannot be passed against the government by the Rajya Sabha. Even in case of ordinary bill if a deadlock is created between the two houses and the joint session is held then by virtue of the numerical strength the Lok Sabha will be also to pass that bill.
2. In a federal constitution a second chamber (Rajya Sabha) is a necessity and it plays an important role in matters of legislation and therefore, it should be retained.
3. It is considered useful because senior-politicians and statesmen might get an easy access in it without undergoing the ordeal of general election necessary for the member of Lok Sabha so that experience and talent is not to the country and they may discuss question of public interest.
4. It is a house where the states are represented keeping with the federal principles.
The Lok Sabha
The Lok SAabha is a popular house. Its members are directly elected by the people. The maximum number of its membership is fixed at 550 out of whom, not more than 530 are elected by the votes in the states, and not more than 20to represent the union territories. Article 331 the president may nominate not more than two memb3ers of the Anglo-Indian community if in his opinion that community is not adequately represented in the Lok Sabha. The representatives of states are elected directly by the people of the state on the basis of adult franchise. Every citizen of India, male or female who is not less than 18 years of age and is not disqualified on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, is entitled to vote at election of the Lok Sabha.
Tenure of Lok Sabha
The Lok Sabha shall continue for five years from the commencement of its first session. But while a proclamation of emergency is in operation the life of the House of People may be extended by law of parliament for one year at a time.
Speaker and deputy speaker of Lok Sabha
The Lok Sabhas elected two of its members as speaker and deputy speaker. When the office of speaker is vacant the deputy speaker performs the duties the speaker's office if the office of deputy speaker is also vacant, the duties of the speaker shall be performance by such member of the house as the president may appoint for the purpose.
The deputy speaker also acts as the speaker when the speaker is absent from any sitting of the house. If he is also absent, such person as may be determined by the rules of the house and if no such person is present such other person as may be determined by the house shall act as speaker.
Powers and functions of the Speaker
1. He presides over the meetings of the house, and regulates proceedings of the house.
2. He maintains decorum in the house during debates.
3. He interprets the rules of the Assembly and decides all points of order and questions of procedure.
4. He can ask a member to withdraw from the house for any violation of the rules of the house.
5. He can suspend him for the whole session if a member disregards the authority and rulings of the Chair.
6. He can adjourn or suspend the session of the house in case of grave disorder.
7. He certifies whether a bill is a money bill or not.
Qualification for membership of parliament
1. He must be a citizen of India
2. Not less than 30 years of age in case of the Rajya Sabha and not less than 25 years of age in the case of Lok Sabha.
3. Possessing such other qualification as may be prescribed by the parliament.
Disqualification for membership of parliament
1. If he hold any office or profit under central or state government other than an office declared by parliament by law not to disqualify its order.
2. If he is of unsound mind and a competent court has declared him to be so.
3. If he is an undischarged insolvent.
4. If he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign state.
2.3 Legislative Process - Functions of the Parliament
Followings are the functions of the parliament.
1. Ordinary Bill
Bill other than money bills it is called ordinary bill. The bill must be passed by both the houses of parliament and then only it can be sent for President's assent. It becomes a law when it is assented to by the President. Each house has laid down a procedure for the passage of a bill. A bill has to be pass through three stage, those are:
(A) First reading
At the first stage the bill is introduced in the house. At this stage no discussion takes place.
(B) Second reading
The second stage is the consideration stage when the bill is discussed clause by clause. At this stage amendments may be moved.
(C) Third reading
At the third reading stage a brief general discussion of the bill takes place and the bill is finally passed.
When the bill is passed by one house it so sent to the other house, where a similar procedure is repeated. If there is any disagreement between the houses over any bill, the bill cannot be deemed to have been passed. If two houses do not agree a deadlock is created. To resolve such a deadlock the constitution provides the method of joint sitting of the houses.
Joint session of the house
According to Article 108 when a bill passed by one house and sent to other house-
i. Is rejected by the house
ii. The house disagrees as the amendment to be made in the bill
iii. The other house does not pass the bill and more than six months have passed the president may summon a joint session of both the houses.
President's assent
No bill can become law without the assent of the president even if it has been passed by both houses of parliament. Article 111 says that when a bill has been passed by both houses of parliament, it is sent to the president for his assent. The president may either-
i. Give his assent to the bill
ii. He may withhold his assent
iii. He may return a bill if it is not a money bill, to the house for reconsideration with or without a message suggesting such amendments as he may recommend.
2. Money bill
Article 110(1) defines that a money bill is a bill with contains only provisions with respect to all or any of the following matters-
1. The imposition, abolition, remission, alteration or regulation of any tax,
2. The regulation of the borrowing of money or the giving of any guarantee by the government of India.
3. The custody of the consolidated fund or the contingency fund, the payment or withdrawal of money from such fund,
4. The appropriation of money out of the consolidated fund of India,
5. The declaring of any expenditure to be charged on the consolidated fund of India,
6. The receipt of money on account of the consolidated fund of India or the public account of the union or of a state,
If any question arises whether bill is a money bill or not the decision of the speaker of the Lok Sabha shall be final. A money bill can only be introduced in the Lok Sabha. It cannot be introduced in Rajya Sabha. A money bill can only be introduced with the recommendation of the President. However, no recommendation of the President is necessary for the moving of an amendment taking provision for the reduction or abolition of any tax.
After a money bill has been passed by the Lok Sabha, it is sent to the Rajya Sabha for its recommendations. The Rajya Sabha must return the bill to the Lok Sabha within 14 days from the receipt of the bill with his recommendation. The Lok Sabha may either accept or reject all recommendations of the Rajya Sabha. If the Lok Sabha accepts any of the recommendations by the Lok Sabha, the money bill shall be deemed to have been passed by the both houses with the amendments by the Rajya Sabha and accepted by the Lok Sabha. If a money bill passed by the Lok Sabha and sent to the Rajya Sabha deemed to have been passed by both houses at the expiration of the said period in the form in which it was passed by the Lok Sabha. Thus the Rajya Sabha can at most detain a money bill for 14 days only. If the Lok sabha rejects all the recommendations of the Rajya Sabha, the bill shall be deemed to have been passed by both houses in the form in which it was passed by the Lok Sabha. Then it will be presented to the President for his assent.
Privileges of the members of parliament and state legislature
Constitutional Article 105 deals with parliament and Article 194 deals with state legislature.
1. Freedom of Speech
There shall be freedom of speech in parliament and that no member of parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in parliament or any committee thereof. The Article gives absolute immunity from courts for anything said within the four walls of the house during the course of proceedings of the house or its committees.
2. Right of publication of its proceedings
Article 105 (2) provides that no member of parliament shall be liable to any proceeding in any court in respect of anything said or any vote given by him in parliament or any committee thereof, and no person shall be liable in respect of the publication by or under the authority of either house of parliament in any report, paper, votes or proceedings.
3. Freedom from arrest
A member of parliament cannot be arrested or imprisoned on civil proceedings within a period of 40 days before and after 40 days the session of parliament. if a member is arrested within this period he should be released so that he might be free to attend parliament. This privilege is available against civil arrest and does not extend to arrest or imprisonment on a criminal charge, or for contempt of court or to preventive detention.
In K. Anandan Nambiar v/s Chief Secretary Government of Madras
In this case the petitioner, who were members of parliament, were detained under Defense of India Rules, 1962. they challenged the order of detention on the ground that a legislature could not be detained so as to prevent him from exercising the constitutional rights as legislator while the legislative chamber to which he belonged was in session.
The court held that if a person was detained under a valid detention order, he could claim no special status higher than that of an ordinary citizen.
4. Right to exclude strangers from its proceedings and hold secret sessions
The members go into secret session to discuss some important matters. And they don't disclose what they discussed in parliament and state legislature. They can not allow strangers in proceedings hall.
5. Right to prohibit to publication of its reports and proceedings
The question was whether the publication by a newspaper of those parts of the speech of a member in house which were ordered to be expunged by the speaker constituted breach of privilege of the house. The Supreme Court held that the publication of expunged portion of speech constituted a breach of the privilege of the house. The house of parliament has definitely the power to prohibit publication of proceedings.
6. Right to regulate internal proceedings
The house has an exclusive right to regulate its own internal proceedings and to adjudicate upon such matters. The court will not interfere with takes place inside the house.
7. Right to punish members or outsiders for contempt
The house is power to punish a person whether member or stranger for its contempt or for breach of privilege. The house can issue a general or unspeaking warrant to arrest a person held guilty of committing contempt of the house and no court can go into its validity.
The State Executive
The Governor
The executive head is constitutional head, who is to act according to the advice of the council of ministers. The constitution of India, by Article 153, creates the office of the Governor.
Appointment of Governor
The governor of a state is appointment by the president of India under Article 155 of the constitution. He is neither elected by the direct vote to the people nor by an indirect vote by a specially constituted Electoral College as in the case with the President.
Qualification
According to Article 157 says
1. He must be a citizen of India
2. He must have completed the age of 35 years.
3. The Governor must not be a member of either house of parliament or of a house of the legislature of any state.
Tenure and Removal of the Governor
Article 156 of the constitution says that the Governor shall hold office during the pleasure of the President. The office of the Governor is fixed for five years from the date on which he enters upon his office. He may removed from his office at any time by the President. The Governor may resign his office by writing to the President.
Powers of the Governor
1. Executive power
The executive power of the state is vested in the Governor and is to be exercised by him directly or through officers subordinate to him. Article 162, says that the executive power of the state extends to matters with respect to which the legislature of the state has power to make laws. All executive actions of the government of a state shall be expressed to be taken in the name of the Governor. Orders and instruments made and executed in the name of the Governor. Under Article 166 (3) the Governor is authorized to make rules for the more convenient transaction of the business of the government of the state and for its allocation among Ministers.
2. Financial powers
A money bill cannot be introduced in the legislative assembly of the state without the recommendation of the Governor. No demand of grants can be made except on the recommendation of the governor. The Governor is required to cause to be laid before the house or houses of the legislature 'annual financial statements', known as Budget.
3. Legislature powers
The governor summons the houses or each house of the legislature of state to meet at such time and place as he thinks fit. However, six months must not lapse between the last sitting in one session and the first in the next session. He may prorogue the houses or either house and dissolve the legislative assembly. He has right to address the state legislature. No bill can become law without the assent of the President. He has right to reserve certain bills for the assent of the President. He nominates 1/6 of the members of the legislative council.
4. Pardoning power
Article 161 says that the governor shall have the powers to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to matters to which the executive power of the state extends.
K.M. Nanavathi v/s State of Bombay
In that case the petitioner was convicted or murder and was sentenced to imprisonment for life by the Bombay High Court. At the time of the decision of the High court the petitioner was in naval custody, soon after the judgment was pronounced by the High Court the petitioner made an application for leave to appeal to Supreme Court. On the same day the Governor issued an order under Article 161 suspending the sentence subject to this that the accused shall remain in the Naval Jail custody till the disposal of his appeal by the Supreme Court. The warrant issued for the arrest of the accused was returned unserved.
The court held that the power to suspend a sentence by the governor under Article 161 was subject 6to the rules made by the Supreme Court with respect to cases which were pending before it in appeal. The power of governor to suspend the sentence of a convict was bad in so much as it came in conflict with the rule of the Supreme Court which required the petitioner to surrender himself to his sentence.
The order of Governor could only operate until the matter became sub judice in the Supreme Court and it did become so on the filling of the petition for special leave to appeal. After the filling of such a petition and till the judicial process is over the power of the governor cannot be exercised.
5. Ordinance-making power
Article 213 of the constitution says ordinance making power of the governor. The governor can issue ordinance only when two conditions are fulfilled:
1. The Governor can only issue ordinances when the legislative assembly of a state is not in session or where there are two houses in a state both houses are not in session.
2. The Governor must be satisfied that circumstances exist which render it necessary for him to take immediate action. The court cannot question the validity of the ordinance on the ground that there was non necessity or sufficient ground for issuing the ordinance by the governor. The Governor exercises this power on the advice of the cabinet.
The Governor cannot issue an ordinance without the instructions from the President in the following cases:
1. A bill containing the same provision would have required the provisional sanction of the President for its introduction into the legislature.
2. An Act of the legislature of the state containing the same provisions would have been invalid unless having been reserved for the consideration of the President and had received the assent of the President.
Abuse of ordinance-making power by the Executive
In D.C. Wadhava v/s State of Bihar
In that case the petitioner a professor who carried a detailed research in the matter challenged the practice of the state of Bihar in promulgating and re-promulgating ordinances on a large scale without enacting them into Acts of the legislature and keeping them alive for an indefinite period of time. He pointed out that the governor of Bihar had promulgated 256 ordinances between 1967 and 1981 and all these time to time. Out of these 256, 69 were repromulgated several times and kept alive with the prior permission of the President of India.
The judgment of the court would go a long way in preventing the Government's 'manipulative practice' of circumventing the provisions of the constitution regarding maximum time limit for the continuance of ordinances.
Appointment of Chief Minister
He is appointed by the Governor under Article 164 of the constitution. The leader of the majority-party in the lower house should be appointed as the chief Minister. In normal circumstances the governor has no doubt as to who is the leader of the majority party in the lower house. But circumstances may arise when it may be doubtful as to who is the proper person, i. e., leader of the majority party in the house.
It is generally recognized that the Governor's discretion in appointing the Chief Minister should be guided on the following principles.
1. In the normal circumstances he should invite the leader of majority party.
2. He should invite the leader of the alliance or coalition or front if it was formed before the election and returned with majority.
3. He should invite the leader of the single largest party.
4. He should invite the leader of the front formed after elections.
2.4 The State Legislature
Composition of state legislature
1. Legislative Assembly (vidhana Sabha)
The legislative assembly in a state is popular house. The minimum number of seats of the legislative assembly is fixed at 60 and the maximum number is fixed at 500. The members of legislative assembly are chosen directly by the people on the basis of adult franchise from territorial constituencies in the state. In the legislative assembly of every state, seats will be reserved for the scheduled tribes and scheduled castes on the basis of population and also if the governor of a state is of opinion that the Anglo-Indian community is not adequately represented in the legislative assembly he may nominate such member of the community to the assembly as he considers appropriate.
The normal tenure of the legislative assembly of every state is of five years but it may dissolved earlier by the Governor. During the proclamation of emergency the life of the assembly may be extended by an Act of parliament for a period of one year at a time but in no case beyond a period of six months after the proclamation has ceased to operate.
2. Legislative council (Vidhan Parishad)
The total number of members in the legislative council of state having such a council shall not exceed one third of the total number of members in the legislative assembly of the state. The composition of the legislative council shall as follows:
1) 1/3 are to be elected by electorates consisting of members of Municipalities, district Boards and other local authorities in the state as parliament by law specify.
2) 1/12 are to be elected by electorates consisting of graduates of three years standing residing in the state.
3) 1/12 are to be elected by electorates consisting not lower in standard than secondary school.
4) 1/2 are to be elected by the members of the legislative assembly of the state from amongst persons who are not members of the assembly.
5) The remainder 1/6 are to be nominated by the Governor from persons having special knowledge or practical experience in respect of such matters as literature, science art, co-operative movement and social service.
The legislative council is not subject to dissolution but after every two years 1/3 its members retire. Like Rajya Sabha in the centre it is a permanent body.
Qualification of membership
1) He must be a citizen of India and subscribes before some persons authorized by the election commission an oath or affirmation prescribed in the Third schedule.
2) He must not less than 25 years of age in the case of the Legislature Assembly and not less than 30 years in case of the legislative Council.
3) He must possess much other qualification as may be prescribed by parliament by law.
Disqualifications for membership
1) If he holds any office of profit under the central or state government
2) If he is of unsound mind.
3) If he is an undischarged insolvent.
4) If he not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance of adherence of a foreign state.
5) If he is so disqualified by or under any law of parliament.
Speaker and Deputy Speaker
The speaker is the chief presiding officer of the legislative assembly of a state. He is elected by the member of the assembly from their own members. The assembly elects its deputy speaker also from its own members. The Deputy speaker performs the duties of the speaker when the speaker is absent or while the office of the speaker is vacant.
Both speaker and deputy speaker vacant their offices when they cease to be members of the Assembly. They may also resign from their offices. They can be removed from their offices, by the resolution of the assembly passed by a majority of all the members of the assembly.
Chairman and Deputy Chairman of legislative council
The legislative council of each state elects its Chairman and Deputy Chairman from among its own members. Like the vice-President in the Rajya Sabha. The Governor is not ex-officio Chairman of the legislative council.
Powers and functions of state legislature
1. Ordinary bills
Article 196 says ordinary bills. All bills, except a money bill or financial bill, may originate in either house of the state legislature. As is the case in the centre, a bill must be passed by both the houses either without amendments or with such amendments only as are agreed to by both the houses, except in the case of deadlock.
If a bill has been passed by the legislative assembly and transmitted to the legislative council
1) Is rejected by the council
2) More than three months passed from the date on which the bill is laid before the council, without the bill being passed by it
3) The bill is passed by the council with amendments to which the legislative assembly does not agree, the assembly passes the bill again in the same or in a subsequent session, with or without amendments suggested by the council.
If after a bill has no passed for the second time by the legislative assembly and transmitted to the legislative council which:
1) Rejects the bill
2) Does not pass it within one month from the date on which it is laid before the council
3) Passes the bill with amendments to which the legislative assembly does not agree, the bill will be deemed to have been passed by both houses in the form in which it was passed by the assembly for the second time.
2. Money bills
Article 199 says money bills, a money bill must originate in the lower house of the state legislature. A money bill cannot originate in the legislative assembly; it shall be transmitted to the legislative council for its recommendations. The legislative council must return the bill to the legislative assembly with its recommendations within a period of 14 days from the date of its receipt of the bill. The legislative assembly may either accept or reject all or any of the recommendations of the legislative council, the money bill shall be deemed to have been passed by both houses, with the amendments recommended by the legislative council and accepted by the legislative assembly. If the legislative assembly rejects all the recommendations of the council the money bill shall be deemed to have been passed by the both houses in the form in which it was passed by the legislative assembly. But if a bill is nit returned by the council within 14 days, it shall be deemed to have been passed by both houses at the expiration of such period in the form in which it was originally passed by the legislative assembly.
If any question arises whether a bill is a money bill or not, the decision of the speaker of the legislative assembly shall be final.
Assent to bills
Article 2oosays when a bill has been passed by both the houses the bill is sent to Governor for his assent. He may declare either that
1. He assents to the bill
2. He withholds his assent
3. He reserves the bill for the consideration of the President.
4. He may return the bill to the houses for reconsideration.
When a bill has been reserved by the Governor for the consideration of the President, the President may make take one of the three courses:
1. He may assent to the bill
2. He may withhold assent
3. He may where the bill is not money bill, direct the Governor to return the bill to the house or houses of the state legislature for reconsideration.
When a bills so returned, the houses then must reconsider the bill within a period of six months from the date of receipt. If it again to the passed by the houses, with or without amendment, it shall be presented against to the president for consideration. When a bill is presented for the second time after reconsideration, the President may assent to the bill or reject it.
Bills Reserved for President's consideration
Article 201 says the Governor may reserve certain bills passed by the state legislature for the consideration of the President. When a bill is reserved by a Governor for the consideration of the President, the President may take one of the three courses-
1. He assents to the bill
2. He withholds his assent to the bill
3. He may, where the bill is not a money bill, direct the Governor to return the bill to the houses of the state legislature together his suggestions as referred to in the first proviso to Article 200.
UNIT - III
3.1 JUDICIAL PROCESS UNDER THE CONSTITUTION
Appointment of judges
Article 217 provides that every judge of a High Court shall be appointed by the President. The President appoints the Chief Justice of a High court after consultation with the Chief Justice of India and the Governor of the state concerned.
Qualifications
1. He must be a citizen of India
2. Must held a judicial office for at least ten years, in the territory of India.
3. Must have been an advocate of High Court for at least ten years.
Term and removal of Judges
A judge of the High Court shall hold office until he attains the age of 62 years. If a question arises as to the age of a judge of a High Court, then it shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final.
Salaries and allowances
The judges of the High Court are paid such salaries as are specified in the second schedule. The Chief Justice shall get a salary of Rs. 9,000 and other judges Rs. 8,000 per month.
Jurisdiction of the High court
1. A court of record
Article 215 declares that every High Court shall be a court of record and shall have all powers of such a court including the power to punish for its contempt. The scope and nature of the power of High Court under this Article is similar to the powers of the Supreme Court under Article 129.
2. General Jurisdiction
Article 225 says that
A. the jurisdiction of the High Court
B. the law administered in the existing High court
C. The powers of the judges in relation to the administration of justice in the courts
D. The power to make rule of the High Court shall be the same as immediately before the commencement this constitution.
Power of Superintendence over all courts by the High Courts
Article 227 says every High Court has the power of the superintendence over all courts and tribunals throughout the territory in relation to which it exercises jurisdiction. For this purpose the High Court may call returns from them, make and issue general rules and prescribe forms fro regulating the practice and proceedings of such courts and prescribe forms in which books, entries and accounts are to be kept by the officers of such courts and settle table of fees to be given to the sheriff, Clarks, attorneys, advocates and pleaders.
3.2 Writ jurisdiction of the High court
Article 226 provides that Article 32 every High Court shall have power, throughout the territorial limits in relation to which it exercises jurisdiction to issue to any person or authority including appropriate cases, any government, within those territories, directions, orders of writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari.
1. Habeas Corpus
It is a Latin term which literally means "you may have the body". The writ is issued in form of an order calling upon a person by whom another person is detained to bring that person before the court and to let the court know by what authority he has detained that person. If the cause shown discloses that detained person has been detained illegally the court will order that he be released. Thus the main object of the erit is to give quick and immediate remedy to a person who is unlawfully detained by the person whether in prison or private custody.
Who can apply for the writ?
The general rule is that an application can be made by a person who is illegally detained. But in certain cases, an application of habeas corpus can be made by any person on behalf of the prisoner, i.e. a friend or a relation.
When it will lie
The writ of habeas corpus will lie if the power of detention vested in an authority was exercised malafide and is made in collateral or ulterior purposes. But if the detention is justified the High Court will not grant the writ of habeas corpus. If the following conditions are satisfied the detention is illegal:
1. If the detention is made in accordance with the procedure established by law.
2. The detention is lawful if the condition laid down in Article 22 is complied with.
2. Mandamus
The word mandamus means the order. The writ of mandamus is thus an order by a superior court commending a person or a public authority to do or forbear to do something in the nature of public duty or in certain cases of a statutory duty.
Ex: a licensing officer is under a duty to issue license to an applicant who fulfils all the conditions laid down for the issue of such license. But despite the fulfillment of such conditions if the officer or the authority concerned refuses or fails to issue the license the aggrieved person has a right to seek the remedy through a writ of mandamus.
When it will lie
Thus the order in the nature of mandamus would be issued when there is a failure to perform a mandatory duty. But even in cases of alleged branches of mandatory duty the party must show that he has made a distinct demand t6o enforce that duty and the demand was met with refusal.
1. Thus a writ of mandamus can only be granted when there is in the applicant a right to compel the performance of some duty cast upon the authority.
2. Thus writ of mandamus can be issued to public authority to restrain if from acting under a law which has been declared unconstitutional.
When it will not lie
1. When the duty is merely discriminatory in nature the writ of mandamus will not lie.
2. A writ of mandamus does not lie against a private individual or any private organization because they are not entrusted with a duty.
3. A writ of mandamus cannot be granted to enforce an obligation arising out of contract.
3. Prohibition
A writ of prohibition is issued primary to prevent an inferior court or tribunal from exceeding its jurisdiction, or acting contrary to the rules of natural justice. It is issued by a Superior Court to inferior courts for the purpose of preventing inferior courts from usurping a jurisdiction with which it was not legally vested, or in other words to compel inferior courts to keep within the limits of their jurisdiction.
4. Certiorari
A writ of certiorari is issued by a superior court to an inferior court or body exercising judicial or quasi-judicial functions to remove a suit from such inferior court or body and adjudicate upon the validit6y of the proceedings or body exercising judicial or quasi-judicial functions. It may be used before the trail to higher court. It prevents an excess or abuse of jurisdiction and removes the case for trial to higher court.
The Supreme Court has laid down two propositions for ascertaining whether an authority is to act judicially:
1. If a statute empowers an authority to decide disputes arising out of a claim made by one party under the statute, which claim is opposed by another party, then prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act.
2. If a statutory authority has power to do any act which will prejudicially affect the subject, then although there are not two parties apart from the authority and the contest is between the authority, proposing to do the act and the subject opposing it, the final determination of the authority will be a quasi-judicial act provided the authority is required the statute of act judicially.
Grounds on which writ can be issued
The writ of certiorari is issued to a judicial or quasi-judicial body on the following grounds:
1. Where there is want or excess of jurisdiction
A writ of certiorari is issued to a body performing judicial or quasi-judicial function for correcting errors of jurisdiction, as when an inferior court or tribunal acts without jurisdiction, or in excess of it, or fails to exercise it.
2. for correcting error of law apparent on the face of record
The writ is also issued for correcting an error of law apparent on the face of record. It cannot be issued to correct an error of fact. What is an error of law apparent on the face of record is to be decided by the courts on the facts of each case. The Supreme Court held that no error could be said to be error on the face of the record if it was not self-evident and if it required an examination or argument to establish it.
3. Disregard of principle of natural justice
A writ of certiorari also lies against a court or tribunal when it acts in violation of the principles of natural justice. Two principles of natural justice are generally accepted. Those are
A. the court or tribunal should be free from bias and interest
B. Audi Alteram Partem, it means the parties must be heard before the decision is given.
The principle that the adjudicator should not have an interest or bias in the case that:
A. no man shall be a judge in his own case
B. justice should not be done but manifestly and undoubtedly seem to be done.
The writ of certiorari cannot be issued against a private body.
5. Quo Warranto
The word 'quo warranto' means 'what is our authority'. By this writ a holder of an offence is called upon to show to the court under what authority he holds the office. The object of the writ of quo warranto is to prevent a person to hold an office which he is not legally entitled to hold. The writ of quo warranto would not be issued if at a subsequent stage that disqualification was removed and after the removal of the disqualification the incumbent concerned could have been appointed on the same post.
Who can apply?
A writ of quo warranto can be claimed by a person if he satisfies the court that:
1. The office in question is public office
2. It is held by a person without legal authority
An application for the writ of quo warranto challenging the legality of an appointment to an office of a public nature may lie at the instance of any private person, although he is not personally aggrieved or interested in the matter. A writ of quo warranto is never issued as a matter of course and it is always within the discretion of the court to decide after having considered the facts and circumstances of each case.
3. Interim Relief
The constitution 44th amendment Act, 1978 amended Article 226 and added a new clause (3) for regulating the procedure regarding the power of the High Courts to issue interim orders. Clause (3) provides that where an interim order is passed against a party without
A. furnishing him the copies of such petition
B. giving him an opportunity of being heard
The power to issue interlocutory order Article 226 should be used with circumspection having regard to larger public interest and should not be issued on mere asking of the parties.
3.3 Locus Standi or Public Interest Litigation
The traditional rule is that a person whose constitutional or legal right is infringed can apply for relief under Article 226. But the Supreme Court has now considerably liberalized the above rule of locus standi.
The court now permits the public spirited persons to file a writ petition for the enforcement of constitutional and statutory rights of any other person or a class, if that person or a class is unable to invoke the jurisdiction of the High Court due to poverty or any social and economic disability.
In State of W.B. v/s Ashutosh Lahiri
In this case, the petitioners representing a section of Hindu community has locus standi to file a writ petition under Article 226 for protecting religious sentiments of the community. The state of West Bengal granted exemption from the W.B. animal Slaughter Control Act, 1950. To cow slaughtering on Bakrid day by the Muslim community. The court held that the petitioners were felt aggrieved by the impugned exemption granted by the state. They had no personal interest but a general cause to protect.
THE UNION JUDICIARY
The Supreme Court - composition of Supreme Court
The Supreme Court of India consists of a Chief Justice and, until parliament may by law prescribes a large number, not more than seven other judges. Originally the total number of judges was seven but 1977 this was increased to 17 excluding the Chief Justice. In 1986 this number has been increased to 25 excluding the Chief Justice. Thus the total umber of judges in the Supreme Court at present is 26 including the Chief Justice.
Appointment of judges
The judges of Supreme Court are appointed by the President. The Chief Justice of the Supreme Court is appointed by the President with the consultation of such judges of the Supreme Court and High Courts as he deems necessary for the purpose. The President shall always consult the Chief justice of India. He may consult such other judges of the Supreme Court and High courts as he may deem necessary. Under Article 124 (2) the President, in appointing other Judges of the Supreme Court is bound to consult the Chief Justice of India. But in appointing the Chief Justice of India he is not bound to consult anyone. It is not mandatory on him to consult anyone.
3.4 Appointment of the Chief Justice of India
Appointment to the Chief Justice of India should be made on the basis of seniority.
Qualification of Judges
1. He has been Judge of a High Court at least for five years
2. He has been for at least ten years an advocate of a High Court
3. Is in the opinion of the President, a distinguished jurist, thus a non-practicing or an academic lawyer may also be appointed as Judge of the Supreme Court.
Tenure and Removal of Judges
A judge of the Supreme Court shall hold office until he attains the age of 65 years. A judge may resign his office by writing to the President. President may accept or reject the resignation. Article 124 (4) (5) of the constitution provides a judge may be removed from his office by an order of the President only on grounds of proved misbehaviour or incapacity. The order of the President can only be passed after it has been addressed to both houses of parliament in the same session. The addresses must be supported by a majority of total membership of those houses and also by a majority of not less than two thirds of members of that house present and voting.
In K. Veeraswami v/s Union of India
In this case a five judge bench of the supreme Court by a majority has held that a judge of the Supreme Court and High Court can be prosecuted and convicted for criminal misconduct. Mr. Veeraswami was the Chief Justice of the Madras High Court in 1969. in the 1976 the CBI registered a case against him charging him with amassing wealth disproportionate to his known income and has thus committed an offence under the Prevention of Corruption Act. When he came to know these developments he proceeded on leave from March 9, 1976 and subsequently retired on April 1976.
The appellant filed a petition in the High court for quashing the FIR filed by CBI which was dismissed. He went to Supreme Court by way of special leave petition.
Finally the Supreme Court dismissed the appeal against the Madras High court and ordered his prosecution. The Judges Act 1968 enacted by parliament under Article 124 (5) and the Judges Inquiry Rules, 1969 made there under provide for removal of a judge on the ground of proved misbehaviour or incapacity. It does not provide for prosecution of a judge for offences under 5 (1) (e) of the Prevention of Corruption Act.
Salaries and allowances
The salary of the Chief Justice of India is Rs. 33,000 per month and salary of other Judges of Supreme c is Rs. 30,000.
3.5 Jurisdiction or powers and functions of the Supreme Court
1. A court record
Article 129 makes the Supreme Court a court of record and confers all the powers of such a court including the power to punish for its contempt. The Contempt of Courts Act, 1971, defines the powers of courts for punishing contempt of courts and regulates their procedure. According to Section 2 of the Act; 'Contempt of Court' includes both civil and criminal contempt.
Civil Contempt means willful disobedience to any judgment, decree, direction order, writ or other process of a court or willful breach of an undertaking given to a court.
Criminal Contempt means the publication of any matter or ding of any act whatsoever which-
1. Scandalizes or tends to scandalize, or lowers or tends to lower the authority of any court,
2. Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding,
3. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
The following acts or publications will not amount to contempt
1. Innocent publications and its contempt
2. Fair and accurate report of judicial proceedings
3. Fair criticism of judicial act
4. Compliant made in good faith against presiding officers of subordinate courts
5. Publication of fair and accurate report of a judicial proceeding before a court sitting in camera.
A contempt of court may be punished with simple imprisonment for a term which may extend to 6 months or with fine which may extend to Rs. 2,000 or with both.
2. Original Jurisdiction
Article 131 of the constitution speaks about original jurisdiction of the Supreme Court. The Supreme Court has original jurisdiction in any dispute:
1. between the government of India and one or more states
2. between the government of India and any state or states on one side and one or more other states on the other,
3. between two or more states.
The original jurisdiction of the court must involve a question of law or fact on which the existence of legal right depends. This means that the court has no jurisdiction in matters of political nature. The term 'legal right' means a right recognized by law and capable of being enforced by the power of a state but not necessarily in a court of law.
Enforcement of fundamental rights
Article 32 confers original jurisdiction on the Supreme Court to enforce fundamental rights. Under Article 32 every citizen has a right to move the Supreme Court by appropriate proceedings for the directions or orders or writs including writs on the nature of habeas corpus, mandamus, prohibition and certiorari whichever may be appropriate.
3. Appellate jurisdiction
Article 132 says the Supreme Court is the highest court of Appeal in the country. The writ and decrees of the court run throughout the country. The appellate or by the Supreme Court can be divided into four main categories:
1. Constitutional matters
Under Article 132 (1) an appeal shall lie to the Supreme Court from any judgment, decree or final order or a High Court whether in civil, criminal or other proceedings, if the High Court certificates under Article 134-A that the case involves a substantial question lf law as to the interpretation of this constitution.
Three conditions are necessary for the grant of certificate by the High Court:
1. The order appealed must be against a judgment, decree or final order made by the High Court in civil, criminal or other proceedings.
2. The case must involve a question of law as to the interpretation of this constitution.
3. If the High Court under Article 134-A certifies that the case be heard by the Supreme Court.
An appeal against High Court's decision would lie to the Supreme Court only when its decision amounts to a final order. If after the order, the suit is still alive, i.e., in which the right is still to be determined, it will not be a final order and no appeal would lie in the Supreme Court.
2. Appeal in civil cases
Article 133 provides that an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceedings of a High Court only if the High Court certifies-
A. That the case involves a substantial question of law of general importance
B. That in the opinion of the High Court the said question needs to be decided by the Supreme Court.
Civil Proceedings
It means proceedings in which a party asserts the existence o0f a civil right. A civil proceeding is one in which a person seeks to remedy by an appropriate process the alleged infringement of his civil rights against another person or the state and which, if the claim is proved, would result in the declaration, express or implied, of the right claimed and relief, such as, payment of debt, damage, compensation, etc.
3. Appeal in criminal cases
Article 134 says an appeal lies to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the following two ways:
1. without a certificate
Article 134 (a) (b) says an appeal lies to the Supreme Court without the certificate of the High Court if the High Court.
a) Has no appeal reversed an order of acquittal of an accused person and sentenced him to death.
b) Has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death.
But if the High Court has reversed the order of conviction and has ordered the acquittal of an accused, no appeal would lie to the Supreme Court.
2. with a certificate
Article 134 (c) provides an appeal lies to the Supreme Court if the High Court certifies under 134-A that it is a fit case for appeal to the Supreme Court.
Certificate for appeal to Supreme Court
Article 134-AQ provides the constitution 44th amendment Articles 132,133 and 135 and inserted a new Article 134-A for regulating the grant of the certificate for appeal to the Supreme Court by the High Courts.
4. Appeal by special leave
Article 136 of the constitution provides that the Supreme Court is authorized to grant in its discretion special leave to appeal from
a) Any judgment, decree, determination, sentence or order
b) In any case or matter
c) Passed or made by any court or tribunal in the territory of India.
This Article is in the nature of special residuary powers which are exercisable outside the purview of ordinary law. Articles 132 to 135 deal with ordinary appeals to the Supreme Court in cases where the needs of justice demand interference by the highest court of the land.
3.6 Advisory Jurisdiction
Article 143 provides that if at any time it appears to the President that-
a) a question of law or fact has arisen or is likely to arise
b) The question is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question for the Advisory opinion of the Court and the court may after such hearing as it thinks fir, report to the President its opinion thereon.
Under clause (2), if the President refers to the Supreme Court matters which are excluded from its jurisdiction under Article 131 the court shall be bound to give its opinion thereon.
Ayodhya Dispute and Advisory opinion
In a land mark judgment in Ismail Faruquiv/s Union of India, in that case held that the Presidential reference seeking the Supreme Court's opinion on whether a temple originally existed at the site where the Babari Masjid subsequently stood was super flouous and necessary and opposed to secularism and favored one religious community and therefore, does not require to be answered. There had been a long standing dispute relating to the disputed structure in Ayodhya which led to the communal tension country.
The court upheld the validity of the acquisition of 67areas of land in Ayodhya. These title cases are pending before the Allahabad High Court. Till the disposal of the dispute regarding the ownership of land on which the Babari Masjid stood the government would act as a receiver of this portion of the land.
The main features of the judgment are as follows:
1. The presidential reference is not maintainable
2. Pooja to continue at the make shift Ram Lala temple that had been erected on dispute site following demolition of Babri masjid structure on December 1992.
3. The judgment is no reflection on the President of India.
4. The title suits regarding disputed structure pending in Allahabad High Court revived.
5. Land of disputed structure cannot be transferred to a third party.
6. The centre is permitted to settle dispute through negotiation.
7. Acquisition of 67 acres of land upheld except disputed area.
5. Power to review its judgments
Article 137 provides the Supreme Court has expressly been given the power to review its judgment.
Grounds of review
1. Discovery of new important matters of evidence.
2. Mistake or error on the face of record
3. Any other sufficient reason.
In a review petition, an error of substantial nature only can be reviewed. When a plea of self-defence is taken and if the court is satisfied that it is probable and there is basis for the same and if the benefit is to be given to the accused then the legality of the conviction itself is involved.
Independence of Judiciary
The constitution has made several provisions to ensure independence of judiciary.
1. Security of tenure
The judges of the Supreme Court have security of tenure. They cannot be removed from office except by an order of the President and that also only on the ground of proved misbehaviour or incapacity, supported by a resolution adopted by a majority of total membership of each house and also by a majority of not less than 2/3 of the members of the house present and voting.
2. Salary of judges fixed, not subject to vote of legislature
The salaries and allowances of the judges of the Supreme Court are fixed by the constitution and charged on the consolidated fund of India. They are not subject to vote of legislature. During the term of their office, their salaries and allowances cannot be altered to their disadvantage except in grave financial emergency.
3. Parliament can extend, but cannot curtail the jurisdiction and power of the Supreme Court.
Parliament may change pecuniary limit for appeals to the Supreme Court in civil cases, enhance the appellate jurisdiction of the supreme Court, confer supplementary power to enable it to work more effectively, confer power to issue directions, order or writs including all the prerogative writs for any purpose other than those mentioned in Article 32.
4. No discussion in legislature on the conduct of the judges
Neither in parliament nor in state legislature a discussion can take place with respect to the conduct of a judge of the Supreme Court in discharge of his duties.
5. Power to punish for its contempt
The Supreme Court and the High Court have the power to punish any person for its contempt. This power is very essential for maintaining the impartiality and independence of the judiciary.
6. Separation of judiciary from executive
Article 50 directs the state to take steps to separate the judiciary from the executive in the public services of the state. It emphasizes the need of securing the judiciary from the interference by the executive.
7. Judges of the Supreme Court are appo9inted by the Executive with the consultation of legal experts
The constitution does not leave the appointment of the judges of the Supreme Court to the unguided discretion of the Executive. The Executive is required to consult judges of the Supreme Court and High courts in the appointment of the judges of the Supreme Court.
The independence of the Supreme Court is emphasized by Article 229 which provides that appointment of officers and servants shall be made by the chief justice or such other judge or officer as he may appoint.
8. Prohibition on practice after retirement
Article 124 (7) prohibits a retired judge of the Supreme Court to appear and plead in any court or before any authority within the territory of India.
Speaker and Deputy Speaker
The speaker is the chief presiding officer of the legislative assembly of a state. He is elected by the member of the assembly from their own members. The assembly elects its deputy speaker also from its own members. The Deputy speaker performs the duties of the speaker when the speaker is absent or while the office of the speaker is vacant.
Both speaker and deputy speaker vacant their offices when they cease to be members of the Assembly. They may also resign from their offices. They can be removed from their offices, by the resolution of the assembly passed by a majority of all the members of the assembly.
Chairman and Deputy Chairman of legislative council
The legislative council of each state elects its Chairman and Deputy Chairman from among its own members. Like the vice-President in the Rajya Sabha. The Governor is not ex-officio Chairman of the legislative council.
UNIT - IV
4.1 RELATIONS BETWEEN THE UNION AND STATES
Relationship between union and states are of two
1. Legislative relations
2. Administrative relations
3. Financial relations
1. Legislative relations
The constitution of India makes two-fold distribution of legislative powers:
A. with respect to territory
Article 245 (1) provides that parliament may make laws for the whole or any part of the territory of India. According to clause (2) of Article 245 a law made by parliament shall not be deemed to be invalid on the ground that it has extra-territorial operation, i.e., takes effect outside the territory of India.
The legislative power of parliament and state legislatures is subject to the provisions of the constitution.
1. The scheme of the distribution of powers
2. Fundamental rights
3. Other provisions of the constitution
Delegated legislation
Delegated or subordinate legislation may be denied as rules of law made under the authority of an Act of parliament.
Factor responsible for the growth of delegated legislation
1. Pressure on parliamentary time
Parliament being a busy body has insufficient time to deal adequately with the increasing mass of legislation necessary to regulate affairs of a complex modern state.
2. Technicality of subject-matter
Technicalities of modern legislation require expertise knowledge of problem which is not expected of the legislation in the legislature which is composed of politicians.
3. Opportunity of subject-matter
Delegated legislation is more flexible, easy amendable and revocable than ordinary legislation. There is enough scope for experimentation.
4. Unforeseen contingencies
Subordinate legislation enables a government to deal with problems which could not be foreseen when the enabling Act was passed and to act quickly in an emergency.
5. Emergency powers
During the emergency quick and decisive action is necessary and at the same time it is to be kept confidential. The legislature is not fit to serve this end and therefore the executive is delegated the power to make rules to deal with such situations.
Need to control exercise of delegated legislation
1. Nomenclature of various forms of delegated legislation should be supplied and better provision be made for publication.
2. The precise limits of law-making power which parliament intended to confer on a Minister should be clearly defined.
3. Clauses excluding jurisdiction of the courts should be abandoned in all but the most exceptional cases.
4. Consultation with interested bodies should be extended.
5. Parliamentary scrutiny and control should be improved.
There are two types of control over delegated legislation
A. Judicial control
The courts have power to consider whether the delegated or subordinate legislation is consistent with the provisions of the enabling Act. Their validity can be challenged on the ground of ultra vires i .e. beyond the competence of the legislature. The courts can declare the parent Act constitutional on the ground of excessive delegation or violation of fundamental rights or if it is against the scheme of distribution of legislative powers under Article 246 of the constitution.
B. Parliamentary control
It is the primary duty of the legislature to supervise and control the exercise of delegated power by the executive authorities. Parliamentary control over the delegated legislation is exercised at three states.
A. when power is delegated to the subordinate authorities by parliament. This stage comes when the bill is introduced.
B. when the rules made under the statute are laid before the houses of parliament through the committees on subordinate legislation.
C. these rules are laid before the legislature and debated in the legislature.
B. Subject matter of jurisdiction
The present constitution adopts the method followed by the government of India Act 1935, and divides the powers between the Union and the States in three lists:- union list, the state list and the concurrent list.
1. The union list:- it consists of 97 subjects mentioned in union list are of national importance, therefore defence, foreign affairs, banking currency and coinage, union duties and taxes etc.
2. The state list:- it consists of 66 subjects. There are of a local importance, such as, public order and police, local government, public health and sanitation, agriculture, forest, fisheries, education, state taxes and duties etc.
3. The concurrent list:- it consists of 47 subjects. Both centre and states can make laws on the subjects mentioned in the concurrent list. But in case of conflict between the centre and the state law on concurrent subjects, the central law will prevail.
2. Administrative relations
Control of union over state
Articles 256 to 263 provide for union control over states even in normal times through following ways:
A. Direction by the centre to the states
The union idea of union giving direction to the states is foreign and repugnant to a rule of federal system. Article 256 provides that the executive power of the state shall be so exercised as to ensure compliance with the laws made by parliament and the executive power of the union shall also extend to the giving of such directions to a state as it may deem essential for the purpose. Thus power to give direction was necessary because, if the centre was not vested with such power the proper execution of the laws passed by the parliament would become impossible.
Article 257 enacts that the states must exercise of the executive power in such a way so as not to impede or prejudice the exercise of the executive power in such a way so as not to impede or prejudice the exercise of the executive power of the union in the state. The powers of the central government also extend to giving directions to a state in two specific matters:-
1. The constitution and maintenance of means of communication which are declared to be of national or military importance.
2. Measures to be taken for the protection of the railway within the states. This power of giving direction does not in any way affect the power of the parliament to declare highways or waterways to be national highways and waterways and to construct and maintain means of communications as part of its functions with respect to naval, military or airforece works.
B. Delegation of union's function to the states
Under Article 258 the parliament may, with the consent of the state government, entrust either conditionally or unconditionally to that government or to its offices functions relating to any matter filling within the executive powers of the union. Under clause (1) the delegation of power is made with the consent of the state the consent of the state is not necessary under clause (2) and delegated can be made by parliament by law.
C. All India Services
The separate services for the union and the states the constitution provides for the creation of an additional "All-India Service" common to the union and the states. According to Article 312 if the Rajya Sabha passes a resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the nation's interest to do so. The object of this provision is to ensure greater inter-state co-ordination and implementation of the policies of the centre government through these officers.
D. Grants-in-aid
The financial resources of the state are very limited though they have to do many works of social uplift under directive principles in order to cope with their ever-expanding needs; the central government makes grants-in-aid to the states. Grants-in-aid to states thus serve two purposes:
1. Through it central government exercise a strict control over the states because grants are granted subject to certain conditions. If any state does not agree to the condition the central government may withdraw the grant.
2. It generates a centre-state co-ordination and co-operation if a state wants to develop its welfare schemes for the people of the state it may ask for financial help from the centre,.
E. Full faith and credit clause
Article 261 declares that full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the union and every state.
3. Financial relations
In India, the scheme of distribution of sources of revenue between the centre and the states is based on the scheme laid down in the government of India Act, 1935.
Distribution of revenues between the union and the states
Article 268 provides the scheme of the distribution of revenue between the union and the states. The states possess exclusive jurisdiction over taxes enumerated in the state list.
1. Duties levied by the union but collected and appropriated by the states
According to Article 268 stamps duties and duties of excise on medicinal and toilet preparations mentioned in the union list shall be levied by the central government. The proceeds of such duties are assigned to the states.
2. Service tax levied by union and collected and appropriated by union and states
The new Article 268A added by the constitution 88th amendment Act 2003 empowers the union of India to levy service taxes. Such taxes shall be collected and appropriated by the Union and the states in accordance with such principles as may be formulated by parliament by law.
3. Taxes levied and collected by the union and assigned to the states
The constitutional amendment Act 200 has amended Article 269.the amendment has been enacted on the basis of the recommendations of the Tenth finance commission. The Tenth finance commission has recommended that out of the total income obtained from certain central taxes and duties 29% shall be given to the states.
4. Taxes levied and collected by the union but distributed between the union and states
The constitution 80th amendment Act, 200 has substituted a new Article for Article 270 which shall be deemed to have been substituted with effect from 1996.clause (2) provides that such percentage, as may be prescribed, of the net proceeds of any such tax or duty in any financial year shall from part of the consolidated fund of India, but shall be assigned to the states within which that tax or duty is leviable in that year, and shall be distributed among those states in such manner and form such time as may be prescribed in the manner provided in clause (3).
5. Taxes for the purpose of the union
Article 271 provides that if parliament at any time increases any of the duties or taxes mentioned in Article 269 and 270 by imposing a surcharge, the whole proceeds of any such surcharge shall from part of the consolidated fund of India.
6. Grants-in-aid
The constitution provides for three kinds of grants-in-aid to the states from the union resources. Those are:
1. Under Article 273 grants-in-aid will be given to the states of Assam, Bihar, Orissa and West Bengal in lieu of export duty on the jute products. The sums of such grants are prescribed by the President with the consultation of the Finance commission.
2. Article 275 empowers parliament to make such grants, as it may deem essential, to the states which are in need of financial assistance.
3. Article 282 both the union and the state make grant for any public purpose even if it relates to a subject over which it hospitals or to schools.
7. Taxes for the purpose of states
Article 276 and 277 are saving provisions these Articles save the authority of the state to levy taxes, on subject now forming part of the Union list. Thus taxes which are being levied by a state or a municipality or other local authority. Article 276 empowers the stats to impose taxes on professions, trades, calling and employment for the benefit of the state or of a municipality, district board, local boards or other local authorities.
Restriction on states taxing power
Restriction on the power of the states to impose tax on the sale or purchase of goods.
The state has, like the union, power to levy tax on the sale and purchase of goods, other than newspapers. Article 286, imposes the following restrictions on the state's power to impose sales tax on goods.
1. Sale or purchase of goods which takes place outside the state
Article 286 (1) (b) prohibits a state to impose a tax on the sale or purchase of goods which takes place outside the state.
Only the central can levy tax on sale and purchase of goods when it takes place in the inter-state trade and commerce.
2. Sale or purchase of goods in the course of import and export
Article 286 (1) (b) prohibits states to impose a tax on the sale or purchase of goods which takes place in the course of import of goods into or export of the goods out of the territory of India. Parliament is empowered to lay down the principle for determining when a sale or purchase takes place in the course of import into or export from India. The central sales tax Act, 1955 enacted by parliament, defines such a sale. A sale or purchase of goods is in the course of export or import when it either occasions such export or import or it takes place by the transfer of document of title of the goods after they have crossed the customs barrier of India.
3. Sale or purchase in the course of inter-state trade or commerce
A state cannot impose a tax on the sale or purchase of goods which taxes place in the course of inter-state trade and commerce. A sale or purchase of goods shall be deemed to take place in the course of inter-state trade or commerce when the sale or purchase
A. Occasions movement of goods from one state to another
B. is affected by a transfer of documents of title to the goods during their movement from one state to another.
4. Goods of special importance in the inter-state trade or commerce
Article 286 (3) prohibits a state to impose a tax on sale and purchase of goods declared by parliament by law of 'special importance' to inter state trade or commerce. Section 14 of the central sales tax Act, 1956, specifies a number of goods to be of special importance of inter-state or commerce. In relation to goods of special importance the state taxing power is subject to the restrictions imposed by the parliament.
5. Taxes on the sale of purchase of goods in the course of inter-state trade or commerce
Article 286 which enables the parliament to impose restrictions in regard to taxes on sale or purchase of goods, or consignment of goods in the inter-state trade or commerce. A state law cannot impose a tax on:-
A. The transfer of goods involved in the execution of a works contract.
B. The delivery of goods on hire-purchase on any system of payment in installments
C. The transfer of the right to use any goods for any purpose for cash, differed payment or other valuable consideration such transfer or delivery is deemed to be a sale or purchase of goods and therefore state laws imposing taxes on such sale or purchase shall be subject to such restrictions or conditions as may be specified by parliament by law.
4.2 Amendment of The Constitution
Article 368 of the Indian Constitution says amendment of the constitution. For the purpose of amendment the various Articles of the constitution are divided into three categories:
1. Amendment by simple majority
Articles that can be amended by parliament by simple majority as that required for passing of any ordinary law. The amendments contemplated in Articles 5, 169 and 239-A, can be made by simple majority. These Articles are specifically excluded from the purview of the procedure prescribed in Article 368.
2. Amendment by special majority
Articles of the constitution which can be amended by special majority as laid down in Article 368. All constitutional amendments, other then those referred to above, come within this category and must be effected by a majority of the total membership of each house of parliament as well as by a majority of not less than 2/3 of the members of that house present and voting.
3. by special majority and ratification by states
Article which require, in addition to the special majority mentioned above, ratification by not less then 1/2 of the state legislatures. The states are given an important voice in the amendment of these matters. These are fundamental matters where states have important power under the constitution and any unilateral amendment by parliament may vitally affect the fundamental basis of the system built up by the constitution.
The following provisions require such ratification by the states
1. Election of the President under Articles 54 and 55 of the constitution.
2. Extent of the executive powers of the union and states Articles 73 and 162 of the constitution.
3. Articles dealing with judiciary, Supreme Court, High Court in the states and union territories Articles 124 to 147, 214 to 231, 241 of the constitution.
4. Distribution of legislative powers between the centre and state Articles 245 to 255 of the constitution.
5. Any of the lists of the VII schedule.
6. Representation of states in parliament IV schedule.
Procedure or amendment
A bill to amend the constitution may be introduced in either house of parliament. It must be passed by each house by a majority of the total membership to that house and by a majority of not less than 2/3 of the members of the house present and voting. When a bill is passed by both houses it shall be presented to the President for his assent who shall give his assent to bill and thereupon the constitution shall stand amended. But a bill which speaks to amend the provisions mentioned in Article 368 requires in addition to the special majority mentioned above the ratification by the ˝ of the states.
Amendment of fundamental rights
The question whether fundamental rights can be amended under Article 368? In this question decided by Supreme Court. In Shankari Prasad v/s Union of India in this case, in this case the validity of the Constitution Act, 1951, which inserted inter alia, Articles 31-A and 31-B of the constitution was challenged. The amendment was challenged on the ground that it purported to take away abridge the rights conferred by part III which fell within the prohibition of Article 13 (2) and hence was void. It was argued that the state, in Article 12 included parliament and the word law in Article 13 (2) must include constitution amendment.
The supreme Court rejected the above argument and held that the power to amend the constitution including the fundamental rights is contained in Article 368,and that the word lae in Article 13 (8) includes only an ordinary law made in exercise of the legislature powers and does not include constitutional amendment which is made in exercise of constituent power. Therefore, a constitutional amendment will be valid even if it abridges or takes any of the fundamental rights.
In Sajjan Singh v/s State of Rajasthan
In this case the validity of the constitution Act, 1964 was challenged. The Supreme Court approved the majority judgment given in Shankari Prasad's case and held that the words "amendment of the constitution" means amendment of all the provisions of the constitution. That if the constitution-makers intended to exclude the fundamental rights from the scope of the amending powers they would have made a clear provision in that behalf.
Basic Structure theory
The judges enumerated certain essentials of the basic structure of the constitution, but they also made it clear that they were only illustrative and not exhaustive. The basic structure of the constitution consists of the followings features:
1. Supremacy of the constitution.
2. Republic and democratic forms of the government.
3. Secular Character of the constitution.
4. Separation of powers between the legislature, the executive and the judiciary
5. Federal character of the constitution.
6. Dignity and individual secured by various freedoms and basic rights in part III of the constitution.
Examples of amendment
1. Second amendment, 1952
It amended Article 18 (1) (b) which dealt with representation of states in parliament. It provided that one member of the house could represent even more than 7,50,000 persons thus made it possible to maintain the total strength of Lok Sabha constant at 500 which would have become impossible under the original Article.
2. Eleventh amendment, 1961
It added a new clause (4) to Article 71 of the constitution which clears that the election of the President or vice-President cannot be challenged on the ground that any vacancy existed the Electoral College as mentioned in Articles 54 and 55 of the constitution.
3. Twelfth amendment, 1962
It was brought into force with retrospective effect, i.e. from December 20, 1961. By this amendment the territories of Goa, Daman and Diu were included as a union territory in the First Schedule.
4. Thirty-Fourth amendment, 1974
It amended the Ninth Schedule of the constitution for the fourth time and added twenty state Land Reforms Acts to the Ninth Schedule. With the addition of these Acts the total number of Acts in the Schedule rose to 86.
UNIT- V
5.1 EMERGENCY PROVISION
The constitution of India provides for three types of emergences
1. National Emergency
Article 352 provides that if the President is satisfied that a grave emergency exists whereby the security of India or any par of India is threatened, wither by war or external aggression or armed rebellion, he may make a proclamation of emergency in respect of the whole of India or any part of India as may be specified in the proclamation. If the President is satisfied that there is imminent danger of war or external aggression or armed rebellion is occurred in the territory of India. The president shall not issue a proclamation under clause (1) or a proclamation varying such proclamation unless the decision of the union cabinet. This means that the emergency can be declared only on the concurrence of the cabinet, and not merely on the advice of the Prime Minister.
Grounds of proclamation of emergency
The President can proclaim emergency if he is satisfied that the security of India or any part thereof is threatened either by war or external aggression or armed rebellion. Prior to the 44th amendment one of the ground on which emergency could be declared under Clause (1) was internal disturbance.
Procedure for proclamation of emergency
It must be laid before each house of parliament and it shall cease to be in operation at the expiration of one month unless before the expiry of one month it has been approved by resolutions of both houses of parliament. If the proclamation of emergency is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of one month referred to above, without approving the proclamation but the proclamation has been approved by the Rajya Sabha, the proclamation shall cease to operate at the expiration of 30 days from the date on which the Lok Sabha sits after fresh election, unless before the expiry of the above period of thirty days a resolution, approving the proclamation has been passed by the Lok Sabha.
A resolution approving the proclamation must be passed by special majority that is by a majority of the total members of each house and also by a majority of not less then 2/3 of the members present and voting in each house. Prior to the 44th amendment, such resolution could be passed by parliament by a simple majority.
1. Duration of emergency
Prior to the 44th amendment a proclamation of emergency could remain in force in the first instance for two months. But once approved by parliament emergency could remain in force indefinitely i.e. as long as the executive wanted it to continue. After the 44th amendment, a proclamation of emergency may remain in force in the first instance for one month. Such a proclamation, if approved by parliament, shall remain in force for the period of six months unless revoked earlier.
Effects of proclamation of emergency
1. Extension of center's executive power
Article 353 says that during the operation of a parliament of emergency the executive power of the union extends to giving of directions to any state as to the manner in which the executive power of the state is to be extended. In normal time the executive power does not extend to give such direction subject to certain exceptions.
2. Parliament empowered to legislate on state subjects
Article 353 says while the proclamation of emergency is in operation, the union parliament is empowered to make with respect to any of the matters in state list. The distribution of legislative power is thus fundamentally changed during emergency. The law-making power of the state is not suspended during the emergency. The state can make law but it is subject to the overriding power of the union parliament.
3. Centre empowered to alter distribution of revenue between the union and the state
Article 354 of the constitution says that the President may, while a proclamation of emergency is in operation by the order after the financial arrangement between the state and the union as provided in Articles 268 to 279. Every such order is to be laid before each house of parliament and will come to an end by the financial year in which the proclamation of emergency ceases to operate.
4. Extension of life of Lok Sabha
Article 83 (2) of the constitution says that while the proclamation of emergency is in operation, the President may extend the normal life of the Lok Sabha by a year each time upto a period not exceeding beyond six months after proclamation ceases to operate.
5. Suspension of fundamental rights guaranteed by Article 19
Article 358 provides for suspension of the six fundamental freedoms guaranteed to the citizens by Article 19 of the constitution. It says that while a proclamation of emergency is in operation nothing in Article 19 shall restrict the power of the state to make any law or to take any executive action abridging or taking away the rights guaranteed by Article 19 of the constitution.
2. State Emergency
Article 356 says that if the President, on receipt of a report from the Governor of a state or otherwise is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with provisions of the constitution.
He may issue a proclamation. By that proclamation:
1. The President may assume to himself all or any of the powers vested in or exercised by the Governor to anybody or authority in the state.
2. The President may declare that the powers of the legislature of the state shall be exercised by or under the authority of parliament.
3. The President may make such incidental and consequential provisions as may appear to him to be necessary or desirable forgiving effect to the object of procl
4. The proclamation issued under article 356 (1) may be revoked by the President by a subsequent proclamation. Article 356 (1) says satisfaction means does not mean the personal satisfaction of the Governor but it is the satisfaction of the cabinet. The satisfaction of the President can be challenged on two grounds, those are:
1. It has been exercised mala fide,
2. Based on wholly extraneous and irrelevant grounds.
Ex: President Rule in U.P in 1995, President Rule in Gujarat in 1996, President Rule in Goa in 1998 etc.
3. Financial emergency
Article 356 says the state satisfied that situation has arisen whereby the financial stability or credit of India or part of the territory therefore is threatened, he may by a proclamation make a declaration to that effect. During the period when such a proclamation is in operation, the executive authority of the union shall extend to the giving direction to any state to observe such canons of financial propriety as may be specified in the directions and be deemed necessary by the President maintaining financial and the credit of the state.
The duration of a proclamation of financial emergency will be in operation for two months and unless approved by President it shall cease to operate at the expiry of two months period.
5.2 Services under the union and the states
Article 309 empowers parliament and the state legislatures to regulate the recruitment and the conditions of service of the persons appointed to public services and posts under the union and the states, respectively. According to Article 309, the President and the Governors may make rules for regulating the recruitment and conditions of service of persons appointed to such services and posts.
Doctrine of Pleasures
In England, the normal rule is that a civil servant of the Crown holds his office during the pleasure of the Crown. This means that his services can be terminated at any time by the Crown, without assigning any reason. Even if there is a contract of employment between the Crown, the Crown is bound by it. The doctrine of pleasure is based on the public policy.
Article 310 of the Indian Constitution incorporates the common law doctrine of pleasure. It expressly provides that all persons who are members of the Defence Services or the Civil Services of the union or of All-India services hold office during the pleasure of the President. Similarly, members of the state services hold office during the pleasure of the Governor. Thus Article 310 is limited by Article 311 (2). The services of permanent government servant cannot be terminated except in accordance with rules made under Article 309, subject to the procedure in Article 311 (2) of the constitution and the fundamental rights.
Restriction on doctrine of pleasure
1. The pleasure of the President or Governor is controlled by provisions of Article 311, so the field covered by Article 311 is excluded from the operation of the doctrine of pleasure. The pleasure must be exercised in accordance with the procedural safeguards provided by Article 311.
2. The tenure of the Supreme Court Judges, High court Judges, and Auditor-General of India, The Chief Election Commissioner and the Chairman and members of the Public Service Commission are not dependent on the doctrine of pleasure of the President or the Governor, as the case may. These posts are expressly excluded from the operation of the doctrine of pleasure.
Constitutional safeguards to civil servants
1. No removal by subordinate authority
Article 311 (1) says that a civil servant cannot be dismissed or removed by any authority subordinate to the authority by which he was appointed. This does not mean that the removed or dismissed must be by the same authority who made the appointment or by his direct superior.
2. Reasonable opportunity to defend
Article 311 (2) lays down that a civil servant cannot be dismissed or removed or reduced in rank unless he has been given a reasonable opportunity to show cause against the action proposed to be taken against him. The opportunity to defend was given to a civil servant at two stages:
1. At the enquiry stage and this is an accord with the rule of natural justice that no man should be condemned without hearing.
2. At the punishment stage, when as a result of enquiry the charges have been proved and any of the three punishments. Those are dismissal, removal or reduction in rank was proposed to be taken against him.
Reasonable opportunity include
1. An opportunity to deny his guilt and establish his innocence which can be only done if he is told what the charges against him are and the allegation on which such charges are based.
2. An opportunity to defend himself by cross-examining the witness produced against him and by examining himself or any other witness in support of his defence and also.
3. An opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do so if the competent authority, after the enquiry is over and after applying his mind to the gravity of the charges, tentatively proposes, to inflict one of the three major punishments and communicates the same to the government servant.
In U.P Government v/s Sabir Hussain
In this case the Supreme Court held that the broad test of reasonable opportunity is whether in the given case the show-cause notice issued to the delinquent servant contained or was accompanied by so much information as was necessary to enable him to clear himself of the guilt, if possible, even at that stage, or, in the alternative to show that the p[penalty imposed was much, too harsh and disproportionate to the nature of the charge established against him.
In this case, the impugned order of removal proceeded on the acceptance of the report of enquiry proceedings and comments of the Enquiry Officer. No copy of the report, findings and comments was given to him. It was, held that the delinquent servant was not given a reasonable opportunity to show cause against the action proposed to be taken against him, and the non-supply of the copies of material documents had serious prejudice to him in making a proper representation. The order of removal was, held to be unconstitutional and illegal.
Exceptions to Article 311 (2)
1. Where a person is dismissed are reduced in rank on the ground of misconduct which has led to conviction or criminal charges.
2. Where it is impracticable to give the civil servant an opportunity to defend him self but the authority taking action him shall record the reasons for such action.
3. Where in the interest of the security of state, it is not expedient to give such an opportunity to the civil servant.
5.3 State Liability
Suits by or against the state
Article 300 of the constitution says that the government of India may sue or be sued by the name of the Union of India and government of a state may sue or be sued by the name of the state. Article 299 authorizes the government of India to enter into contract for any purpose subject to the mode and manner provided for it in Article 209. a contract is binding to be made by the President or by the Governor of India if the following three conditions are fulfilled that-
1. It must be expressed to be made by the President or by the governor of the State as the case may be,
2. It must be extended on behalf of the President or the Governor as the case may be,
3. Its execution must be by such person and in such manner as the President or Governor may direct or authorize.
Liability in tort
Article 300 (1) provides that the government of India may be sued in relation to its affairs in the like case as the domination of India, subject to any law which may be made by Act of Parliament. The parliament has not made any law and therefore the question has to be determined as to whether the suit would lie against domination of India before the constitution came into fore.
P. and O. Steam Navigation co. v/s Secretary of state for India
The facts of the case were that a servant of the plaintiff's was traveling from Garden Reach to Calcutta in a carriage driven by a pair of horses. The accident took place when the coach was passing through the kidder pore Dockyard which was government Dockyard. Some government workmen employed in the Dockyard were carrying a heavy piece of Iron rod for the purpose of repairing a steamer. The men carrying the iron-rod were going in the middle of the road. When the carriage of the plaintiff drove up nearer the coachman gave a warning to the men carrying the iron rod attempted to get out of the way, those in front tried to go the one side of the road while those behind tried to go the other side of the road. The consequence of this was a loss of the time, brought the carriage close up to them before they had left the centre of the road. Seeing horses and carriage they got alarmed and suddenly dropped the iron rod and ran away. The iron rod fell with a great noise resulting in injuries to one horse, which startled the plaintiff's horses which thereupon rashed forwards violently and fell on the iron rod. The company filed a suit against the Secretary of state in council for the damages for injury to its horse caused by the negligence of the servants employed by the government of India.
Finally the Supreme Court held that the secretary of state for India was liable for the damages caused by the negligence of government servants, because the negligence act was not done in the exercise of a sovereign function.
No distinction between sovereign and non-sovereign
In N. Nagendra Rao and Co. v/s State of A.P
In this case the appellant was carrying on business in fertilizer and food grains under licenses issued by appropriate authorities. Its premises were visited by the Police Inspector Vigilance Cell and huge stocks of fertilizer, food grains and even non-essential goods were seized. On the report submitted by the Inspector, the District Revenue Officer in exercise of powers under section 6-A of the Essential Commodities Act, directed the fertilizer to be placed in the custody of Assistant Agricultural Officer for distribution to needy riots and the food grains and non-essential goods in the custody of Tehsildar for disposing it of immediately and depositing the sale proceeds in the Treasury. The AAO did not take any steps to dispose of the fertilizer. Despite Collector's order the AAO did not release the stock. He informed the appellant to take delivery of the stock. But when he went to take the delivery of the stock he found that the stock had been spoilt both in quality and quantity. He then demanded the value of the stock released by way of compensation. His demand was rejected. He then filed the suit for recovery of the amount which was contested by the state that it was immune from liability on the ground of doctrine of sovereign immunity. The trial court did not accept the defence and held that AAO acted negligently in not disposing of the stock in time and decreed the suit. The state appealed to the High Court. The High court set aside the decree.
Finally the Supreme Court held that the state was liable vicariously for the negligence committed by its officers in discharge of public duty conferred on them under a statute.
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