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.
NominatedMembers
– 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
If he voluntarily gives up the membership of the Political Party on whose ticket he is elected to the house
If he votes /abstains from voting in the House contrary to any direction given by his Political Party
If any independently elected member joins any Political Party
If any nominated member joins any Political Party after the expiry of 6 months
The question of disqualification under Schedule 10 is decided by
Chairman for Rajya Sabha
Speaker for Lok Sabha
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 :
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.
If a sitting Member of one House is also elected to the other House , his seat in the first House becomes vacant.
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
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
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
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 ‘
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
Elected members of both Houses of Parliament
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
Citizen of India
Above 35 years in age
Qualified to be Member of Lok Sabha
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 –
Give Consent ,
Withhold Consent or
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 thisveto
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
inordinate delay of eight years
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
Supreme Court has power to issue writs for enforcement of Fundamental Rights
Parliament can empower any other court to issue writs without doing prejudice to powers of Supreme Court & other court don’t include High Court
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?
Article 370 & 35 A are complementary and Article 370 will be nothing if Article 35 A is not there
Large scale apprehension in the valley that it will bring large scale demographic changes in Muslim majority valley.
Kashmiris will be further alienated . At this time, when situation in Kashmir is already very tense, such adventure is uncalled for.
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)
Institution is established by members of community which are in minority in that state
Institution is administered by members of community which are in minority in that state
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
UN Declaration on Human Rights (UDHR)
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.
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-papismie 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.
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
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 annoyanceetc.,
intended at deceivingabout 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
DiscussionAdvocacy
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 casessubject 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
2018 – PIL in Shakti Vahini Case : Supreme Court has took firm stand against Khap Panchayat in their interference in marriages and honour killings.
2018 – Hadiya Judgement : Right to Marry is included in Right to life and liberty
Lata vs State of UP (2006) : Right to Marry is a fundamental part of Right to Life under Article 21 .
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
Basis of the “polluter pays” principle pronounced in Bichhri Judgement in Rajasthan, where groundwater and wells were poisoned by industrial effluents.
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
Doon Valley Case (1989) – SC had to deal with dispute involving mining in hilly areas .
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
Political Reasons
Instrumentalisation of prejudice for political ends.
Religious reasons
Cow considered mother in hinduism. People easily mobilised using cow symbol
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
Mob Justice mentality on rise
Loss of faith of minority in state machinery . They can pick up arms if further alienated
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.
Communalism on rise
India coming under huge pressure from Human Right Groups and faced lot of criticism at UNHRC peer review
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
Rights to be informed of grounds of arrest as soon as arrest is made
Right to consult & to be defended by legal practitioner of his choice
Right to be produced before magistrate within 24 hrs
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
Detention can’t exceed 3 months unless advisory board consisting of HC judge advices so
Grounds of detention should be communicated to detenu
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.