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Constituion Off India
Constituion Off India
Constitution of India
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1. The union list contains 97 entries out of which 96 have been specifically named and the 97th item has been left blank and is unknown as residuary item under which any new item which has not found a place in any of the list can be included. This being in the union list it effectively means that on any new subject, only parliament can make a law. 2. Under state list, only state can pass law but Article 246 permits the Parliament to pass law on state list matters under five circumstances. These circumstances are a matter of: a) National Interest; b) Emergency; c) Dispute between two or more states; d) To give effect to an international agreement; and e) Breakdown of constitutional machinery in a state. Thus parliament has more powers under these five circumstances even in the state list. 3. Under concurrent list, if any law is pass on a particular matter by Union as well as State and if there is an inconsistency between two laws then the union law will prevail over the state law. 4. India, we have a single citizenship system unlike in the case of USA where there is a concept of dual citizenship. Thus, it can be held that the Indian Constitution establishes a system of government at the most QuasiFederal (not strictly federal) or it a federation with a strong centralized tendency.
List I or the Union List This list includes subjects over which Parliament has the exclusive power to legislate. The list contains 97 items, some of which are defence, foreign affairs, citizenship, currency, judiciary, central taxes, etc. List II or the State List This list contains 66 items over which the state legislature have the exclusive power to legislate. Some of the important items are public health and sanitation, pilgrimage, roads, agriculture, state taxes, etc.
ii)
iii) List III or the Concurrent List This list contains 47 entries over which both Parliament and the state legislatures can legislate. Some of the important items are marriage, economic and social planning, trade unions, etc. It may be noted that Parliament has exclusive powers to make any law with respect to any mailer which is not covered in any of three lists. This is known as residual) power of legislature.
Pith means a substance in the stem of a plant and substance means an important and essential part of something. The term is used in law to ascertain the essential part of the law which the legislatures mean the most important in framing the law. While making any law in any matter contained in List I or II or III, the legislatures may slightly encroach other List. If challenged, the Court will apply the doctrine of pith and substance of the law and determine the validity of the law.
COLORABLE LEGISLATION
The theory behind this concept is You cannot do indirectly what you cannot do directly. The object of distribution of legislative powers to different legislatures is that they ought to act within their respective boundaries marked by the specific entries. There are some cases where the legislature passes an Act which outwardly purports to be dealing with a subject within its legislative competence but in substance it covers a subject not within its powers. Such type of law is called colorable legislation and it will be struck down by the Court.
PLENARY POWERS
When a legislative power is given with respect to any subject, the legislatures have the power to make laws on such subject and also any matter incidental to such subject. This is called giving plenary of powers. For example, when a power is given on tax matter, the legislatures have the power to make law for imposition of tax, refund of tax, and also not to impose and collect tax.
DELEGATED LEGISLATION
Delegated legislation means law making by authorities other than legislatures (i.e., Executive nd Judiciary) on the basis of power given by the legislatures. It is a process which proceeds from any authority other than the sovereign power and is, therefore, dependent for its continued existence and validity on some superior or supreme authority. When any law is enacted, it becomes necessary to delegate powers for carrying out the policy laid down in the law. Generally, ancillary and subsidiary powers are delegated and the legislative functions are retained in the hands of the legislatures. The delegatee is authorized to make rules only on subsidiary and ancillary matters within the authority given. A rigid legislative procedure is not feasible for execution of the legislative schemes; In each law there are clauses which empowers others to make rules for removal of difficulties; in executing the policy.
WRITS
Writs are extra ordinary remedies in cases where there is either no remedy available under the ordinary law or the remedy available is inadequate. Articles 32 and 226 of our Constitution empower anyone, whose rights are violated, to seek writs. Under Article 32, the Supreme Court can be moved for enforcement of fundamental rights only. However, under Article 226, High Court can be moved for enforcement of any right including fundamental rights. Depending upon circumstances, the various types of writs can be issued, which are discussed below:
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writ may be the prisoner or any person on his behalf to safeguard s liberty. It seeks immediate relief from unlawful detention, whether in prison or private custody. The writ of habeas corpus is the nature of an order calling upon the person who has detained another to produce the latter before the Court in order to let the Court know, the ground of his detention and to set him free if there is no legal justification. This is a very powerful safeguard to the subject against arbitrary acts of private individuals and also executives.
WRIT OF MANDAMUS
Mandamus literally means a command. This writ of command is issued by the Supreme Court or High Court when any government, court, corporation or any public authority has to do a public duty but fails to do so. To invoke the performance of such duty, this writ of mandamus is issued. It should be noted that it should not be discretionary duty of the authority which is challenged. It should be a compulsory one, the applicant too should have a legal right to enforce such performance. It may further be noted that this writ cannot be issued against President or the Governor.
WRIT OF PROHIBITION
Writ of Prohibition is issued by Supreme Court or High Court to subordinate court preventing latter from usurping the jurisdiction which is legally not vested in it. The writ lies in both for excess of jurisdiction or absence of jurisdiction. It is generally issued before the trial of the case or during the pendency of the proceeding but before the order is made. It may be noted that this writ is available against judicial and quasi-judicial body.
WRIT OF CERTIORARI
If any lower court or a tribunal gives its decision but based on wrong jurisdiction, the affected party can move this writ for a direction against such lower court or tribunal to ignore such decisions based on wrong jurisdiction. The writ of certiorari is issued to sub-ordinate judicial or quasi-judicial body by Supreme Court or High Court when they act: a) Without or in excess of jurisdiction; b) In violation of the prescribed procedure; c) In contravention of principles of natural justice; d) Resulting in an error of law apparent on the face of record. The writs of prohibition and certiorari are of the same nature, the only difference being that the writ of prohibition is issued at an earlier stage, before the order is made and the writ of certiorari is available on a later stage i.e., after the order has been passed.
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FUNDAMENTAL DUTIES
Rights and duties go hand in hand. Thus, Article 51A of Constitution of India imposes the nnber of Fundamental duties on every citizen of India, However, they are not enforceable in the court of law. Following are some of the important fundamental duties: 1. To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem. 2. To uphold and protect the sovereignty, unity and integrity of India. 3. To defend the country and render National service when called upon to do so. 4. To promote harmony and spirit of common brotherhood amongst all the people of India transacting religious, linguistic and regional or sectional diversities. 5. To renounce practices derogatory to the dignity of women. 6. To value and preserve the rich heritage of our composite culture.
CONCEPT OF STATE
The significance of concept of State in the context of fundamental rights is that generally the fundamental rights are available against the State. The term State is defined in Article 12 of the Constitution of India. As per this, unless the context otherwise provides, the term state includes 1. The Government and Parliament of India; 2. The Government and legislature of each of the states; and 3. All local or other authorities: a. Within the territory of India; or b. Under the control of the Government of India The expression local authority includes the following: 1. Municipalities; 2. District Boards; 3. Panchayats, etc. The expression other authority includes the following: 1. Electricity authorities; 2. Universities; 3. Income tax Department, etc. The expression under the control of the Government of India covers into the definition of State, not only every authority within the territory of India, but also those functioning outside India provided such authorities are under the control of the Government of India. Constitution of India Page 6 of 15
The question, whether a corporation acting as instrumentality or agency of Government is State or not, was decided by the Supreme Court in the case of R.D.Shetty v. International Airport Authority and later on followed in the case of Ajay Hasia v. Khalid Mujib. It was decided in the aforesaid cases that in general a corporation acting as an instrumentality or agency of the government is not a state within the meaning of Article 12 of the Constitution of India. However, following are some of the instances where a corporation acting as a instrumentality or agency of the Government. can be regarded as a State within the meaning of Article 12 of Constitution of India: 1. lf the entire share capital is held by the government 2. If the Government exercises deep and persuasive control over the corporation 3. Where the corporation enjoys monopoly status 4. If the functions of the corporation are of public importance and closely relates to Government functions. 5. If a department of Government is transferred to a corporation. Where court exercises a judicial functions, it cannot be regarded as State as the expression State covers only legislature and executive and not judiciary. However, where a court exercises non-judicial functions, it can be considered as State. [A. R. Antulay v. R. S. Nayak]
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2. The State can make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Schedule Castes and Schedule Tribes. Equality of Opportunity in Matters of Public Employment Article16 guarantees equality of opportunity to all citizens in the matter of appointment to any office under the State. The aforesaid rule is subject to the following exceptions: 1. The Parliament can make any law prescribing any requirement as to resident in a State in respect of any particular class or classes of employment in that state. 2. The State can make provisions for the reservation of post in favour of any backward classes of citizens. 3. Offices connected with religious institutions may be reserved for the persons of a particular religion Abolition of Untouchabillty Article 17 provides that untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. Abolition of Titles Articles 18 abolishes all the titles conferred on various Indian Citizens by British Government and the use of those titles is prohibited as it results in creating superior and inferior classes of citizens. However, Military titles, Academic titles or Titles recognizing merit or work of an extra-ordinary nature can be conferred and used.
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In Maneka Gandhi v. Union of India, it was decided that the freedom of speech and expression includes the freedom of press and thus imposition of pre-censorship on publication of views, ideas, analysis, etc violates freedom of speech and expression. In the case of Bijoe Emmanuel v. State of Kerala, it was held that the right to freedom of speech and expression also includes the right to remain silent. It was decided that a person cannot be compelled to sing a National Anthem if he does not want to do so because of some religious objections. Freedom of speech shall, however, not be used as a license to distort and misrepresent orders of court and present an incomplete and one-sided picture tending to scandalize court and subject it to ridicule. [Narmada Bachao Andolan v. Union of India] Permissible restrictions 1. Sovereignty and integrity of India 2. Security of the state 3. Friendly relations with foreign States 4. Public order 5. Decency and morality 6. Contempt of court 7. Defamation 8. Incitement to an offence. Right to assemble peacefully and without arms [Article 19(1)(b)]: It is the right to citizens to assemble peacefully and without arms. However reasonable restrictions may be imposed on this right in the interest of: 1. The sovereignty and integrity of India; 2. Public order. Right to form association and union [Article 19 (1)(c)]: Right to form associations and unions is guaranteed so that the people can form a group of people having the similar views. In Sitharamachary v. Sr. Dy. Inspector of Schools, it was held that this right necessarily implies a right not to be a member of an association. Thus, no one can be compelled to become a member of an association. This right is subject to reasonable restrictions which may be imposed in the interest of: 1. Sovereignty and integrity of India; 2. Public order; 3. Morality Right to move freely throughout the territory of India [Article 19(1)(d) ]: Right to move freely is confined only to the territory of India and it cannot be extended to travel abroad. This right is also subject to some reasonable restrictions which may be imposed: 1. In the interest of the general public; 2. For the protection of interest of any scheduled tribe. Right to reside and settle in any part of territory of India [Article 19 (1)(e)]: The right to freedom of residence is intended to remove internal barriers within the territory of India to enable every citizen to travel freely and settle down in any part of the State or Union territory. This freedom is also subject to reasonable restrictions which may be imposed 1. In the interest of general public; 2. For the protection of interest of any scheduled tribe. Right to practice any profession or carry on any trade, business or occupation [Article 19 (1)(g)]: Article 19 (1)(g) provides that all citizens shall have the right to practice any profession or to carry on any occupation, trade or business. This right is also subject to reasonable restrictions which may be imposed: 1. In the interest of the general public; Constitution of India Page 10 of 15
2. To prescribe professional or technical qualification necessary for carrying on any profession, trade or business; 3. To enable the State to carry on any trade or business to the exclusion of Private Citizens. This means that the creation of State monopoly shall not be considered to deprive a citizen of the freedom of trade and occupation. Banking Business will be done only by the State and not by any private person was challenged before the Supreme Court. However the Supreme Court rejected the petition and held that the law is valid as State has got the power to create a monopoly in its favour.[R. C. Cooper v. Union of India] Article 20 Article 20 guarantees to all persons, whether citizens or non-citizens, the three rights. They are as follows: 1. Protection against ex-post facto laws: Ex-post facto laws are laws which punish what had been lawful when done, If a particular act was not an offence according to the law of the land at the time when the person did that act, then he cannot be convicted under a law which, with retrospective effect, declares that act as an offence. Even the penalty for the commission of an offence cannot be increased with retrospective effect. Thus, the meaning of the above two provisions is that so far as criminal law creates a new offence or increases the penalty, it shall be applicable only to those offences which are committed after its coming into force and cannot cover those offences which have already been committed in the past. Exceptions i) ii) Protection under this Article is available only for offences and their punishments under criminal law and not for any civil liability, where retrospective laws can be passed. Article 20 prohibits the conviction under ex-post facto law only in respect of substantive law but not in respect of procedural law, as no one has vested right in procedure. [Shiv Bhadur Singh v. State of Vindhya Pradesh]
2. Protection against double jeopardy: No person can be prosecuted and punished for the same offence more than once, However if a person has been let off after prosecution, without being punished, he can be prosecuted again. 3. Protection against self-incrimination: A person accused of any offence cannot be compelled to be a witness against himself. In other words, an accused cannot be compelled to state anything which goes against him. Article 21 Article 21 of the constitution confers on every person the fundamental right to life and personal liberty. It says that No person shall be deprived of his life or personal liberty except according to the procedure established by law. Thus Article 21 seeks to prevent encroachment upon personal liberty by the executive except in accordance with law and in conformity with the provisions of the law. The scope, application and effect of Article 21 may be well understood through the following important judicial decisions. In Philips Alfred Malvin v. V. J. Gonsalvis, it was held that right to life includes those things which make life meaningful. E.g. the right of a couple to adopt a son. In one of the leading cases, life has been interpreted as a decent life in a democratic society. In A. K. Gopalan v. State of Madras, a very narrow meaning was given to the expression personal liberty confining it to the liberty of the persons i.e., of the body of a person. It was held only if the persons physical movement is totally restricted, then there was need for law and procedure, otherwise his personal liberty would be restricted in any way without violating Article 21.
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That the expression Personal liberty is not limited to bodily restraint or to confinement to person only is well illustrated by Kharak Singh v. State of U.P. In this case, the question raised was of the validity of the police regulation authorizing the police to conduct what are called domiciliary visits against bad characters and to have surveillance over them. The court held that such visits were an invasion on the part of the police, of the sanctity of a mans house and intrusion into his personal security and his right to sleep, and therefore violative of personal liberty of the individual, unless authorized by a valid law. In Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi, it was held that right to 7avel abroad is included within the expression personal liberty and therefore, no person can be deprived of his right to travel except according to the procedure established by law. Since a passport is essential for the enjoyment of this right, the denial of-a passport amounts to deprivation of personal liberty. The view of this case was reiterated in Maenka Gandhi v. Union of India by the Supreme Court. At present, personal liberty includes various other liberties like right to bail, public interest, litigation, right to free legal aid, right to speedy trial, etc. The expression procedure established by law means procedure laid down by statute or prescribed by the law of the State. Article 22 Article 22 lays down certain specific safeguards against arbitrary arrest and detention. These safeguards are i) A person who is arrested cannot be detained in custody, unless he has been informed of the grounds for such arrest; ii) Such person shall have the right to consult and to be defended by lawyer of his choice. Such person must be produced before the nearest Magistrate within 24 hours of arrest, excluding the tiite of journey; and iii) Such a person shall not be detained in custody beyond 24 hours without the authority of the Magistrate. It may be noted that aforesaid safeguards are not available to i) Alien enemies; and ii) Persons arrested or detained under preventive detention law. The object of preventive detention is to detain a person with the intention of preventing him from committing an offence. It can be done without a charge being proven. The reasons can be varied; generally it is for defence purposes, public order and security and continuance of supply of essentials. In order to ensure that this provision is not used illegitimately, the following safeguards have been provided No person can be detained beyond a period of three months unless this period has been enhanced by a parliamentary law or an advisory board of jeople qualified to be high court judges has seen sufficient cause in detaining him beyond that period. He has been intimated the grounds of his detention. He was given a fair chance of presenting his defence.
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Traffic in human beings means to deal in men and women like goods such as to sell or let or otherwise dispose off them. It includes not only slavery but also traffic in women or the crippled for immoral or other purposes. Begar is a system where a person is compelled to render involuntary and free service. Even if there is payment of wages, a person cannot be compelled to work against his will. Article 24 Article 24 provides that no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Various laws like The Factories Act, 1948, The Employment of Children Act, 1938, The Child Labour (Prohibition and Regulation) Act, 1986 are some of the legislations which protect employment of child labour.
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In the initial stages, if any law was passed giving effect to FR but violating DP then DP was totally ignored. In State of Madras v. Champakam Dorairajan, it was held that the DP cannot override the FR. The DP have to conform and to run as subsidiary to the FR. Subsequently, the Supreme Court applied the principle of harmonious construction by which whenever any law involves with both FR and DP, an attempt was made to give effect to both, to the extent possible, and when it become impossible, DP was ignored. Subsequently, Article 31-C was inserted in the Constitution of India by an amendment, which provided that any law passed to give effect to the directive principles of prevention of concentration of economic wealth to the common determent (MRTP Act) cannot be challenged even it violates Article 14 or 19. Subsequently, Article 31-C was amended and its scope was widened in the sense that any law passed to give effect to any DP cannot be challenged even if it violates FR under Article 14 or 19. In Keshvanand Bharti v. Union of India, the court observed that the FR and DP are meant to supplement each other. It can well be said that the DP prescribes the goals to be attained and FR lays down the means to achieve them. Therefore the present position is that the violation of FR is legally enforceable but if it is due to any law giving effect to DP, it cannot be enforced as far as Article 14 or 19 are concerned.
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