Parliament

This article deals with ‘Parliament .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Introduction

• Legislative Organ of Union
• Article 79 to 122 of Part V deals with it

Organisation of Parliament

• Consist of three parts

President

Rajya Sabha

Lok Sabha

• Based on Britain Model or Westminster Type of Legislative system
• In India unlike USA,  Executive is part of and responsible to Legislature

Rajya Sabha

• Earlier name – Council of States (changed in 1954)
• Also known as – Second House or House of Elders
• Membership of this house

Maximum	250 (238  from States and UT+ 12 Nominated by President)
Now	245 (229- States, 4- UTs, 12 Nominated)

4th Schedule

Deals with allocation of seats in Rajya Sabha  in States & Union Territories

Representation of  States	– Elected by elected members of Legislative Assembly – System of Proportional Representation by means of Single Transferable vote – Seats allotted to States on basis of population . eg : UP has 31 & Tripura has 1 – In USA, all States have equal representation irrespective of population and House is of 100 members ie 2 from each State
Representation of  UT	– Indirectly elected by specially elected electorate for this purpose – Only two UTs -Delhi and Pondicherry has representation Population of rest is so small that  they can’t be represented.
Nominated Members	– President nominates 12 members having special knowledge in Art, Literature , Science & Social Service

Duration of Rajya Sabha

• It is Continuing Chamber and can’t be dissolved(first constituted in 1952)
• 1/3rd of members retire after 2 years . Hence , each member has tenure of 6 years
• In first lot, this was done by lottery
• Constitution doesn’t provide for term of member of Rajya Sabha and left it for Parliament to decide it.
• Representation of People Act,1951 decided term would be 6 years

Lok Sabha

• Earlier Name – House of People (changed in 1954)
• Also known as First Chamber or Popular House
• It represents Indian people as whole

Membership

Maximum	552 (530-States, 20-UTs, 2-Nominated)
Now	545 (530-States, 13- UTs, 2-Nominated)

Representation of States

• Members directly elected by citizens
• By Universal Adult Franchise
• All citizens above age of 18 (Earlier 21 changed by 61st Amendment,1988) can vote and elect

Representation of Union Territories

• Constitution empowered Parliament to prescribe manner to elect members from UT
• Parliament enacted UNION TERRITORIES(Direct Election to House of People) Act , 1965
• Representatives from UTs to be elected by Universal Adult Franchise

Nominated Members

• President can nominate 2 Anglo-Indians if they are not adequately represented
• Initially till 1960, extended till 2020 by 95th Amendment,2009

Duration of House

• Not Continuing Chamber . It has normal term of 5 years
• Can be dissolved earlier by President & this can’t be challenged in court
• In case of Emergency, term can be extended beyond 5 years

System of Election for Lok Sabha

Territorial Constituency

• For purpose of direct election,  state to be divided into constituencies
• Number of Seats allotted to each State is  such that Ratio of Population and Seats allotted is same for all States

Readjustment

• After each Census , readjustment to be done in allocation of seats in LS to States and division of each State into Constituency
• For this , Parliament constituted Delimitation Commission Act in 52,62,72,2002
• 42nd Amendment – froze all till 2000
• 84th Amendment – froze number of Seats to States till 2025 on basis of 1971 census but States can readjust constituencies on basis of 1991 Census
• 87 Amendment -frozen number of Seats to States  till 2025 on basis of 1971 Census but States can readjust Constituencies on basis  of 2001 Census

Reservation

• Abandoned Communal Representation
• But accepted Reservation for SC & ST in proportion of their population
• Originally till 1960, 95th Amendment,2005 reserved till 2020
• But there are not any separate electorate for them

Delimitation Process

Readjustment

• After each Census , readjustment to be done in allocation of seats in Lok Sabha to States and division of each State into Constituency
• For this , Parliament constituted Delimitation Commission Act in 52,62,72,2002
  • 42nd Amendment – froze all till 2000
  • 87 Amendment, 2003 -frozen number of Seats to States  till 2026 on basis of 1971 Census but States can readjust Constituencies on basis  of 2001 Census

Side Topic : Why 1971 Census?

During 1970s, Government started Population Control via Family Planning. But States which took a lead in population control faced the prospect of their number of seats getting reduced . To allay this apprehension Forty-second Constitutional Amendment Act effected a freeze on the population figure with reference to the 1971 Census 

Delimitation Dilemma post 2026

• An increase in number of seats in both Houses of the Indian Parliament is expected post 2026.
  • Population 2011 Census :  121 Crore,
  • Population 1971 Census :  55 crore
• Hence, there is need to increase number of representatives .

• Presently, India has  highest population per MP . (15 lakh/MP)

• There is dilution of Principle of “One Citizen One Vote” . Eg : MP of Rajasthan represents 30 Lakh people while that of Tamil Nadu represents 18 lakh . This needs to be balanced .

• Concerns expressed by the States in 1976 which necessitated the freezing of seat allocation on the basis of 1971 population figures would appear to hold good even today
• There is a need to start a  debate now on how to deal with the problems that are likely to arise else we will be forced to postpone the lifting of the freeze to a future date as was done in 2001.

Membership of Parliament

Qualifications as laid down by Constitution 

• Citizen of India
• Not less than 30 years of age for Rajya Sabha
• Not less than 25 years of age for Lok Sabha
• Must have other qualifications as laid down by the Parliament

Qualifications made by  Parliament under Representation of Public Act, 1951

• Must be a registered elector for a Parliamentary Constituency (ie any constituency in India) 
• Above condition is same for both Lok Sabha  & Raj Sabha  (The requirement that a candidate contesting an election to Rajya Sabha from a particular State should be an elector in that particular State was dispensed with in 2003. The same was upheld by Supreme Court in 2006 in Kuldeep Nayyar vs Union of India . )
• He must be a member of SC/ST in any state or UT if he wants to contest a seat reserved for him . But , member of SC/ST can also contest a seat not reserved for him

Disqualification

• Holds Office of Profit  under Union or State Government
• Of unsound mind
• Undischarged  insolvent (ie declared bankrupt)
• Not citizen of India / voluntarily acquired citizenship of a foreign state
• Disqualified under any law made by the Parliament

Parliament disqualification under Representation of Public Act, 1951

• Must not have been found guilty of certain Election Offences or Corrupt Practices in the elections
• Must not have been convicted for any offence resulting in imprisonment for two or more years. But the detention of a person under a Preventive Detention law doesnot amount to disqualification
• Must not have failed to lodge an account of election expenses within time
• Must not have any interest in Government contracts /works/ services
• Must not be a Director or Managing Director or hold an Office of Profit  in a corporation in which government has atleast 25% share
• Must not have been dismissed from Government service for corruption /disloyalty to state
• Must not have been convicted for promoting enmity between different groups or for the offence of bribery
• Must not have been punished for preaching & practicing social crimes like untouchability, dowry etc

On the question whether a member is subject to any of the above disqualifications, the President’s decision is final . However, he should obtain opinion from the Election Commission & act accordingly .

Disqualification on Ground of Defection

Under the Provisions of Schedule 10

1. If he voluntarily gives up the membership of the Political Party on whose ticket he is elected to the house
2. If he votes /abstains from voting in the House contrary to any direction given by his Political Party
3. If any independently elected member joins any Political Party
4. If any nominated member joins any Political Party after the expiry of 6 months

The question of disqualification under Schedule 10 is decided by

1. Chairman for Rajya Sabha 
2. Speaker for Lok Sabha
3. And not by the President

In 1992, the Supreme Court ruled that the decision of the Chairman / Speaker in this regard is subject to the Judicial Review

Vacating seats Article  101

1 . Double Membership

• A Person cannot be a Member of both Houses .
• Representation of Public Act, 1951 provides :
  1. If a Person is elected to both Houses of Parliament , he must intimate within 10 days in which house he desires to serve . In default of such intimation, his seat in RS becomes vacant.
  2. If a sitting Member of one House is also elected to the other House , his seat in the first House becomes vacant.
  3. If a person is elected to two seats in a house , he should exercise his option for one . Otherwise both seats become vacant .
• A person cannot be a member of Parliament & State Legislature at the same time. If a person is so elected , his seat in Parliament becomes vacant if he doesn’t resign his seat in State Legislature within 14 days.

2. Disqualification

• Laid down by the Constitution & Schedule 10 also

3. Resignation

• May resign his seat  by writing to Chairman of RS or Speaker of Lok Sabha
• Chairman /Speaker may not accept the resignation if not voluntary or genuine

4. Absence

• Absent from meetings of the house for a period of 60 days can lead to disqualification
• Any period during which the house is prorogued / adjourned for more than 4 consecutive days is not counted in 60 days

Note :-

• If the disqualified person is elected to Parliament , Constitution has no provisions to declare the election void . This is dealt by Representation of People Act , 1951 which enables the High Court to declare the election void if disqualified candidate is elected
• Appeal to this shall lie with the Supreme Court

Council of Ministers

This article deals with ‘Council of Ministers  .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Introduction

• Parliamentary System of Government in India
• Council of Ministers headed by Prime Minister is the Real Executive (note – Prime Minister is not Real Executive but head of Real Executive)

Article 74

• Council of Ministers to Aid & Advice President
• There shall be a Council of Ministers headed by Prime Minister to aid & advise President  who shall in the exercise of his functions, act in accordance with such advice. President may require Council of Ministers to reconsider such advice but must act in according of advice tendered after such reconsideration
• Advice tendered cant be inquired into any court (implication – beyond purview of RTI )

Original	There shall be a Council of Minister with the Prime Minister at its head to aid and advice the President
42nd Amendment	President shall act as per the advice of Council of Ministers
44th Amendment	President can ask the Council of Ministers to reconsider the advice but bound by the advice if rendered again by Council of Minister

Article 75 – other provisions related to Council of Ministers 

• Prime Minister to be appointed by President & Council of Ministers  by President on advice of Prime Minister
• Council of Ministers shall not exceed 15% of strength of Lok Sabha (91st Amendment,2003)
• Ministers to hold office during pleasure of President
• Collective Responsibility of Council of Minister to Lok Sabha
• Minister if not already member of any house should become in 6 months
• Salaries & Allowances of Ministers to be determined by Parliament

Article 77

• Conduct of Business of Government of India
• All Executive action of Government of India to be taken in name of President
• Orders & other instruments made & executed in name of President shall be authenticated in manner as specified in rules to be made by President

Article 78

• Duties of Prime Minister
• To communicate to President all decisions of Council of Ministers
• President can seek information from the Prime Minister about important Legislative Bills / Administrative Decision being contemplated by the Government.
• If President may require consideration on matter on which decision has been taken but not considered by Council of Ministers

Nature of Advice

• 42nd & 44th Amendment – Advice of Council of Ministers binding on President
• Wherever constitution requires satisfaction of President, the satisfaction is not personal satisfaction but is satisfaction of Council of Ministers

Supreme Court Rulings

1971	Council of Ministers must always exist to aid  President even after dissolution of Lok Sabha & until new Council of Ministers form existing ministry may continue
1974	Except in matters where President is to act in his discretion, the President  has to act on aid & advice of Council of Ministers

Responsibility

1 . Collective Responsibility

• Fundamental Principle of Parliamentary System of Government
• Article 75 – Council of Ministers to be Collectively Responsible to Lok Sabha (Remember Article for Prelims)
• They would work as team and Swim & Sink together
• It also means that Cabinet Decisions bind all ministers even if they deferred in Cabinet meeting & it is duty of all  ministers to stand by & support them
• If minister disagrees with cabinet decision & is not prepared to defend it then he must resign

2. Individual Responsibility

• Article 75 – Minister holds office during pleasure of President
• Prime Minister can ask President to remove Minister in case of difference of opinion or dissatisfaction with performance of Minister

3. No legal Responsibility

It is not required that an order of President for public act to be countersigned by minister + courts are barred from inquiring into nature of advice rendered by ministers to President. (In Britain Minister has to countersign with Monarch)

Composition of Council of Ministers

• Doesn’t specify size & ranking of  Council of Ministers
• Determined by Prime Minister according to exigencies of time & requirement of situation

Cabinet	– Head of important departments like Home, Defence, Finance etc – Play most important role in deciding policies of nation
Minister of State	– Either given independent charge or can be attached to Cabinet Ministers – They aren’t part of cabinet & can’t attend Cabinet Meetings unless specially invited when something of their department is under consideration
Deputy Ministers	Are not given independent charge & are attached either to Cabinet Minister or Minister of State with independent charge
Deputy Prime Minister	– Some regimes  have created this post like Patel, Advani, Devi Lal etc – Appointed mostly for political reasons than administrative reasons

Cabinet

Smaller body consisting of 15 to 20 members & wasn’t part of Original constitution . Added later via 44th Amendment in Article 352(ie Council consisting of Prime Minister & other ministers of Cabinet Rank appointed under Article 75 but  also don’t mention its functions & powers )

Cabinet is nucleus of Council of Ministers with following roles

• Highest decision making authority
• Chief policy formulating body
• Supreme executive authority + Chief coordinator of  administration
• Chief crisis manager of nation 
• Exercises chief control over higher appointments like Constitutional Bodies or Secretariat
• Deals with all foreign policies & foreign affair

Role description of Cabinet

• Ramsay Muir – Cabinet is Steering Wheel of Ship of State
• Lowell – Keystone of Political Arch
• Gladstone –  solar arch around which all other bodies revolve
• Barker –  Magnet of Policy

Kitchen Cabinet

• Even smaller body than Cabinet
• Has become real centre of power
• Consist of 2 to 4 most faithful colleagues of Prime Minister with whom he can discuss all  problems
• Consist of not only ministers but outside members too
• Called so because decisions are already cooked and then placed before Cabinet

Merits

• Smaller & hence more efficient
• Can meet more frequently
• Help in maintaining secrecy

Demerits

• Reduces authority of Cabinet as highest decision making body
• Allows outer person to influence decisions of cabinet who is not responsible to Parliament

Prime Minister

This article deals with ‘Prime Minister of India .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Introduction

Prime Minister is De facto head of the nation

According to various political scholars, position of Prime Minister of India is as follows :-

Lord Morley	Primus Inter Pares( first among equals)
Jennings	Sun around which Planets revolve
H.J Lasaki	Pivot around which entire government machinery revolves
Munro	Captain of the ship of the state

Appointment of Prime Minister of India

Article 75	– PM shall be appointed by the President (but he is not free to appoint anybody as PM) – Can be member of any house ie Lok Sabha or Rajya Sabha
Delhi High Court Judgement , 1980	Person need not prove his majority before he is appointed as PM . President first can appoint PM and ask him to prove his majority in Lok Sabha in reasonable time
Supreme Court Judgement, 1997	Person who is not member of any house of Parliament can be appointed as Prime Minister & within 6 months he must become member of any of the house of Parliament   Note – But only those who have qualification to get elected within 6 months can be elected. Eg Non Citizen etc cant be elected under this provision.

Term of Prime Minister

• Term is not fixed
• But doesn’t mean he holds office with pleasure of President
• He remains in office till he enjoys majority in Lower House (Lok Sabha)

Powers of Prime Minister

1 . In relation to Council of Ministers

• Recommends President who can be appointed as Minister
• Allocate and reshuffles various portfolios among them
• Presides over the meetings of Council of Ministers
• He can ask minister to resign or advise President to dismiss him
• He can collapse Council of Ministers by resigning from his office

2 . In relation to President

It is duty of Prime Minister to

• Communicate the President all decisions taken by Council of Ministers relating to administration of the affairs of Union
• Furnish such info relating to the administration of affairs of union & any proposal of legislation as   President may call for
• Submit for consideration of Council of Ministers any matter on which decision has been taken by Minister but not considered by Council
• Advise President in appointment of Attorney General ,CAG, Chairman & Members of UPSC

3. Relation to Parliament

• Advises President with regard to summoning & proroguing of sessions of Parliament
• Announces government policies on floor of Parliament

4. Other powers

• Chairman of  NITI Ayog ,National Integration Council, Inter-State Council etc
• Play significant role in foreign policy of nation
• Chief spokesman of Union government
• Leader of party in power
• Political head of services

Vice President

This article deals with ‘Vice President of India .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Introduction

• Modeled on American Vice President (although some differences are there).
• Rank = Second highest officer after President

Election process of Vice President

• Indirect election by specially constituted electoral college by System of Proportional Representation by Means of Single Vote Transferable
• **Electoral college consist of all the members of both Houses of Parliament**

Qualification to become Vice President

• Should hold office for 5 years (that of Raj Sabha  member is 6 years)  from time of entering office(vacancy may be by any cause)
• Can resign any time by addressing resignation letter to President
• Can be re-elected any number of times
• Removal doesn’t require impeachment. Can be removed by resolution passed with Absolute Majority of Rajya Sabha & approved by Lok Sabha( no one removed till date)

Election Dispute

• All doubts can be inquired and decided by Supreme court only whose decision is final
• Can’t be challenged on ground that Electoral College was incomplete
• If election declared void, acts done by him before that are not invalidated

Powers & Functions

As ex officio Chairman of Rajya Sabha

• Act as Speaker of Rajya Sabha and has all powers similar to speaker of Lok Sabha.
• Resemble to Vice president of USA in this respect.

Act as President when office falls vacant

• But can act as President maximum for 6 months & new President must be elected within that period. In USA, if office of President falls vacant, Vice President remains President for remaining tenure of office
• No significant function in his capacity & called ‘Superfluous Highness ‘

President of India

This article deals with ‘President of India .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Constitutional position of President

• India has Parliamentary form of government . President is made only Nominal Executive , Real Executive being the Council of Ministers
• BR Ambedkar in Constituent Assembly –  President occupies same position as King in UK . 
• Nehru : “We did not give him any real power but we have made his position one of authority and dignity. “
• Presently, in age of Coalition Governments his importance has increased as he has discretion to choose PM

Process to elect President of India

• Electoral College to elect the President consist of
  1. Elected members of both Houses of Parliament
  2. Elected members of the Legislative Assemblies of States and UT of Delhi and Pondicherry

• Value of MLAs vote = (Total Population of State/Number of elected members to Assembly)/1000
• Value of MPs (Rajya Sabha  & Lok Sabha both) vote = (Total Value of all MLAs of all States / Total number of elected MPs in both Houses of Parliament)
• Vote occur according to process of Proportional Representation by means of Single Vote Transferrable using Single Ballot
• Quota = (Total number of valid votes/2)+1
• To win one have to achieve above quota
• All disputes regarding election are challengeable in Supreme Court only
• Can’t be scrapped on grounds that Electoral College is incomplete

Note – In Indian History, only once voting went to the Second Stage when VV Giri (Rebel Indira Faction of Congress) became President (1969) against NS Reddy (he too became President in 1977 when he was elected uncontested) 

Why Indirect Election is used to elect President

• President is only nominal head
• Conform with Parliamentary form of Government
• Very costly due to huge size of India
• Illogical to have proper election and not giving power after that

Qualifications to become President

• Person should be
  1. Citizen of India
  2. Above 35 years in age
  3. Qualified to be Member of Lok Sabha
  4. Don’t hold any Office of Profit under Union or State Government

Supreme Court’s Ruling –  President or VP or Governor or Minister of Union or state is not office of profit 

Term of office

• 5 years but office can’t fall vacant and same person can be re-elected any number of times (unlike USA)

Impeachment Process

• President can be impeached for violation of Constitution (although what violation of Constitution is, is not defined by Constitution)
• Process can initiate in any house of Parliament
• Resolution must be signed by 1/4 members of house and 14 day notice given to President
• Then must be passed by 2/3 majority of Total Members (present and voting) in both houses
• President has right to defend himself during whole process
• Note– Nominated MPs participate in impeachment & elected members of State Legislature don’t participate **
• This is Quasi Judicial function of Parliament

Vacancy in the office of President

• Can occur due to

Expiry of his tenure	Impeachment
By Resignation	Death
When his election declared void

• Election of next President occur before expiration of his term
• If any delay occur in conducting election , outgoing President continue to hold office even beyond 5 years
• In case of Death or resignation – new election within 6 months & next President gets his full 5 years term
• In Case of vacancy who fill office – Vice President >> Chief Justice of India >> Seniormost Judge of Supreme Court

Various powers of President

1 . Executive Powers

• All Executive actions  are taken in his name formally.
• He can make rules specifying manner in which orders & other instruments made & executed in his name should be authenticated.
• Can make rules for more convenient transaction of business of Union Government & for allocation of said business among Ministers (MCQ 2014)
• Appoints Prime Minister and Council of Ministers, CAG, Attorney General,Chief Election Commissioner and Election Commissioners, Chairman and Members of UPSC, Governors of States, Chairman of Finance Commission and so on
• Can seek any information relating to administration of affairs of Union & proposals for legislation from Prime Minister
• He can require Prime Minister to submit for consideration of Council of Ministers , any matter on which decision has been taken but matter not considered by Council
• Can appoint Commission for SC,ST and BC and Inter State Council
• Directly administers UTs through Administrators appointed by him
• Can declare any area as Scheduled Area and has powers wrt administration of Scheduled and Tribal areas

2. Legislative powers

• Can summon or prorogue Parliament and dissolve Lok Sabha and can also summon Joint Session of both houses
• Can address Parliament at commencement of session of each year & new house
• When office of Speaker & Deputy Speaker  are VACANT  not present can appoint any member to Preside in Lok Sabha  & similarly in Rajya Sabha
• Nominate 12 members to Rajya Sabha
• Can nominate 2 members to Lok Sabha from Anglo Indian community
• Decide on disqualification of any Member of Parliament with Election Commission
• Certain types of bills require his permission to be introduced
• Can promulgate ordinances when both houses are not in session
• When bill is passed by both houses ,it require his consent to become act. He can do three things –
  1. Give Consent ,
  2. Withhold Consent or
  3. Send back for reconsideration

but if Parliament send it back with or without Amendments , he has to give consent

• But when Governor send  bill to President, he can send it back as many number of times as he wish

3. Financial powers

• Money Bill can be introduced only after taking his recommendation
• He causes to be laid before Parliament Annual Financial Statement (AFS)
• Can make advances out of Contingency Fund to deal with unforeseen condition
• Constitute Finance Commission after  5 years or before

4. Judicial powers

• Appoints Chief Justice and Judges of Supreme Court &High Courts
• Can seek advice from Supreme Court on any question of law but that advice is  not binding on him (Article 143)
• Can grant Pardon, Reprieve, Respite, Remission or Commute when punishment is by court martial or for offence against Union Law or Death Sentence

5. Diplomatic Powers

• International Treaties are concluded in his name
• Represent India in International Forums
• Send and receives Ambassadors and Diplomats

6. Military Powers

• Supreme Commander of Indian Armed Forces
• Appoints Chief of Army , Navy and Air-force
• Can declare war and conclude peace subject to Parliamentary approval

7. Emergency Powers

• To deal with unforeseen conditions, can  declare emergency-National, Presidents Rule  & Financial Emergency .

Presidential Discretions

• President can send back the advice given by the Council of Ministers and ask the Council to reconsider the decision.
• President also has veto power that he can send back the bill passed by Parliament for reconsideration . (This ‘veto’ power is limited because, if the Parliament passes the same bill again , then, the President has to give assent to that bill) 
• There is  no mention in the Constitution about the time limit within which President must send the bill back for reconsideration. This means that the President can just keep the bill pending with him without any time limit. 
• In some cases, President has situational discretion (above are constitutional discretions)
  • Appointment of PM when no Party has clear majority or when PM in office dies suddenly & there is no obvious successor
  • Dissolution of Lok Sabha when Council of Ministers has lost its majority

In era of Coalition governments since 1989, there is greater scope for presidential assertiveness when governments are not stable and coalitions occupy power.

Assertive Presidents

• President’s position is comparable to British Monarch but he is elected and not hereditary  
• In case of clear cut majority , President doesn’t have much autonomy. But his position becomes very important at the times of unstable coalition governments
  • President KR Narayanan  returned advice of Council of Ministers twice to reconsider it. Once regard to  imposition of State Emergency in Bihar (1997)  & state of Emergency in UP (1998). 
  • President Zail Singh insisted Rajeev Gandhi for regular communication with the President under Article 78
  • Dr APJ Abdul Kalam asked to review advice regarding issuance of Ordinance for Amending Represemtation of People Act .

But apart from that, President has to act on advice of Council of Ministers. This fact was well understood from the times of first President Dr Rajendra Prasad , when he had reservations about Hindu Code Bill and First Constitutional Amendment . But he was advised by the Attorney General that President has to go by advise of Council of Ministers.

Question : Is President a rubber stamp?

Rubber stamp, as a political metaphor, refers to a person or institution with considerable de jure power but little de facto power; one that rarely or never disagrees with more powerful organs.

Arguments which prove that he is a rubber stamp

• President works on aid and advise of Council of Ministers.
• All the appointments done by President are done according to the recommendation of Council of Ministers.
• 42nd Amendment made it clear that advice of Council of Ministers is binding

But, following points prove that he is not mere rubber stamp and has more ideological role to play

• Constitutional discretions like Veto Powers , power to send advice of Council of Ministers for reconsideration etc acts as check on hasty decisions which are prima facie incorrect or illegal.
• Situational discretion to select PM when no party wins clear majority. In age of coalition government, this has become imp
• His speeches like Speech before Republic Day have great power to send message to whole nation.
• President is ever present authority, for parliamentary governments could fall anytime

Whether he will act as rubber stamp or not depends on personality of President as well. We have example of assertive Presidents like RK Narayanan & Giani Zail Singh as well who didn’t allow themselves to be used as rubber stamps .

Hence, we can say that although President in India is not as powerful as President of USA due to fact that India has parliamentry form of government . But he is not a rubber stamp as he has more ideological role to play.

Veto Power of President

Bill becomes Act only when it receive President’s assent

But when bill reaches President, he has three options 

• Can give assent,
• Can withhold assent or
• Can return  it for reconsideration

( but if Parliament again passes it with or without amendment then President has to give assent )

1 . Absolute veto

Withholding of assent to bill passed by legislature and bill then ends and not become an act

Indian President has this veto

• Wrt Private Member’s bill
• When Cabinet resigns after passing bill and new cabinet advises not to give assent

2. Qualified veto

• Can be overridden by Legislature with a higher majority
• Not present in India but American President  empowered with this .  First bill can be passed by 1/2 majority but if sent back then have to pass by 2/3rd Majority

3. Suspensive veto

• Can be overridden by Legislature with Simple Majority
• Indian President has this
• When any bill except Money Bill comes to President for approval, he can send it back for reconsideration but if Parliament again passes it ,then he has to give approval

4. Pocket veto

• Taking no action on bill passed by Legislature
• Indian President has  this
• In all bills, President can send Bill for reconsideration to Parliament . But there is no mention in the Constitution about the time limit within which the President must send the bill back for reconsideration (unlike USA where time is 10 days).
• Exception – For any Constitutional Amendment,  President has to give assent (added by 24th Amendment,1971)

Use of Pocket Veto :  1986, => Indian Post office (amendment) bill (curtail the freedom of press) =>  President, Giani Zail Singh 

In case of state too, President has veto power

When bill passed by State Legislature is presented to Governor , he has 4 options

• Can give Assent
• Can withhold his Assent
• Can return the bill for Reconsideration
• Can reserve bill for consideration of President

After receiving bill from Governor, President has three options

• Can give his Assent
• Can withhold his Assent
• Can direct Governor to return bill for reconsideration . But if Legislature again passes it and send to President for his assent ,  President is not bound to give assent . He has Absolute Veto in this Case 

Punchhi Commission Suggestion : Issue here – Bills so submitted to President sometimes are indefinitely retained at the Central level  allowing the democratic will of the State Legislature to be restricted  . President should decide consenting or withholding assent in reasonable time of six months 

Ordinance  Making  Power of  President

• Article 123 – (same powers to Governor under Article 213)
• President has power to promulgate Ordinance which has same power as Act but temporary in nature
• To deal with unforeseen conditions.

Limitations

• Can be promulgated only when both Houses of Parliament are not in session ( in recess)
• Can make only when he is satisfied that Immediate action is required
• Can be questioned in court of law and declared malafide
• Should be passed within 6 weeks  when house reassemble . Hence, maximum life can be 6months & 6 weeks
• Ordinance can’t be issued to amend constitution

Why frequent resorting to Ordinance Route?

• Reluctance to face the legislature on particular issues.
• Lack of majority in the Upper House.
• Repeated and wilful disruption by opposition parties.

History of Ordinance making

• DC Wadhwa Case – same Ordinance cannot be re-promulgated again and again
• GV Mavalankar in Constitution Assembly Debates : Ordinance are inherently undemocratic & can’t be justified except in case of extreme urgency or emergency.
• Source from where Ordinance came to Indian Constitution (Government of India Act, 1935) ,  it was quite a non-Parliamentary provision and forced into it to nullify the powers of legislature  . But constitution makers took great care & added condition of utter emergency while promulgating Ordinance
• In mid 80s:
  • Bihar Government began practice of issuing and renewing Ordinances at regular interval.
  • DC Wadhwa Judgement – SC declared that same Ordinance cant be promulgated again & again.

Present Examples where Ordinances were Repromulgated

• TRAI Ordinance ,1997, SARFAESI 2002 ; Electricity regulation ordinance to name a few were promulgated in this fashion where nobody can prove that there was utter emergency 

Key debates relating to the Ordinance making powers of the Executive

Constitutionally important issues that have been raised include:-

• Necessity for ‘immediate action’ while promulgating an Ordinance
• Granting of Ordinance making powers to the Executive which is against Principle of Separation of Power
• Repromulgating Ordinances and threat  it poses to the sovereignty of Parliament

Note :-  With regard to issuing Ordinances as with other matters, the President acts on the advice of the Council of Ministers . 

Pardoning Power of President (Article 72)

• Article 72 gives this power to President
• It gives power to Pardon, Commute , Remission, Respite & Reprieve  to President

Pardon	It removes both sentence and conviction (Note – Only President can Pardon death sentence. Governor can Commute death sentence but can’t Pardon)
Commutation	Substitution of punishment with mild form of punishment
Remission	Reducing period of sentence keeping character same Note – not applicable for death sentence
Respite	Awarding lesser sentence in place of originally awarded sentence due to special fact like disability or pregnancy
Reprieve	Stay of execution of sentence for temporary period to enable convict to seek pardon or commutation from President (just stay order)

Offences covered under this

• Punishment for offence against Union law
• Against Court Martial
• Sentence of Death

Person is allowed to approach President only after getting exhausted all other legal ways & when person approaches President,  he approaches with petition called Mercy Petition

• Pardoning power is independent of Judiciary
• Basic idea is correction of Judicial Errors
• President doesn’t function as Court of Appeal
• President can’t be compelled to give hearing to petitioner
• Decision of President is final & courts can’t interfere with decisions of President .
• But courts can look into whether he has considered all relevant material or not

Side Topic: How President decides matter of life & death

• President does not exercise this power on his own — he has to act on the advice of the CoM . 
• View of Ministry of Home Affairs (MHA) is taken as the view of the Cabinet, & President decides mercy petition accordingly

• There is no fixed time-frame to decide mercy petition => both  Ministry of Home Affairs and President have sometimes sat on cases for years.

• Different President’s have decided mercy petitions differently.
  • APJ Abdul Kalam decided only two  
  • K R Narayanan  failed to decide even single mercy petition

• Central governments is also guided by political considerations  . MHA has sometimes jumped the queue like that of Ajmal Kasab, who was hanged in 2012. 

Supreme Court Judgement regarding delay  in deciding mercy petitions as a ground for commutation

• Under Article 72 and Article 161 ,  President and  governors respectively are given this power
• D.D.Basu : object of the power  was to “correct judicial errors .” But unfortunately, this power  has prevented victims from receiving true justice 
• President and Governors have to exercise their power to pardon on the advice of the Council of Ministers.
  • Since the power has not been exercised expeditiously, a large number of mercy petitions are pending with the President of India.
  • This  has resulted in unreasonable delays in the execution of the death sentences.
  • Death row convicts languish in jail for more than twenty years under constant fear of death

Judicial Cases in this regard

1 . Shatrughan Chauhan vs Union of India , 2014

• Supreme Court commuted the death sentence of 15 convicts on the grounds of inordinate delays 
• Supreme Court observed that the Right to seek Mercy under Articles 72 and 161 is Constitutional Right 

Argument for Commutation in case of Inordinate delay

• Convict on death row is entitled to his fundamental rights till the execution of sentence.
• When death sentence is awarded , he constantly lives under fear  of being executed . =>  Article 21  is violated
• If it is   proven that  undue delay has happened in disposal of mercy petitions (ie his Article 21 is being violated), Court, by virtue of power under Article 32, can commute the death sentence into imprisonment for life.

2. Navneet Kaur v. State of NCT of Delhi and Another

• Supreme Court commuted the death sentence of Devender Pal Singh Bhullar, to life imprisonment both on the ground of
  1. inordinate delay of eight years
  2. insanity.

Negative impact of these judgements

• As a result of such leniency, a number of hardcore convicted offenders including the assassins of Rajiv Gandhi and close aides of the forest brigand Veerappan have been freed from the gallows.

Right to Constitutional Remedies , Writs and Issue of Article 35A

This article deals with ‘Right to Constitutional Remedies , Writs and Issue of Article 35A .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Right To Constitutional Remedies

• Article 32 gives Right to Constitutional Remedies . It constitutes Right to move to Supreme Court for enforcement of Fundamental Rights
  1. Supreme Court has power to issue writs for enforcement of Fundamental Rights
  2. Parliament can empower any other court to issue writs without doing prejudice to powers of Supreme Court & other court don’t include High Court
  3. President can suspend this right during National emergency

• Supreme Court declared this to be basic feature of Constitution
• Most important Article according to BR Ambedkar. Constitution  would be nullity without this

Types of Writs

Writs concept borrowed from English law where they are called Prerogative Writs

There are 5 type of writs

1 . Habeas Corpus

• Meaning –  to have the body of
• Order issued by court to public authority  as well as private individual who has detained other person to produce body before it

2. Mandamus

• Meaning –  We Command
• Issued by court against public official(not private) asking him to perform his official duties that he has failed or refused to perform
• Against both judicial & administrative authorities (tribunal, corporation, inferior court, tribunal or govt)

3. Prohibition

• Meaning – to forbid
• Issued by higher court to lower court
• To prevent the latter from exceeding its jurisdiction
• Unlike other writs it directs inactivity (other calls for activity)

4. Certiorari

• Meaning –  to be certified
• Issued by  higher court or tribunal to lower court
• Either to transfer a case pending with later to itself or to squash the order of later issued on grounds of excess of jurisdiction, lack of jurisdiction or error of law
• Unlike Prohibition which is preventive it is both preventive & correctiv

5. Quo Warranto

• Meaning –  By what authority
• Issued by court to inquire into legality of claim of person to public office –  office of permanent character created by statute & not of ministerial office or private office
• Can be sought by any interested person(rest by aggrieved person)

Armed Forces & Fundamental Rights

• Article 33 –  empowers Parliament to abrogate Fundamental Rights of members of Armed forces, police forces, intelligence agencies, para military force to ensure proper discharge of duty
• Any such law can be made by parliament. Accordingly parliament enacted Army Act, Navy Act, Air force Act, BSF Act etc
• Also include non combatants like barber, cook etc in armed forces
• Can also exclude court martial from writ jurisdiction of Supreme Court & High Courts

Martial Law & Fundamental Rights

• Article 34 – provide restrictions on Fundamental Rights while Martial Law is in force in any area
• Empowers Parliament to indemnify any government servant or any other person for any act done by him in connection with maintenance or restoration of order while martial law is in place  & this cant be challenged in any court
• Concept of Martial law taken from English law but expression Martial Law is not defined anywhere in constitution . It Literally means Military Law
• Martial law can be declared in any area within India under extraordinary conditions like war, rebellion, riots  or violent resistance of Law
• Supreme Court Judgement – declaration of Martial Law doesn’t  result in suspension of Habeas corpus writ

Effecting Certain Fundamental Rights

• Article 35 –  Power to make laws to give effect to certain specified FR is with Parliament & not state legislature
• Ensure uniformity throughout India

Article 35A

• Article 35A of the constitution empowers J&K legislature to
  • Define state’s “permanent residents” and
  • Their special rights and privileges

without attracting a challenge on grounds of violating the Right to Equality of people from other States or any other right under the Constitution

• Hence, Article 35A protects certain provisions of the J&K Constitution which
  • Denies property rights to native women who marry outside the State.
  • The denial of these rights extend to her children
  • bars non-J&K state subjects to settle and buy property in J&K.

Issue : Constitutionality of Article 35 A challenged

Question of constitutionality of Article 35A is likely to be handled by a 5-judge constitution bench.

• Article 35A was incorporated into the Constitution in 1954 by a Presidential order . Hence, it was added  without undergoing the procedure for constitutional amendments as laid down in Article 368. It was issued in exercise of the power conferred under Article 370 (1) (d) of the Constitution. Whether such power also extends to inserting a new Article in the Constitution is contentious.
• Discriminatory against non-residents as far as government jobs and real estate purchases are concerned. Thus, violating fundamental rights under Articles 14, 19 and 21 as it treats non-permanent residents of J&K as ‘second-class’ citizens. 
• Discriminatory against women who marry outside state

Why it Shouldn’t be removed?

1. Article 370 & 35 A are complementary and Article 370 will be nothing if Article 35 A is not there
2. Large scale apprehension in the valley that it will bring large scale demographic changes in Muslim majority valley.
3. Kashmiris will be further alienated . At this time, when situation in Kashmir is already very tense, such adventure is uncalled for.

Cultural and Educational Rights

This article deals with ‘Cultural and Educational Rights .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Article 29

• Article 29 has two clauses
  • Any section of citizens residing in any part of India having distinct language, script or culture has right to conserve it
  • No citizen shall be denied admission into any educational institute maintained by state  or receiving aid on grounds only of religion, race, caste & language
• First clause right of group &  second right of individual citizen

• Supreme Court’s ruling regarding this
  • Scope not restricted only to minorities as commonly assumed
  • Section of citizen include minority as well as majority
  • Right to conserve language also include right to agitate for it and making promises for conservation of language of section of people don’t amount to corrupt practices under Representation of People’s Act ,1951

Article 30

• Grant following rights to minorities( religious or linguistic)
  • Right to establish and administer educational institutions of their choice
  • Compensation amount fixed by state for compulsory acquisition don’t apply to minority educational institution (44th Amendment) 
  • In granting aid, state shall not discriminate against educational institute managed by minority
• Minority include both religious and linguistic minority
• Reasonable restrictions can be imposed to promote efficiency & reduce maladministration.
• However term minority is  no where defined in the constitution

To claim the benefits conferred by Article 30, institution must prove  (by Supreme Court in case involving Linguistic Minority)

1. Institution is established by members of community which are in minority in that state
2. Institution is administered by members of community which are in minority in that state
3. Institution is primarily for the benefit of the minority community of the state where it is established.

What is meant by minorities ?

Constitution hasn’t defined term Minority . But it is defined by various Acts

• National Commission for Minorities Act , 1993 : 6 communities have been notified ie Muslims, Sikhs , Buddhist , Christians , Parsis and Jains. (no linguistic minority has been notified till date.)

• TMA Pai Foundation vs State of Karnataka (2003) : Basis of determining (linguistic) minorities shall be population in the concerned state . Court also noted the fact states are re-organised on the basis of language while arriving at given decision

International Perspective

These rights are recognised internationally by

1. UN Declaration on Human Rights (UDHR)
2. International Covenant on Civil and Political Rights (ICCPR)

Issues related to Cultural and Educational Rights

Issue 1: Minority Status of Aligarh Muslim University (AMU) & Jamia Milia Islamia (JMI)  in Question

2019 : Issue regarding Minority Status of AMU referred to 7 Judge Bench of Supreme Court

History

• AMU was founded by Sir Syed Ahmed Khan as the Madrasat ul Uloom in 1875 in Aligarh
• In 1920,  Indian Legislative Council passed act to make it University.  

After Independence

• 1966 : SC said in Azeez Basha case that it is not clear from Act of 1920 that AMU was established by Muslims of India & hence it cant be given Minority Status
• 1981 : Parliament clarified  via Amendment => AMU was established by Muslims , although Act was made by Parliament.
• 2005  : Allahabad HC declared 1981 Amendment to be unconstitutional

Reservation policy

• In minority institutions , 50% seats can be reserved for that minority and rest 50% seats are open
• Apart from that  their land could only be acquired by the government after paying compensation.

Arguments against their Minority Status

• Jamia & AMU setup by Acts of Parliament. Government in secular country cant setup religious institutions.
• Reservations on communal lines are not in the interest of National unity and Integrity
• Due to minority character given to these universities, they do not reserve 50% seats for SC/ST and OBC’s, which is against Social Justice

Arguments in favour of their minority status

• In  Azeez Basha versus Union of India case,  AMU was not a party
• In Azeez Basha case, Supreme Court ruled that AMU was not a minority institution as it was set up by the British legislature, and not by Muslims. But  any central university can only be setup by an Act of Parliament( or state Legislature) 
• Sachar Committee => Muslims in Higher Education are very low due to absence of reservation for Muslims . Hence, such institutes are in national interest
• Right given under Article 30 is to prohibit state against making discrimination with minority institutions while giving any aid and not prohibiting state in funding minority institutions
• Since Universities can only be established by Act of Parliament, so question was asked whether Art 30 don’t hold good for Universities . In The Kerala Education Bill case, SC stated that the key to understanding the true meaning  of Article 30(1) is the phrase “of their choice”. It means there is no limitation on  types and nature of the educational institutions that minorities can establish.

Issue 2: Are Sikhs religious minority in Punjab ? Or Muslims in J&K or Lakshadweep? Or Christians in Meghalaya/Nagaland?

Cases going on

Case 1 : Are Sikhs Minority in Punjab 

• High Court rejected the minority status to Sikhs in Punjab on the grounds that the community was numerically strong.
• Moreover, it held that the Punjab government had produced no material to show that Sikhs “apprehended deprivation of their religious, cultural or educational rights in the State of Punjab from any other community.” (case has to be settled by Supreme Court)

Case 2 : Are Hindus minority in Punjab ?

Apex court in DAV College case held Hindus as religious minority in the State of Punjab and thus there can be reservation of Hindus in the minority institutions run by them in the Punjab

Case 3 : Are Muslims Minority in J&K?

• Case is also in Supreme Court.

Constitutional issues involved 

• Minority is nowhere defined in Constitution –  As a result Supreme Court has to define it in constitutional cases.
• There are two types of minorities ie religious & linguistic but can same consideration of geographical area will apply to both is other issue.

Earlier cases

• Bal Patil judgment (2005) : Supreme Court held that a community should be protected as a minority only if there was an apprehension that the community may be “dominated” by other communities.

• Kerala Education Bill case , 1957 :  Court held that minorities are to be defined at the level of state 

• Constitution Bench of  11-judge in the historic 2002 T.M.A. Pai Foundation judgment held that it is the State, and not the whole of India, for determining a community as a linguistic minority. 

Suggestion

• One approach can be to
  • Define religious minorities nationally and
  • Linguistic minorities on the basis of the state.

• Other approach can be ,
  • If it is a Parliamentary law that is being challenged, minorities must be defined nationally.
  • If it is a state law, then minorities must be determined at the state level keeping in view numerical inferiority within the state.

Right to Freedom of Religion

This article deals with ‘Right to Freedom of Religion .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Article 25

Freedom of conscience & free profession, practice & propagation of religion

• Available to all citizens and non citizens
• These are actually religious rights of individuals
• This article also says that Sikhs has Right to carry kirpan & Hindu in constitution also include Sikhs , Buddhist and Jains

Controversies

• Freedom of Religion isn’t unlimited & Government can impose restrictions  to protect public order, morality and health.
  • Government can interfere in religious matters for rooting out certain social evils. For example in the past, the government has taken steps banning practices like sati, bigamy or human sacrifice. Such restrictions cannot be opposed in the name of interference in right to freedom of religion.
  • But when government seeks to restrict some activities of any religious group, people of that religion feel that this is interference in their religion.
• Constitution has guaranteed the right to propagate one’s religion. This includes persuading people to convert from one religion to another. However, some people resent conversions on the ground that these are based on intimidation or inducement. The Constitution does not allow forcible conversions. It only gives us the right to spread information about our religion and thus attract others to it.

Article 26

Freedom to manage religious affairs

• All religious denominations has following rights
  • Right to establish & maintain institution for religious & charitable purposes
  • Right to manage its own affairs in matters of religion
  • Right to acquire and own movable and immovable property
  • Right to administer such property in accordance with law
• These are rights of religious denominations as whole

Doctrine of Essential Practices

• First propounded in  Shirur Mutt Case
• In India , judiciary can prescribe outer limits of what could be called the sole domain of religion and aspects beyond essential practices have no protection from state intervention under Article 26.
• But this doctrine has been propounded by judiciary itself & exhibit signs of judicio-papism ie  where judges can completely overrule religious authority.
  • Acharya Jagdishwaranand Avdhoot vs Commissioner of Police, Calcutta (1984) :  Tandava is not Essential Religious Practice 
  • Mohammad Hanif Quareshi vs State of Bihar (1958) :  Cow Slaughter on Bakarid  is not essential practice of Muslims
  • In news during Babri Masjid Case : Ismail Faruqui v. Union Of India (1994) : Mosque is not an essential part of the practice of Islam and Namaz (prayer) by Muslims can be offered anywhere . 

Article 27

Freedom from payment of taxes for promotion of any particular religion

• State shouldn’t spend money collected from tax on promotion or maintenance of any particular religion
• This doesn’t prohibit to levy fees. Fee can be levied on pilgrims to provide them some special service or safety measure

Article 28

Freedom from attendance at religious worship or instruction in educational institutions wholly maintained by state

Types of educational institutions and Article 28

Wholly maintained by state	Religious instruction completely prohibited
Institutions administered by state but established under any trust	Religious instruction permitted
Institutions recognised by state Institutions receiving aid from state	Religious instruction permitted on voluntary basis

One must distinguish between Religious Instructions and Academic Pursuit . In DAV College vs State of Punjab (1971) , where Guru Nanak Dev University , Amritsar provided for pursuing of academic career in teachings and philosophy of Guru Nanak Dev ji . Question was whether state was promoting religion & imparting religious instructions. SC said we have to distinguish between religious instruction and academic pursuit in teachings of Guru Nanak Dev ji cant be said to be promoting any religion or imparting religious instruction.

2019 Issue : Chanting of Shaloka Tamasoma Jyotir Gamaya in Kendriya Vidyalaya?

• Does chanting Sanskrit Shloka from Upanishads in prayer in Kendriya Vidyalayas amount to religious instructions and should this practice in KVs that operate under Educational Ministry be stopped ?
• Supreme Court referred this petition to Constitutional Bench

Issues Related to Freedom of Religion

Issue 1: Right to Convert  & Anti-Conversion Laws

In news because :

• 2018 : Hadiya Case Judgement
• “Ghar Wapsi” i.e. re-conversion attempts by certain right-wing organizations fueled controversy around religious conversions.  

Is Right to Convert a Fundamental Right

• Article 25 : freedom of conscience and free profession, practice and propagation of religion . The term propagation implies transmit one’s religion by an exposition of its tenets  without any element of fraud, coercion and allurement for conversion.

• It may be pointed out that the right to convert other person to one’s own religion is distinct from  individual right to get convert to any other religion on his own choice. The latter is undisputedly is in conformity with the freedom of religion  while the former is the subject of long prevailing controversy .

Leaders View

Gandhi	He opposed proselytising and people of one faith trying to convert others.
Ambedkar	He saw conversion as a means of social elevation and a way to revolt against the discrimination of caste system. Ambedkar’s 1956 conversion to Buddhism inspired about 3,65,000 erstwhile “untouchables” to follow suit.

Judicial Interpretations / Important Cases regarding this issue

Arun Ghosh vs State of West Bengal  (1950)	– Attempt to raise communal passions through forcible conversions would be a breach of public order  – Supreme Court  held that the States were empowered under Entry 1 of List II of 7th Schedule to enact local Freedom of Religion laws to restore public order making forcible religious conversions a cognizable offence
Rev. Stanislau vs State of MP (1977)	– Article 25 does not grant the right to convert other persons to one’s own religion but to transmit or spread one’s religion by an exposition of its tenets. – Upheld the validity of two  anti-conversion laws of the 1960s — the Madhya Pradesh Dharma Swatantraya Adhiniyam and the Orissa Freedom of Religion Act.
Hadiya Case Judgement (2018)	– Hadiya was 26 year old girl who converted to Islam and married Muslim man – Person’s right to choose religion and marry is intrinsic part of liberty.

Issue 2: Women Entry in Temples 

Related Cases that are going on

• Sept 2018 (v imp) : Sabarimala Shrine , Kerala : SC in Indian Young Lawyers’Association v/s State of Kerala Case declared the restriction on women “of menstruating age” from entering sanctum sanctorium as ultra vires the Constitution.  (Belief that Lord Ayappa is Naisthik Brahmachari)

• Haji Ali Dargah. August 2016 – Bombay HC recognised women’s right to enter and worship at Dargah

• March 2016:  HC recognised women’s right to enter in Shani Shingnapur Temple (Maharashtra)  .

• Dec 2017 : Historically, the women & descendants of women who marry outside the religion have not had access to Zoroastrian religious institutions. The SC is deciding a case that who can have access to  temples.

Arguments : Why State should intervene / Why women entry must be allowed

• Infringes Fundamental Rights: Ban imposed on women devotees “contravenes Articles 14 (equality before law),  and 25 (free profession and practice and propagation of religion) of the constitution”.

• Fundamental Duties – Article 51A(e)  => Renounce all practices derogatory to dignity of women.

• Views of founding fathers : B.R. Ambedkar was  of view that most powerful tool by which an unequal society expressed and reinforced its hierarchies is through denial of equal access to religious spaces & this had to be smashed.

• Nature of Indian Secularism : India do not have a “wall of separation” between religion and state that, eg , exists in  US.

• Infringes Right against Untouchability : Exclusion is mainly based on Purity – Pollution argument as women are considered impure due to Menstruation

• Doctrine of Essential Practices in Religious Affairs :  practice of not allowing women to enter temples is certainly not Essential Practice

Way forward : SGPC ACT (management of Sikh Gurudwaras) gives equal rights to women to participate in all religious activities and even hold any office including Chief of SGPC . Other religions can learn from this.

Right against Exploitation

This article deals with ‘Right against Exploitation .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Article 23

• Prohibition of traffic in human beings and begar & other similar forms of forced labour
• Note – Just Begar and Forced Labour is prohibited by Constitution. In all cases regarding this Article , thing to interpret was what constitute  Force in Forced labour which was widened by SC to things like
  • Legal compulsion (demanding labour by making law),
  • Physical Compulsion ,
  • Psychological Compulsions ,
  • Economic Compulsions  and
  • Any factor that deprives a person from Choices and Alternatives

• Traffic in human beings include
  • Selling and buying men,women & children like goods
  • Immoral traffic in women and children including prostitution
  • Devadasis
  • Slavery

• Law: Bonded Labour Systems(abolition) Act,1976
• Available to both citizens & non citizens and against state & private persons

Note : Issue of Women being bought by Haryanvi and Punjabi men from West Bengal, Odisha , Chattisgarh etc known as ‘Paros’ , Molkis or Kudesan in common language due to low Sex Ratio in these states also comes under Human Trafficking .

Cases

• Constitution doesn’t specifically define Begar . It was defined by Supreme Court as  Labour extracted without giving remuneration . 

• In Thangkul vs Shailer Case regarding Manipur based Custom in which each person of village has to give one day of free labour to headman was held violative of Article 23 . Hence, Cultural Customs don’t stand in front of Article 23

• (Landmark Case) Asiad Case(mentioned in NCERT too) in which Labour Laws of Minimum wages were violated by Union of India, Delhi Development Authority and Delhi Administration .  SC ordered that  paying less than Minimum Wage comes under Forced Labour even if it is Voluntarily agreed .

Article 24

• Prohibition of employment of children below age of 14 years in any factory, mine or other hazardous activities 
• But it doesn’t prohibit their employment in any harmless or innocent work
• Main legislation: Child Labour(Prohibition & Regulation)Act,1986 amended in 2016
  • 1986 Act banned Under-14 employment only in 18 hazardous industries .
  • New Act bans Under-14 employment in all  occupations except Work done in farmlands, family enterprises and audio visual entertainment industry (FFE)  , provided it is done after school hours and during vacations

Cases

• (Landmark Judgement): MC Mehta vs State of Tamil Nadu / Sivakasi Firework Factories Case –  Public Interest Litigation against practice of employing children in Sivakasi fireworks factories . 

• Bandhua Mukti Morcha vs Union of India / UP Carpet Factories Case : Against employment of Children in Carpet Industry in UP . 

• Bachpan Bachao Andolan vs Union of India – SC instructed government to prohibit the employment of children in Circus business . The salvaged children to kept in Protective Homes till they achieve age of 18 years and design rehabilitation 

Important Note

• In 2017, India ratified International Labour Organisation (ILO) Convention 182 on the worst forms of child labour and Convention 138 on Minimum Age of Employment.
• These were to
  • Appropriately raising the age of employment in hazardous occupations from 14 to 18 years. India has already done so by passing of the Child Labour (Prohibition and Regulation) Amendment Bill, 2016  
  • Prohibit and eliminate the worst forms of child labour: These Include 
    • child slavery
    • child prostitution
    • use of children for illicit activities such as drug trafficking, and
    • exposure to any hazardous work which is likely to harm the health, safety or morals of children.

Amendments to Child Labour(P&R) Act, 1986

• 1986 act was weak and ineffective in curbing the child labour . It prohibit employment of children below 14  in 18 occupations 
• Contradiction with Article 21A and Right to Education (RTE) 2009 which make schooling compulsory for 6-14 years old
• Does not regulate adolescent labour as mandated by ILO conventions 138&182

Changes in new Act

• New Act bans Under-14 employment in all  occupations except Work done in farmlands, family enterprises and audio visual entertainment industry (FFE)  , provided it is done after school hours and during vacations
• Prohibit employment of adolescent in 14-18 years age in occupations unsuitable to their age
• Punishment :
  • Employer : punishment of 20,000 fine on first instance and 50,000 on second
  • Parents exempted on first instance , 10,000 subsequently

Analysis

Benefits

• Act is aligned with the statutes of the International Labour Organization (ILO) convention.
• Inline with Right to Education . Hence , children can get primary education  till 14 years
• It takes into account the realities of family enterprises where children help their parents

Problems

• Law opens loopholes to sustain or encourage child labour . Family Enterprise fall in unorganised sector which is an amorphous legal entity difficult to govern
• ‘Family’ has not been defined. As UNICEF India has commented, this could lead to more children working in unregulated conditions.
• Adversely affect the girl child . They do domestic work

Right to Freedom

This article deals with ‘Right to Freedom .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Article 19

Guarantees 6 Rights to Citizens but these rights are

• Protected against only state action & not private individual
• Available to citizen only & not to foreigner & legal persons

Speech	Movement
Assembly	Residence
Association	Profession

Article 19(1)(a) Freedom of Speech & Expression

Citizen has right to express his views, opinion, belief etc via writing, painting , picturing etc

SC verdicts has increased scope of this to other areas

• Right to propagate ones & other’s view
• Right to Silence
• Freedom of press
• Right to telecast ie state don’t have monopoly on electronic media
• Right to know about government activities

Romesh Thapar vs State of Madras (1950) – Freedom of Speech and of Press laid at the foundation of all democratic organisations , for without free political discussion there is  no public education , which is  essential for proper functioning of popular government .

First  Amendment  to  Indian  Constitution  authorized  the  Union  and  State  legislatures  to  put  ‘reasonable restrictions’  on  free  speech  under Article 19(2) on 8 grounds

• Sovereignty & integrity of nation
• Security of state
• Friendly relations with foreign states
• Public order
• Decency and Morality
• Contempt of court
• Defamation
• Incitement to an Offence

Fodder : Cases in news where Freedom of Expression was suppressed

Ranking	India ranks 138 among 190 nations on the World Press Freedom Index published by Reporters without Borders (behind even Afghanistan (120)
Murder of Rationalists	Rationalists like Dabholkar , Pansare & Gauri Lankesh  were killed by Right wing for taking rationalist view
Movies	Ban on movies under threat to Public order. Recent examples include Padmavati

Article 19(1)(b) Freedom of assembly

• Citizen has right to assemble peacefully & without arms
• Freedom can be exercised in public & not private land
• Doesn’t protect violent, disorderly, riotous assemblies which cause breach of Public peace

• Restriction – on 2 grounds
  • Sovereignty & integrity of nation
  • Public order including maintenance of traffic in area

Article 19(1)(c) Freedom of association

• All citizens have right to form Associations or Unions or Cooperatives (Co-Operatives were added by 97th  Amendment , 2011)
• Restrictions can be imposed on grounds of
  • Sovereignty & integrity of India
  • Public order
  • Morality
• SC Rulings – Trade Unions have no right to effective bargaining or right to strike or right to declare lock out & Right to Strike can be controlled by appropriate Industrial Law

Article 19(1)(d) Freedom of movement

• All citizens are  entitled to move freely throughout the territory of country (underline idea that India is one unit)
• Restrictions can be imposed on two reasons  –
  • Interest of general public
  • Protection of interests of any Scheduled Tribe
• SC ruling – Freedom of movement of prostitutes can be restricted on the ground of public health & in interest of public morals
• Freedom of Movement has two dimensions

Internal	Right to move inside country (dealt by Article 19)
External	Right to move out of country & right to come back to country (dealt by Article 21)

Article 19(1)(e) Freedom of residence

• All citizens have right to reside in any part of territory of India
• Has two parts –
  • To stay temporarily,
  • To set up home or domicile at any place permanently
• Restrictions : Reasonable restrictions can be imposed
  • In Interest of general public
  • Protection of interest of any scheduled tribes
• SC ruling – Certain areas can be banned for certain kinds of people like Prostitutes & habitual Offenders
• Right to Reside & Right to movement are overlapping to some extend & are complementary to each other

Article 19(1)(f)

• Right to acquire, hold & dispose off property
• Was there in original constitution but removed after 44th Amendment

Article 19(1)(g) Freedom of profession

• All  citizens has  right to practise any profession or carry any occupation, trade or business
• State can impose restrictions in
  • Prescribe professional or technical qualification for practicing some profession
  • Carry by itself any trade as complete monopoly

• According to SC Judgements , Right doesn’t include professions that are immoral(prostitution) or dangerous(drugs & explosive) & can prohibit or regulate these

Side Topic – Doctrine of Res Extra Commercium  

• Res extra commercium (lat. “a thing outside commerce”) is a doctrine originating in Roman law and was understood to include things of the nature which cannot be traded between individuals. 
• SC has used this in following cases
  • Various decisions of Supreme Court regarding to fundamental right of a citizen to trade in liquor. In recent case of PIL deciding banning sale of Liquor on Highways. 
  • In RMD Chamarbaugwala v. Union of India , Apex Court held that gambling was an activity res extra commercium

Issues related to Article 19

Issue 1: Heckler’s Veto

• Heckler’s veto is phenomenon in which  by threatening public disorder or disturbance, socially powerful groups can shut down critical or inconvenient speech 
• In S. Rangarajan vs. P. Jagjivan Ram (1989) ,  Supreme Court ordered that it was the state’s constitutional duty to maintain law and order, and Government can’t say in order to preserve peace they are curbing the other person’s freedom of speech.

Issue 2 : Shreya Singhal Case & Section 66-A of IT Act

Section 66-A of IT Act

Any person who sends, by means of a computer resource or a communication device any information that is

• grossly offensive ,
• false information intending to cause annoyance etc.,
• intended at deceiving about the origin of the message

shall be punishable with imprisonment for a term which may extend to three years and with fine.

Court’s Judgement (Shreya Singhal vs Union of India) 

Court has propounded a new test to check the limit of Freedom of Speech & Expression

• According  to court there are three concepts fundemental in understanding this freedom ie Discussion, Advocacy & Incitement

Discussion Advocacy	Mere discussion or even advocacy of a particular cause, howsoever unpopular, is at the heart of Article 19(1)(a).
Incitement	Only when such discussion or advocacy reaches the level of incitement that Article 19(2) ie curtailing speech & expression kicks in

Words used such as annoying, inconvenient, grossly offensive, etc  shows that no distinction is made between mere discussion or advocacy of a particular point of view with  incitement 

Hence,  Section 66A can’t be saved under Article 19(2) and is  unconstitutional.

Issue 3: Criminal Defamation

Subramaniam Swamy vs Government of India (GoI) ( June 2016) Judgement

Supreme Court upheld the Constitutional validity of Criminal Defamation (Section 499 and 500 of IPC) . 

• SC declared that Right to “reputation” was protected under Article 21 & Right to free speech under Article 19(1)(a) had to be “balanced” against the right to “reputation” under Article 21. 

Note – Sections 499 and 500 of IPC prescribes two years’ imprisonment for a person found guilty of defamation

Note : Article 19(2) contains 8 grounds in the interests of which a law may reasonably restrict the right to free speech. Defamation is one of the 8 grounds, but the provision is silent as to which type of defamation, civil or criminal

Arguments : Section 499 & 500 of IPC should be scrapped

Philosophical Argument	Reputation is not absolute. It is a social construct based on shared perceptions which can change with time
Chilling impact on freedom of speech	State & Corporations use it as a means to coerce the media to adopt self-censorship.     Law Commission had also spoken of its “chilling effect”
Has outlived its use	Defamation originates from the concept of scandalum magnatum – the slander of great men – which protected the reputations of aristocrats.  It was brought to India by Colonists .
No Reason it to be Criminal Offence	One has to distinguish between private harm and social harm . Defamation don’t cause any social harm . Hence, keeping it in Statute books as Criminal offense doesn’t make sense. It should be made civil offence .
International Examples	United Nations Special Rapporteur on Freedom of Expression  has all called upon States to abolish criminal defamation In 2009, the UK (from whom India borrowed this) abolished criminal defamation altogether.

Argument : It shouldn’t be removed

• Article 19 (2) uses the word ‘defamation’ in the context of reasonable restriction. 
• Right to Reputation under Article 21
• Proper Safeguards introduced :  If it falls under any of the 10 exemptions under law, defamation case cant be filed . 
• It takes lot of time , more than decade on average , to settle Civil Disputes. 
• In India, citizens are unlikely to have enough liquidity to pay damages for civil defamation and hence criminal defamation is necessary.

Article 20

• Protection in respect to Conviction for Offences
• Grants protection against arbitrary & excessive punishment to an accused person whether citizen or foreigner or legal person
• This Article can not be suspended even during National Emergency.

It has three important provisions

No Ex-post facto Law	– Person shall be tried according to law which was there at time of commission of act – No penalties retrospectively   Hence, it limit the rights of the sovereign legislature in a limited manner .
No Double Jeopardy	– No person can be punished for same crime more than once – Not available to department & administrative proceedings because they arent judicial in nature     2017: Fodder Scam (Lalu Prasad Case) – SC held that a general conspiracy which gives birth to a cascade of distinct offences (smaller conspiracies) committed in various places spread over several years and involving different accused persons cannot be boxed into one trial. It over-ruled Jharkhand HCs Judgement in which it was held that since they have been convicted in one of the cases linked to the fodder scam, they need not stand trial for the others and it will lead to Double Jeopardy .
No self incrimination	– No person can be compelled to witness against himself – For Criminal & not Civil proceedings   Note 1. Right to Silence : Burden to prove the guilt is on state and Accused is presumed to be innocent until proven guilty beyond any reasonable doubt  are implicit in Protection against Self Incrimination 2. Selvi vs State of Karnataka (2010) – Forcible administration of scientific techniques/tests like narco analysis , Brain Electrical Activation Profile (BEAP) test etc during course of investigation would be unjustified intrusion into mental privacy and would be violative of self incrimination.

Related Topic : Anti-Torture Law

Supreme Court has  told Government to make Anti-Torture Law many times in the recent past. 

Why we should have Anti Torture Law

• India signed UN Convention against Torture (CAT) in 1997 (but is yet to ratify it)
• Due to absence of such law, large number of requests for extradition are turned down. Eg : extradition request relating to Purulia arms drop case suspect Kim Davy failed 
• Indian Police Agencies frequently resort to Torture to extract confession.
• 273rd Report of the Law Commission has recommended to pass a law to prevent custodial torture . 
• India also faced tough peer review at UNHRC due to Custodial Tortures 
• For protection of  Article 20 &  21 

Prevention of Torture Bill was passed by the Lok Sabha in 2010 , but it lapsed . It was a progressive legislation which included sleep deprivation, sound bombardment etc apart from  murder and broken bones (grievous hurt) under torture. 

Article 21

Article 21 – Protection of Life & Personal Liberty

• No person shall be deprived of his life or personal liberty except according to procedure established by law
• Available for both citizens & non-citizens
• This FR is available against state only . If private individual or company or autonomous body leads to encroachment of this right , remedy is available either under Article 226 or general law

Can be seen in two phases

AK Gopalan Case

– 1950 – Supreme Court took narrow interpretation – Ruled that Article 21 is available against arbitrary Executive Action & not from Legislative Action . State can deprive Right to Life based on law – Because of expression ‘procedure established by law’ which is different from  ‘due process of law’

Maneka Gandhi Case

(Case was basically against impounding of passport of Maneka Gandhi without giving him due hearing) – 1978 – Supreme Court overruled its previous judgement & gave wider interpretation. – Article 19 & 21 are not water tight . Law coming under Article 21 must satisfy Article 19 too – Hence introduced ‘due process of law’ ie life & personal liberty can be deprived by law provided that law is reasonable, fair & just – Protect not only from executive but also from legislative action

After Maneka Case , Supreme Court increased the ambit of Article 21 to include following

Right to live with human dignity	Right to livelihood
Right to decent environment	Right to health
Right to shelter	Right to free legal aid
Right to free education upto age 14	Right to speedy trial
Right against public hanging	Right against custodial death
Right against hand cuffing	Right against solitary confinement

Increased it to Right to Reputation in Subramanium Swami vs Government of India Case (June 2016)

Side Topic : US Supreme Court Judgements influenced decisions under Article 21

• Munn vs Illinois (1876) – Justice Field explained that meaning of term LIFE is very wide and is more than mere animal existence. Similarly , term LIBERTY is something more than mere freedom from physical restraint or bounds of prison

Issues related to Article 21

Issue 1  : Right to Privacy Issue

Main Case : Justice KS Puttaswamy vs Union of India

• July 2017 : Justice K. S. Puttaswamy  (retd.) vs Union of India, a 9 judge Constitution Bench of the Supreme Court ruled that right to privacy is an intrinsic part of life and liberty under Article 21.
• Case was just to decide Right to Privacy

Judicial History of Right to Privacy

• MP Sharma Case (1954) : 8 Judge bench held that  Right to Privacy is not a FR under Indian Constitution

• Kharak Singh vs State of UP (1962) :  Kharak Singh was arrested in a case of dacoity, but was released as there was no evidence against him. Uttar Pradesh Police brought him under “surveillance” which he challenged . SC held that Right to Privacy is not FR.

But after that many judgements came which ordered State to be sensitive of Privacy of Citizens

• Malak Singh vs State of Punjab (1981) : Police shouldn’t violate privacy of a citizen while exercising surveillance over him

• People’s Union for Civil Liberties (PUCL)  vs Union of India (1997) : Wiretapping without adopting reasonable procedure established by law is a violation of an individual’s privacy .  

Right to Privacy declared Fundamental Right under Article 21

• Justice K. S. Puttaswamy (retd.) vs Union of India, a nine judge Constitution Bench of the Supreme Court ruled that right to privacy is an intrinsic part of life and liberty under Article 21.

But with development of S&T and the rate at which privacy destroying technology has developed , Right to Privacy Act specifically dealing with all aspects of privacy is need of the hour

 International  Conventions

• Right  of Privacy  is  integral  part  of
  • Universal Declaration  on  Human  Rights (UDHR)
  • International Covenant on  Civil  and  Political  Rights (ICCPR),  1966
  • UN Charter  (1945)
• India is member of all .

Right to Privacy in other countries

• In US , SC declared that Right to Privacy is FR  in 19th century in response to yellow journalism (yellow journalism : newspapers that present little or no legitimate well-researched news & instead use eye-catching headlines for increased sales)

• UK too recognises Right to Privacy as Right under “castle doctrine” of English common law, meaning an Englishman’s home was his castle. 

(Conclusion) Why Right to Privacy should be Fundamental Right

• As opined by SC in Justice KS Puttaswamy vs Union of India, Right to Privacy is intrinsic part of Article 21

• Castle Doctrine & other countries : Castle Doctrine says that Person’s home is his Castle and is part of laws of many countries including UK .  In US , SC has already declared it to be FR

• Conventions : Various Conventions like Universal Declaration  on  Human  Rights (UDHR)  & International Covenant on  Civil  and  Political  Rights (ICCPR),  1966 of which India is part also state about this .

• Various Commissions like Justice AP Shah Commission on Privacy  Law and Justice BN Srikrishna Commission has recommended need to protect the privacy of persons .

• To Prevent digital colonisation by digital & e-commerce businesses which treat Data as new currency   

Issue 2  : Euthanasia

• Word ‘Euthanasia’-   originated in Greece,  meaning mercy killing
• Two types
  • life ending medication is administered to the patient by a third party, usually a doctor (Active Euthanasia) or
  • Life support is withdrawn (Passive Euthanasia)

Arguments against Euthanasia

• Constitution of India – according to SC judgement in Gian Kaur Case,1996 , Right to Life doesn’t include Right to die
• Neglect of Healthcare by State – example : Holland. 
• Malafide intention –  misusing Euthanasia by family members or relatives for inheriting the property of the patient . This was held in Aruna Shanbaug Case too.

Arguments in favour of Euthanasia

• Supreme Court Judgement : Common Cause Case (2018) held that Right to Life include Right to refuse treatment and Die with Dignity and allowed Passive Euthanasia and living wills regarding this.
• Hospitals are already overcrowded. Hospitals should devote resources on those patients which can be cured.
• Care-givers Burden: The caregiver’s burden is huge .  Many families have gone bankrupt to ensure medical care for a terminally ill person  .
• Encouraging Organ Transplantation
• Law Commission  in various reports has spoken in favour of Passive Euthanasia

Aruna Shanbaug Judgement

• Didn’t allow Active Euthanasia but allowed ‘Passive Euthanasia’ in rarest of the rare cases  subject to safeguards  
  • Have to take approval of High Court Bench, based on consultation with a panel of medical experts.
• Only  hospital could make such a request (friends and relatives cant). 

2018 : Passive Euthanasia and Living Will Judgement (Common Cause vs Union of India)

• PIL filed by NGO Common Cause in 2005 in Supreme Court.
• It held that
  • Right to life  includes right to refuse treatment and die with dignity ie it allowed Passive Euthanasia
  • It allowed LIVING WILL   regarding Passive Euthanasian made in presence of Judicial Magistrate .

Issue 3 : Right to Marry

Supreme Court (SC) of India has recognised Right to Marry within scope of Right to Life and Personal Liberty .

Various Judgements regarding this

1. 2018 – PIL in Shakti Vahini Case : Supreme Court has took firm stand against Khap Panchayat in their interference in marriages and honour killings. 
2. 2018 – Hadiya Judgement : Right to Marry is included in Right to life and liberty
3. Lata vs State of UP (2006) : Right to Marry is a fundamental part of Right to Life under Article 21 . 
4. Bhagwan Das vs State (NCT) of Delhi (2011) : Honour Killings fall within the ambit of ‘rarest of rare cases‘ and perpetrators deserve death punishment.

US Supreme Court has given strong judgement with regard to marrying person of his / her own choice

• Loving vs Virginia (1967) : US SC invalidated laws prohibiting interracial marriage
• Bostic vs Schaefer (2015) : Validated same sex marriage

Issue 4 : RIGHT TO LIFE & GREEN LAWS

Several instances where court intervened

1. Basis of the “polluter pays” principle pronounced in Bichhri Judgement in Rajasthan, where groundwater and wells were poisoned by industrial effluents.
2. Vellore Citizen Welfare Forum vs Union of India (1996) – SC recognised Right to live in Healthy Environment is FR and is part of Article 21
3. Doon Valley Case (1989) – SC had to deal with dispute involving mining in hilly areas . 
4. MC Mehta Case : CNG in Delhi and order to implement Bharat Stage norms

Issue 5 : Lynchings

In news due to Cow Vigilantism and lynchings done on the name of protecting cow .

Reasons of lynchings

1. Political Reasons
   • Instrumentalisation of prejudice for political ends.
2. Religious reasons
   • Cow considered mother in hinduism. People easily mobilised using cow symbol
3. Rumours
   • Whatsapp used to spread rumours

Aspects of the problem

• People are being executed either on the name of religion or caste. Major targets are
  • Minority especially Muslims – On allegations of eating and trading in beef. 
  • Low Caste : They depend on work in the meat and leather industries.
• Fundamental Rights violated :
  • Right to Life (Article 21) of Minority communities
  • Article 19(1)(g) : Right to Freedom of Profession
• Government’s negligence 
  • Government is not acting with firm hand and protecting perpetrators of Crime
• Legislation
  • Lynching does not find mention in the Indian Penal Code. 
  • Government maintains no data on Lynchings & NCRB don’t record lynching as separate offence

Consequences of increased lynchings

1. Mob Justice mentality on rise
2. Loss of faith of minority in state machinery . They can pick up arms if further alienated
3. Impact on Farmers : Farmers are feeling the heat because animal husbandry is side business of Farmers  . But due to fear of Cow Vigilantes during transportation, market and price of Cattle has come down exponentially.
4. Communalism on rise   
5. India coming under huge pressure from Human Right Groups and faced lot of criticism at UNHRC peer review
6. Loss of trade – Leather and Meat industry both impacted which was Foreign Exchange earner .

Uttar Pradesh Law Commission (UPLC) earlier last month took the initiative, unprompted by the Uttar Pradesh government, to recommend a draft anti-lynching law. It commends a law which closely follows in almost every major detail the first law against lynching passed in this country, a remarkable ordinance introduced by the Manipur government late last year, indeed the most significant statute against religious hate crimes in the country.

Ashok Gehlot-led government in Rajasthan has also tabled Rajasthan Protection From Lynching Bill, 2019 (second after Manipur)

• Setting up of special courts
• appointment of a dedicated nodal officer
• Enhanced punishments : Life term with fine upto 5 lakh
• Provide legal aid, compensation and rehabilitation .

Lacunae : unlike the law on mob lynching in Manipur, it does not prescribe any punishment for dereliction of duty.

Solution

• Government should pass MASUKA (Manav Suraksha Kanoon) proposed by NGO (National Campaign against Mob Lynching)  to act tough against vigilante groups
• Government should adopt Zero Tolerance towards such acts . Feeling of Impunity gives these Vigilante Groups encouragement .
• Judiciary must be vigilant enough to protect Right of Life
• Urgent need for police reforms by improving organizational capabilities or insulating the police from political pressure

Article 21 A

Right to education

State shall provide free & compulsory education from age 6 to 14 via 86th Amendment,2002

• Earlier under Article 45 but  wasn’t justiciable 
• 1993 – SC ruled Right to education is included in Article 21 itself
• Right of Children to Free & compulsory Education (RTE),2009 was enacted by Parliament in its pursuance

Article 22

• Protection against Arrest & Detention
• Grants protection to persons who are arrested or detained

Contain two parts

Part 1

Deals with Punitive detention & confers following Rights

1. Rights to be informed of grounds of arrest as soon as arrest is made
2. Right to consult & to be defended by legal practitioner of his choice
3. Right to be produced before magistrate within 24 hrs
4. Right to be released after 24 hr unless magistrate authorises so

Available to alien  also (but not enemy alien)

Part 2

Deals with Preventive detention & confers following rights

1. Detention can’t exceed 3 months unless advisory board consisting of HC judge advices so
2. Grounds of detention should be communicated to detenu
3. Detenu should be afforded opportunity to make representation against detention order

44th Amendment – reduced period from 3 to 2 months but not yet brought into force

India is the only democracy in world which has preventive detention as integral part of constitution

An accused person can be compelled to give his thumb impression but cannot be compelled to be a witness against himself

2018 Judgement : Supreme Court held that Preventive detention of a person by a State merely because the normal legal process is ineffective and time-consuming is illegal.

Analysis of Preventive Detention in India

A person can be put in jail / custody for two reasons. One is that he has committed a crime. Another is that he has potential to commit a crime in future. The custody arising out of the later is Preventive Detention  .

Historical background of Preventive Detention in India

India has a long history of “Preventive Detention”.  Acts using Preventive Detention are

• Bengal Regulation III , 1818
• Preventive Detention Act, 1950
• TADA , 1985 (to deal with terrorism in Punjab)
• PSA (Public Safety Act) => in force now

States and Goonda Acts

Goonda Acts	– Using Provisions of Preventive Detention , States have enacted Goonda Laws – Goonda  Act  are enacted for Preventive Detention of   habitual  offenders
PSA	2019 : MP Government charged persons under Public Safety Act for Bovine trade

Arguments against the provision

• Repugnant to modern democratic constitutions. They are not found in any of the democratic countries. 
• Detaining person under Preventive Detention  affects  the  life  and  liberty  of  the  citizen  under  Articles  14,  19,  21  and 22  .
• It obviates the  International Covenant on Civil and Political Rights (ICCPR) which permits that rights can only be limited “in time of public emergency which threatens the life of the nation” but it allows detention in peacetime as well.
• The long period of detaining (3 months) poses a threat of torture.
• In the absence of proper safeguards, preventive detention has been misused, particularly against the Dalits & minorities.
• States are misusing these provision to make Goonda Acts . Political scores are settled using these provisions

Arguments for the provision

• Circumstances at the time demanded such provisions. Bhimrao Ambedkar who was liberal in orientation too spoke in favour of these provisions as challenges of centrifugal forces faced by newly formed nation were great at that time.
• Number of persons detained in these acts is not a very large and due attention is made before preventive detention.
• Having such kind of acts has a restraining influence on the anti-social and subversive elements.

Conclusion : The PD is a “necessary evil”. But problem is its misuse for political and other motives.

Note : It was Vallabhbhai Patel, a mascot for the advocates of a “hard state”, who introduced and got the preventive detention bill passed in 1950. But the bill was not easy on his conscience. He conceded that he spent two sleepless nights before introducing the bill in Parliament and moved it only because of the political and social turmoil that followed Partition and Independence.Over the last 70 years, provisions of preventive detention which were incorporated to be used as  “necessary evil”, has come to be normalized as a “necessary condition” and transitioned from being exceptional measures for exceptional situations, to extraordinary measures for ordinary situations.

Current cases of Preventive Detention

MP Cow cases (2019)	MP government used PSA to detain those who have alleged to have committed offences related to cattle laws (maximum punishment of which can be just 1 year)
Kishorechand Wangkhem	Dec 2018 => Manipur Journalist arrested under Preventive Detention (under PSA) for 1 year after he called Manipur CM to be puppet of Centre.
Chandra Shekhar Azad / Ravan	2018 : Arrested under PSA