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constitution of india

  1. 1. Chapter 1 – Constitution of India Page 1 INTRODUCTION A country is governed by a set of policies through a framework of laws, rules and regulations. Constitution of a democratic country is a fundamental legal document which lays down the basic structure of the government, and other public bodies, their powers, functions; rights and duties of its people and their interrelations. It also contains the principles to be followed by the state in the governance of the country. Constitution of India is the supreme law of the land and as such, all other laws are subordinate to it. It is supreme because it was made by the people. In a democracy, people are supreme and the law made by them is naturally superior to the laws made by any public authority, be it parliament or the other. India being the largest democracy in the world has the largest written constitution with 395 Articles in 22 parts with 12 schedules. All matters of public governance are regulated by the provisions of constitution. All public authorities – legislative, administrative and judicial – derive their power directly or indirectly from it and the Constitution derives its authority from the people. The Constitution of India was framed by the Constituent Assembly. This Assembly was an indirectly elected body. Idea for a Constituent Assembly for drafting a constitution for India was first provided by Bal Gangadhar Tilak in 1895. The Draft of Indian Constitution was presented in October 1947. President of the Drafting Committee was Dr. Bhim Rao Ambedkar who was the first law minister of independent India. The total time consumed to prepare the draft was 2 years, 11 months and 18 days. The Indian Constitution was enacted on November 26, 1949 and was brought into force on January 26, 1950. OBJECTIVES: The basic objective of this lesson is to enable you to understand the basic framework of constitution & important provisions given therein. By the end of this chapter, you should be able to---- → Understand broad framework of the Constitution (Preamble and the structure) → Realise the importance of Fundamental Rights (Articles 14 to Article 32) → Appreciate Directive Principles of State policy (Articles 36 to 51) → Know Fundamental Duties (Article 51A) → Trace ordinance making powers of the President (Article 123) & the Governor (Article 213). → Distinguish legislative powers of the Union from those of the States (Article 245 to Article 255). → Have an idea of Freedom of Trade, Commerce & Intercourse (Article 301 to Article 305), Constitutional provisions relating to State Monopoly, the Judiciary & the Writ Jurisdiction & also Delegated Legislation. I. BROAD FRAMEWORK OF THE CONSTITUTION: As the Constitution is the supreme law of India, it lays down the framework defining fundamental political principles; establishes the structure, powers, and duties of Government; and sets out fundamental rights, directive principles and the duties of citizens.. BASIC STRUCTURE OF CONSTITUTION: - The basic structure is well reflected in the preamble of Indian constitution. A preamble is a foreword which states the objectives sought to be achieved. It is also a base for interpreting the provisions of Constitution. The Preamble contains the ideals, objectives and basic philosophy of the Constitution. The salient features of the Constitution have evolved directly and indirectly from these objectives which flow from the Preamble. Hence it is important to know its contents.
  2. 2. Chapter 1 – Constitution of India Page 2 PREAMBLE We, The People Of India, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do Hereby Adopt, Enact And Give To Ourselves This Constitution. The first line of the preamble starts with ‘We the people of India” and ends with “Hereby adopt, enact and give to ourselves this constitution.” From the above, it is obvious that it was people of India who made constitution for themselves. They utilised the services of forums like Constituent Assembly and Drafting Committee in preparing the master document for them. The Preamble explains the objectives of the Constitution in two ways: one, about the structure of the governance and the other, about the ideals to be achieved in independent India. The objectives, which are laid down in the Preamble, are: MEANING OF THE EXPRESSIONS SOVEREIGN SOCIALIST, SECULAR DEMOCRATIC REPUBLIC: SOVEREIGNTY means Independent authority of a state and it is not controlled by any other state or external power. It is free from any type of external control. Legal sovereignty is vested in the people of India and political sovereignty is distributed between the Union & the States. The word “SOCIALIST AND SECULAR” was added by the 42 nd Amendment to the Constitution. The word socialist aims to secure to the people- social, economic and political justice The word Socialist highlights the ideals of a welfare state. It means to reduce economic disparities among the people and to ensure a decent standard of life to the working people. Secular India means that the State protects all religions equally and it doesn’t oppose or support any religion. Democratic Republic means India is ruled by the elected representatives of the people and there is no external authority to control it. In short, it means Indian government is run by the people and for the people. a. Description of Indian State as Sovereign, Socialist, Secular, Democratic Republic. b. Provision to all the citizens of India i.e., (a) Justice social, economic and political (b) Liberty of thought, expression, belief, faith and worship (c) Equality of status and opportunity (d) Fraternity assuring dignity of the individual and unity and integrity of the nation
  3. 3. Chapter 1 – Constitution of India Page 3 To sum up, India is envisaged as an independent democratic state with the ideals of a welfare state and with the policy of secularism. Other features of Indian Constitution also enable us to understand the structure of Indian polity. FEATURES OF INDIAN CONSTITUTION: (i) India is a federal State with unitary features Federal state has dual authority system of Central Government and the State Governments. States are autonomous and they manage their own affairs with limited intervention of the Centre. In a unitary state, union Govt. has central authority with delegated powers to the States. (ii) India is a parliamentary type of democracy in which parliament is the supreme legislative body of peoples representatives. The president is the fountain head of Justice and acts only on the advice of Council of Ministers including the Prime Minster. (iii) Independent Judiciary : Indian constitution crated three organs; Executive, legislature and judiciary. These three function independently but with coordination. One of the basic features of a federal structure is independent judicial system. Supreme Court of India is the Apex Court with High Courts in each state. They act independently with the power of judicial review of the central and state legislations. (iv) Single Citizenship: Though India is federal; there is single citizenship for all its citizens. (v) Adult Franchise: All the citizens of the age of 18 years and above have right to vote irrespective of their caste, creed religion status etc. (vi) Fundamental Rights: Indian constitution placed certain restrictions / limitations on the powers of the state. In other words, it recognized certain rights of the people as basic and fundamental. State cannot take them away ordinarily. Those rights are called fundamental rights and they can be enforced against the State through courts. E.g. Right to do a business or a profession of choice is a fundamental right and it cannot be denied by State ordinarily. (vii) Directive Principles of State Policy: Part IV of the constitution provides for the list of directive principles. These are the directions to the State. Unlike fundamental rights, these cannot be enforced against the State but still these are fundamental in the governance of the country. FEDERAL V UNITARY: The federal system has the features of • Dual authority i.e. Union and state governments. • Written & Rigid (not easily amendable) constitution. • Independent judiciary • Distribution of powers between union and the states • Supremacy of the constitution Indian constitution has all the above features which make it federal. Besides the above, it has some unitary features also: e.g. • Single citizenship • Power to make law on state subject i) on national importance, ii) to give effect to international agreements, iii) during emergency etc. • Power to declare emergency both political and financial and imposition of president rule in a state. • Power to decide and demark territorial boundaries of a state. Though India is structurally federal, it is unitary in times of war, emergency etc Indian constitution differs in certain fundamental aspects from federal systems of the world. The mode of formation explains this. E.g. USA is a federal state and U.K is an example of a unitary government.. India is not a perfect federation like America. It has adopted the Canadian Model.
  4. 4. Chapter 1 – Constitution of India Page 4 The Mode of Formation – In American system, federal union is formed by an agreement between a number of sovereign & independent states, surrendering a part of their sovereignty to a new central organisation. In Canadian federal union, the provinces of a unitary State may be transformed into a federal union to make it autonomous. India had a thoroughly centralised unitary constitution until Government of India Act, 1935 set up a federal system in the manner as in Canada viz., by creation of autonomous units & combining them into a federation by one and the same Act. So India is a Canadian type of federation and not that of American. In this context it is relevant to quote Article 1 of the Indian Constitution. “India, that is Bharat, shall be union of states” (not federation of states) Judicial View: The question as to whether the Indian Constitution is federal with unitary features or unitary with some federal features came up in various cases before the Supreme Court & the High Courts. The majority of the Supreme Court judges in Kesvananda Bharati vs. State of Kerala were of the view that the federal features form the basic structure of the Indian Constitution. Conclusion: Preamble represents the vision of the people of India. Other parts of the constitution enable us to understand that India is a federal state with unitary features. Fundamental rights and directive principles of state policy with fundamental duties are the special features. II. FUNDAMENTAL RIGHTS Part III of the Indian Constitution guarantees six categories of fundamental rights. These are – i. Right to Equality – Articles 14 to 18 ii. Right to Freedom & personal liberty– Articles 19 to 22 iii. Right against Exploitation – Articles 23 and 24 iv. Right to Freedom of Religion – Articles 25 to 28 v. Cultural & Educational Rights – Articles 29 and 30 vi. Right to Constitutional Remedies – Article 32 [Earlier the Right to Property under Article 31 was also guaranteed as a Fundamental Right which was removed vides 44 th Constitutional Amendment Act, 1978. Now it is only a legal right]. Right to Equality – Articles 14 to 18 Right to Freedom – Articles 19 to 22 Right against Exploitation – Articles 23 and 24 Right to Freedom of Religion – Articles 25 to 28 Cultural & Educational Rights – Articles 29 and 30 Right to Constitutional Remedies – Article 32 No fundamental right in India is absolute and reasonable restrictions can be imposed in the interest of the state by valid legislation and in such case the Court normally would respect the legislative policy behind the same. [In Re: People’s Union for Civil Liberties vs. Union of India].
  5. 5. Chapter 1 – Constitution of India Page 5 1. DEFINITION OF STATE [Article 12]: SIGNIFICANCE OF THE DEFINITION: The expression state is often used in the constitution and especially in fundamental rights and directive principles. Normally it is used in a restricted sense to mean state government. But here state has a very wide meaning and hence it is appropriate to understand the scope of this expression defined under Article 12. Unless the context otherwise requires, “the State” includes – a) The Government & the Parliament of India b) The Government & the Legislature of each of the States; and c) All local or other authorities: i. Within the territory of India; or ii. Under the control of the Government of India. The expression “local authorities” refers to authorities like Municipalities, District Boards, Panchayats, Improvement Trusts, Port Trusts and Mining Settlement Boards. The Supreme Court has held that the term “other authorities” will include all authorities created by the Constitution of India or statute, on which powers are conferred by law. The words “under the control of the Government of India” include not only every authority within the territory of India, but also those functioning outside, provided such authorities are under the control of the Government of India. Test for instrumentality or agency of the State In [Ajay Hasia vs. Khalid Mujib], the Supreme Court has enunciated the following test for determining whether an entity is an agency of the State: 1) If the entire share capital of the Corporation is held by the Government 2) Where the financial assistance of the State is so much as to meet almost the entire expenditure of the Corporation. 3) Whether the Corporation enjoys the monopoly status which is given/protected by the State. 4) Existence of deep & pervasive State Control. 5) If the functions of Corporation are not of public importance & closely related to government functions. 6) If a department of government is transferred to a corporation. Judiciary, although an organ of State like executive & legislature, is not mentioned in Article 12. The position is that where the Court performs judicial functions (e.g. determination of scope of fundamental rights vis-à-vis legislature or executive action) it will not come under the definition of ‘State’. However, in exercise of non-judicial functions (e.g. administrative matters such as transfer, promotion etc), the Court can be treated as ‘State’. 2. JUSTICIABILITY OF FUNDAMENTAL RIGHTS [ARTICLE 13] In the Indian constitution, Judicial Review is dealt with under Article 13. Judicial Review refers that the Constitution is the supreme power of the nation and all laws are under its supremacy. Article 13 states that @ All pre-constitutional laws, i.e. laws which were in force before the commencement of constitution, are void to the extent to which they are inconsistent with the fundamental rights. However, a declaration by the court of their invalidity will be necessary. [Article 13(1)] @ In a similar manner, laws made after adoption of the Constitution must be compatible with the constitution, otherwise the law will be deemed to be void ab initio. [Article 13(2)] Ques: Whether a Constitutional amendment by which a Fundamental Right is taken away or abridged is also a law within the meaning of Article 13? The Supreme Court by a majority of 6 to 5 in the famous Golaknath case held that it includes such an amendment and, therefore, even a constitutional amendment would be void to the extent it takes away or abridges any of the fundamental rights. Consequently, Article 13 was amended and clause (4) was added to Article 13.
  6. 6. Chapter 1 – Constitution of India Page 6 Article 13 came for judicial review in a number of cases & the Courts have evolved doctrines like Doctrine of eclipse, severability, waiver etc. Doctrine of Severability It states that a law becomes invalid only to the extent to which it is inconsistent with the fundamental rights. So only that part of the law will be declared invalid which is inconsistent, and the rest of the law will stand. The doctrine is applicable only to Pre-Constitutional laws as according to Article 13(2), State cannot even make any law which is contrary to the provisions of this Part. Doctrine of Eclipse It states that an existing law which is inconsistent with a fundamental right becomes inoperative from the date of the commencement of the constitution; however it cannot be accepted as dead altogether. In other words, a law made before the commencement of the constitution remains eclipsed or dormant to the extent it comes under the shadow of the fundamental rights i.e. inconsistent with it, but the dormant parts become active & effective again if the prohibition brought about by the fundamental rights is removed by the amendment of the constitution. Doctrine of Waiver The doctrine of waiver of right is based on the premise that a person is his best judge and that he has the liberty to waive the enjoyment of such right as are conferred on him by the state. However the person must have the knowledge of his rights and that the waiver should be voluntary. Single Person Law 3. EQUALITY BEFORE THE LAW & EQUAL PROTECTION OF THE LAWS [ARTICLE 14] Article 14 of the Constitution says that “State shall not deny to any person equality before law or the equal protection of the laws within the territory of India”. The expression “equality before law” is a declaration that every person, whatever be his rank or position, is subject to the jurisdiction of the ordinary courts. The second expression “equal protection of the laws” directs that equal protection shall be offered to all persons within the territorial jurisdiction of the Union in the enjoyment of their rights & privileges without discrimination. IN RE: A.K. GOPALAN VS. STATE OF MADRAS A clarification has been made by the courts on this point that invalid part of the law shall be severed and declared invalid if really it is severable, i.e. if after separating the invalid part the valid part is capable of giving effect to the legislature’s intent, then only it will survive, otherwise the court shall declare the entire law as invalid. In Re: BASHESHAR NATH VS C.I.T., It was held that it was not open to citizens to waive any of his fundamental rights. Any person aggrieved by the consequence of the exercise of any discretionary power, could be heard to complain against it. A law may be constitutional, even though it relates to a single individual, if that single individual is treated as a class by himself on some peculiar circumstances. [IN RE: CHARANJIT LAL CHOWDHARY VS. UNION OF INDIA] Article 13(4) states that nothing in this article shall apply to amendments made under Article 368. The amendment was again challenged in KESAVANANDA BHARATI case: The Supreme Court examined the case and held that parliament can amend even the provisions of Fundamental rights under Article 368 but without changing the basic structure of the constitution.
  7. 7. Chapter 1 – Constitution of India Page 7 As a matter of fact, all persons all are not equal in all respects. It is here that the Doctrine of Classification comes in, according to which it is required to separate persons similarly situated from those who are not. Equals are to be governed by same laws. But as regards unequal, the same laws are not complemented. Article 14 forbids class legislation but does not forbid classification for the purposes of legislation and the one which rests upon reasonable grounds of distinction. Permissible classification must satisfy two conditions, namely: i. It must be found on intelligible differentia, which distinguishes persons or things that are grouped together from others left out of group. ii. The differentia must have a rational nexus with the object sought to be achieved by the statute in question. 4. PROHIBITION / DISCRIMINATION ON GROUNDS OF RELIGION etc. [ARTICLE 15] Article 15 states that no person shall be discriminated on the basis of caste, creed, religion, colour, language etc. Every person shall have equal access to public places like public parks, museums, wells, bathing ghats and temples etc. However, the State may make any special provision for women and children. Special provisions may be made for the advancements of any socially or educationally backward class or scheduled castes or scheduled tribes. 5. EQUALITY OF OPPROTUNITY IN MATTERS OF PUBLIC EMPLOYMENT [ARTICLE 16] Article 16 of the Constitution lies down that the State cannot discriminate against anyone in the matters of employment. All citizens can apply for government jobs. There are some exceptions. The Parliament may enact a law stating that certain jobs can only be filled by applicants who are residents in the area. This may be meant for posts that require knowledge of the locality and language of the area. The State may also reserve posts for members of backward classes, scheduled castes or scheduled tribes which are not adequately represented in the services under the State to bring up the weaker sections of the society. Also, there a law may be passed which requires that the holder of an office of any religious institution shall also be a person professing that particular religion. According to the Citizenship (Amendment) Bill, 2003, this right shall not be conferred on overseas citizens of India. 6…. ABOLITION OF UNTOUCHABILITY [ARTICLE 17] Article 17 of the constitution abolishes the practice of untouchability. Practice of untouchability is an offense and anyone doing so is punishable by law. The Untouchability Offences Act of 1955 (renamed as Protection of Civil Rights Act in 1976) provided penalties for preventing a person from entering a place of worship or from taking water from a tank or well and made all offences to be treated as non-compoundable. 7…...ABOLITION OF TITLES [ARTICLE 18] Article 18 is more a prohibition rather than a fundamental right. The British government had created an aristocratic class by conferring titles upon persons, known as Rao Bahadurs, Khan Bahadurs, Rai Saheb etc. — all these titles were abolished. • This Article now prohibits the State from conferring any titles. Citizens of India cannot accept titles from a foreign State. • However, Military and academic distinctions can be conferred on the citizens of India. • The awards of Bharat Ratna and Padma Vibhushan cannot be used by the recipient as a title and do not, accordingly, come within the constitutional prohibition The Supreme Court, on 15 December 1995, upheld the validity of such awards by saying that they should not be used as suffix or prefix. If this is done, the defaulter should forfeit the same, following the procedure laid down in regulations. 8. RIGHTS RELATING TO FREEDOM & LIBERTY [ARTICLES 19-22] Articles 19-22 contain certain fundamental freedoms. Article 19: The right to freedom in Article 19 guarantees the following six freedoms: a) Freedom of speech and expression, which enables an individual to participate in public activities. The phrase, "freedom of press" has not been used in Article 19, but freedom of expression includes freedom of press. b) Freedom to assemble peacefully without arms c) Freedom to form associations or unions. The fundamental right to form association also conveys the freedom to deny to form an association.
  8. 8. Chapter 1 – Constitution of India Page 8 d) Freedom to move freely throughout the territory of India. Though reasonable restrictions can be imposed on this right in the interest of the general public, for example, restrictions may be imposed on movement and travelling, so as to control and prevent epidemics. e) Freedom to reside and settle in any part of the territory of India which is also subject to reasonable restrictions by the State in the interest of the general public or for the protection of the scheduled tribes because certain safeguards as are envisaged here seem to be justified to protect indigenous and tribal peoples from exploitation and coercion. Article 370 restricts citizens from other Indian states and Kashmiri women, who marry men from other states, from purchasing land or property in Jammu & Kashmir. f) Deleted g) Freedom to practice any profession or to carry on any occupation, trade or business on which State may impose reasonable restrictions in the interest of the general public. Thus, there is no right to carry on a business which is dangerous or immoral. Also, professional or technical qualifications may be prescribed for practicing any profession or carrying on any trade. The constitution also imposes restrictions on these rights. The government restricts these freedoms in the interest of the independence, sovereignty and integrity of India, in the interest of morality and public order. The restrictions, however, should be reasonable. If the word reasonable is not there, Government can impose any restrictions and they cannot be challenged. This word alone gives the right to an aggrieved person to challenge any restriction imposed under this Article. In order to determine the reasonableness of the restriction, regard must be had to the nature of the business & the conditions prevailing in that trade. Reasonableness is an objective test to be applied by the judiciary. It is not conclusive but subject to the supervision of the Courts. The following factors are usually considered to assess the reasonableness of law - i. The objectives of the restriction ii. The nature, extent & emergency of the evil sought to be dealt with by the law in question. iii. How far restriction is proportional to the evil in question. iv. Duration of the restriction. v. The conditions prevailing at the time when the law was framed. ARTICLE 20 – PROTECTION IN RESPECT OF CONVICTION OF OFFENCE: Article 20 guarantees to all persons – whether citizens or non-citizens, three rights namely – i. Protection Against Post Facto laws – Ex post Facto laws are the laws made to punish the past actions retrospectively. This is against public policy and objectionable per se in the civilised society. As per Article 20(1) No person shall be convicted of an offence except for the violation of law in force at the time of commission of act nor he be awarded punishment which is more than what the law of the land prescribes at that time. This legal axiom is based on the principle that no criminal law can be made with retrospective effect, that is, for an act to become an offence, the essential condition is that it should have been an offence under an existing law at the time of committing it. ii. Protection Against Double Jeopardy – As per Article 20(2), no person can be prosecuted and punished twice for the same offence, which means, if a person has been let off after prosecution without being punished, he can be prosecuted again. The above provision is to prevent punishment more than once for the same offence. Note: details of protection of this right have been provided under Criminal Procedure Code. iii. Protection Against Self-incrimination – According to Article 20(3), no person accused of any offence shall be compelled to be a witness against himself, i.e. an accused can’t be compelled to state anything which goes against him, provided all the following 3 conditions are fulfilled- i. That he must be accused of an offence ii. That there must be a compulsion to be a witness iii. Such compulsion should result in giving evidence against him. Evidence Act, 1872 contains detailed provisions on this under the topic confessions (Sections 24- 28)
  9. 9. Chapter 1 – Constitution of India Page 9 ARTICLE 21 – PROTECTION OF LIFE AND PERSONAL LIBERTY Article 21 says – “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. The Article declares that no citizen can be denied his life and liberty except by law. This means that a person's life and personal liberty can only be taken away if that person has committed a crime. "Personal liberty" includes all the freedoms which are not included in Article 19 (i.e., the six freedoms). • The right to life does not include the right to die, and hence, suicide or an attempt thereof, is an offence. • Right to live in freedom from noise pollution is a fundamental right protected by Article 21 and noise pollution beyond permissible limits is an inroad into that right. [In Re: Noise Pollution (v), in re, (2005)]. ARTICLE 21A – RIGHT TO EDUCATION Article 21(A) was incorporated in 2002, through the 86th Amendment Act. It made the right to primary education part of the right to freedom, stating that the State should provide free and compulsory education to children from six to fourteen years of age in such manner as the State may, by law, determine. ARTICLE 22 – PROTECTION AGAINST ARREST AND DETENTION A right of a person arrested under ordinary circumstances is laid down in the right to life and personal liberty. No one can be arrested without giving him the grounds of his arrest. Article 22 does not apply uniformly to all persons and it makes a distinction between: a) Alien enemies b) Persons arrested or detained under preventive detention law, and c) Other persons The rights of a person arrested under ordinary circumstances are not available to an enemy alien. As regards persons in category ‘c)’, following rights have been provided: i. No one can be arrested without being told the grounds for his arrest. ii. If arrested, the person has the right to defend himself by a lawyer of his choice. iii. An arrested citizen has to be brought before the nearest magistrate within 24 hours excluding the time of journey. And such a person shall not be detained in custody beyond 24 hours without the authority of magistrate. PREVENTIVE DETENTION Preventive Detention means detention of a person without trial. The object of preventive detention is not to punish a person for having done something wrong but to prevent him from doing it. Under preventive detention, the government can imprison a person for a maximum of three months. It means that if the government feels that the person, being at liberty, can be a threat to the law and order, or to the unity and integrity of the nation, it can detain or arrest that person to prevent him from doing this possible harm. After three months such a case is brought before an advisory board for review. IN RE: KHARAK SINGH VS. STATE OF UP, - The Supreme Court held that the expression “personal liberty’ is not confined to bodily restraint but includes surveillance over the bodily movements of an individual thereby restraining his liberty. SATWANT SAWHNEY VS. A.P.O., - SC held that the right to travel abroad is also covered under "personal liberty". Since a passport is essential for the enjoyment of this right, the denial of a passport amounts to deprivation of personal liberty
  10. 10. Chapter 1 – Constitution of India Page 10 9…..RIGHTS AGAINST EXPLOITATION [ARTICLE 23-24] The right against exploitation, given in Articles 23 and 24, provides for two provisions: i. Prohibition of trafficking in human beings and forced labour (Begar) [Article 23] Begar, meaning involuntary work without crime, has been declared a crime and is punishable by law. Trafficking in humans (i.e. dealing in men and women like goods such as to sell or let or otherwise dispose of) for the purpose of slave trade or prostitution is also prohibited by law. An exception is made in employment without payment for compulsory services for public purposes. Compulsory military operations is covered by this provision. ii. Prohibition of employment of children [Article 24] The Article prohibits the employment of children below the age of 14 years in dangerous jobs like factories and mines. Child labour is considered a gross violation of the spirit and provisions of the constitution. RIGHTS AGAINST EXPLOITATION Prohibition of trafficking in human beings and forced labour (Begar) [Article 23] Prohibition of employment of children [Article 24] RIGHT RELATING TO FREEDOM Article 19 Article 20 Article 21 Article 21A Article 22 Guarantees 6 freedoms Protection In Respect of Conviction of Offence Protection of Life and Personal Liberty Right to Education Protection against Arrest and Detention Freedom of speech and expression Freedom to assemble peacefully without arms Freedom to form associations or unions Freedom to move freely throughout the territory of India Freedom to reside and settle in any part of the territory of India Freedom to practice any profession or to carry on any occupation, trade or business Protection against Post Facto laws Protection against Double Jeopardy&self incrimination Protection against self-incrimination
  11. 11. Chapter 1 – Constitution of India Page 11 10…. RIGHT TO FREEDOM OF RELIGION [ARTICLE 25-28] Right to freedom of religion, covered in Articles 25, 26, 27 and 28, provides religious freedom to all citizens of India. The objective of this right is to sustain the principle of secularism in India. Article 25 – Freedom of conscience & free profession, practice and propagation of religion According to the Constitution, all religions are equal before the State and no religion shall be given preference over the other. Citizens are free to preach, practice and propagate any religion of their choice. Article 26 – Freedom to manage religious affairs Religious communities can set up charitable institutions of their own. However, activities in such institutions which are not religious are performed according to the laws laid down by the government. Establishing a charitable institution can also be restricted in the interest of public order, morality and health. Article 27 – Freedom as to payment of tax for the promotion of any particular religion No person shall be compelled to pay taxes for the promotion of a particular religion. The freedom not to pay taxes is only with respect to those taxes the proceeds of which are specially appropriated in payment of expenses for the promotion or maintenance of any particular religion. Article 28 – Freedom as to attendance at religious worship in educational institutions The Article prohibits religious instruction in certain educational institutions and gives freedom to a person to participate in such religious instructions. A State run institution cannot impart education that is pro-religion. Nothing in this article shall affect the operation of any existing law or prevent the State from making any further law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, or providing for social welfare and reform. 11…..CULTURAL & EDUCATIONAL RIGHTS [ARTICLE 29-30] As India is a country of many languages, religions, and cultures, the Constitution provides special measures, in Articles 29 &30, to protect the rights of the minorities. A. Protection of interest of minorities [Article 29] Article 29 guarantees two rights – i. Any community which has a language and a script of its own has the right to conserve and develop it. ii. No citizen can be discriminated against for admission in State or State aided institutions. [IN RE: STATE OF KARNATAKA VS. DR. PRAVEEN BHAI THOGADIA] SC held that secularism means that the State should have no religion of its own & each person, whatever his religion, must get an assurance from the State that he has the protection of law to freely profess, practise and propagate his religion & freedom of conscience. RIGHT TO FREEDOM OF RELIGION Article 25 – Freedom of conscience & free profession, practice and propagation of religion Article 26 – Freedom to manage religious affairs Article 27 – Freedom as to payment of tax for the promotion of any particular religion Article 28 – Freedom as to attendance at religious worship in educational institutions
  12. 12. Chapter 1 – Constitution of India Page 12 B. Right of minorities to establish & administer educational institutions [Article 30] i. All minorities, religious or linguistic, can set up their own educational institutions to preserve and develop their own culture. ii. In granting aid to institutions, the State cannot discriminate against any institution on the basis of the fact that it is administered by a minority institution. But the right to administer does not mean that the State cannot interfere in case of maladministration. 12…….RIGHT TO PROPERTY [ARTICLE 31A, 31B and 31C] The Constitution originally provided for the right to property under Articles 19 and 31. Article 19 guaranteed to all citizens the right to acquire, hold and dispose of property. Article 31 provided that "no person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property has been taken for public purposes. The provisions relating to the right to property were changed a number of times. The 44 th Amendment of 1978 deleted the right to property from the list of fundamental rights . A new provision, Article 300-A, was added to the constitution which provided that "no person shall be deprived of his property save by authority of law". Thus if a legislature makes a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. The aggrieved person shall have no right to move the court under Article 32. Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by citizens. 13…….RIGHT TO COSTITUTIONAL REMEDIES [ARTICLE 32] Right to constitutional remedies empowers the citizens to move a court of law in case of any denial of the fundamental rights. For instance, in case of imprisonment, the citizen can ask the court to see if it is according to the provisions of the law of the country. If the court finds that it is not, the person will have to be freed. This procedure of asking the courts to preserve or safeguard the citizens' fundamental rights can be done in various ways. The Courts can issue various kinds of writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. When a national or state emergency is declared, this right is suspended by the central government. It is a cardinal principle that where there is a right there is a remedy (ubi jus ibi remedium). While remedies are available in the constitution and under the ordinary law, Article 32 makes it a fundamental right that a person whose fundamental right is violated has the right to move the Supreme Court by appropriate proceedings for the enforcement of this fundamental right. It is a far reaching provision in the sense that a person need not first exhaust all his remedies and then go to Supreme Court. On the other hand, he can directly raise the matter before SC and SC is empowered to issue directions or orders or writs. 14. .. ARTICLES 33 - 35 Article 33 authorises Parliament to restrict or abrogate the application of fundamental rights in relation to members of armed forces, para-military forces, police forces and analogous forces. Article 34 says that the Parliament may by law indemnify any person in the service of Union or of the State or any other person, for an act done during martial law. Article 35 provides that wherever Parliament has by an express provision been empowered to make a law restricting a fundamental right, Parliament alone can do so, and not the State Legislature. CULTURAL & EDUCATIONAL RIGHTS [ARTICLE 29-30] Protection of interest of minorities [Article 29] Right of minorities to establish & administer educational institutions [Article 30]
  13. 13. Chapter 1 – Constitution of India Page 13 15….AMENDABILITY OF FUNDAMENTAL RIGHTS Fundamental rights are enforceable. The courts have special responsibility to protect fundamanetal rights, which they perform by issuing writs. Though the fundamanetal rights or some parts of them can be suspended during periods of emergency under article 352 and 356, they can be amended by Parliament. But this question has been a matter of debate since beginning. Reacting to this case, Parliament enacted the 24 th Amendment Act in 1971 asserting that the Parliament can abridge or take away fundametnal rights, and that it has the power to amend the Constitution, including the fundamanetal rights. The 42 nd Amendment Act in 1976 authorised the Parliament to amend any part of the Constitution and that no amendment could be questioned in any court. It added two new clause to Article 368: i. By way of Clause (4), it has been provided that no amendment of the Constitution made before or after the 42 nd Amendment Act shall be questioned in any court on any ground. ii. New clause (5) declares that there shall be no limitation on the Constitutional power of Parliament to amend by way of addition, variation or repeal the provisions of the Artciles made under Article 368. [IN RE: SHANKARI PRASAD VS. UNION OF INDIA] (1951), the constitutional validity of first amendment (1951), which curtailed the right to property, was challenged. The SC ruled out that the power to amend the Constitution under Article 368 also included the power to amend fundamanetal rights. [IN RE: GOLAKNATH VS. STATE OF PUNJAB] (1967), The Supreme Court held that the fundamental rights are immutable & hence the Parliament cannot abridge or take away any of the fundamental rights. [IN RE: KESAVANADA BHARTI VS STATE OF KERALA] (1971), the Supreme Court upheld the validity of the 24 th Amendment, saying that the Parliament can abridge or take away the fundamental rights by amending the Constitution. But the apex court ruled that the amending power of the Parliament does not enable it to alter the ‘basic structure’ of the Constitution. The scope & extent of the doctrine of Basic Structure again came up for discussion before Supreme Court in MINERVA MILLS LTD VS. UOI in 1980 wherein the Court unanimously held clauses 4 and 5 of Article 368 & section 55 of 42 nd Amendment Act as unconstitutional, damaging or destroying the basic structure of the Constitution.
  15. 15. Chapter 1 – Constitution of India Page 15 DIRECTIVE PRINCIPLES OF STATE POLICY (Article 36 to 51) The Directive Principles of State Policy is guidelines to the central and state governments of India, to be kept in mind while framing laws and policies. These provisions, contained in Part IV (Articles 36 - 51) of the Constitution of India, are not enforceable by any Court, but the principles laid down therein are considered fundamental in the governance of the country, making it the duty of the State to apply these principles in making laws to establish a just society in the country. The Directives differ from the fundamental rights or the ordinary laws of the land in the following aspects i. The Directives are not enforceable in the courts and do not create any justiciable rights in favour of individuals. ii. The Directives require to be implemented by legislation and so long as there is no law carrying out the policy laid down in a directive, neither the state nor an individual can violate any law. iii. The Directives per-se does not confer upon or take away any legislative power from the appropriate legislature. iv. The Courts cannot declare any law as void on the ground that it contravenes any of the Directive Principles. v. The Courts are not competent to compel the Government to carry out any Directives or to make any law for that purpose. vi. Though it is the duty of the state to implement the directives, it can do so only subject to limitations imposed by the different provisions of the Constitution upon the exercise of the legislative and executive power by the State. Conflict between Fundamental Right & Directive Principles There has always been a question of priority in case of conflict between the Directives given in Part IV and Fundamental rights enshrined in Part III of the Constitution. The courts earlier, adopted a strict view in this respect and ruled that a Directive Principle could not override a Fundamental right, and in case of a conflict between the two, a Fundamental Right would prevail over the Directive Principle. The Court went on to hold that disobedience to Directive Principles cannot affect the legislative power of the State. So was the view taken in III. FUNDAMENTAL DUTIES ARTICLE 51A The Fundamental Duties are defined as the moral obligations of all citizens, to help promote a spirit of patriotism and to uphold the unity of India. These duties, set out in Part IV–A (Article 51A) of the Constitution, concern individuals and the nation. Note: Fundamental rights were taken mostly from American constitution; directive principles from Ireland and fundamental duties from Russia (the then USSR) IN RE: STATE OF MADRAS VS. CHAMPAKRAM DORAIRAJAN], (1951), the validity of a Government order alleged to be made to give effect to a Directive Principle was challenged. The Supreme Court in this case held that “The Directive Principles of State Policy have to conform to and run as subsidiary to the chapter of Fundamental Rights.” The Court ruled that while the Fundamental Rights were enforceable, the Directive Principles were not, and so the law made to implement the Directive Principles could not take away Fundamental Rights. [IN RE : L.C. GOLAK NATH AND OTHERS V. STATE OF PUNJAB AND ANOTHER], (1967), the Supreme Court departed from the rigid rule of subordinating Directive Principles and entered the era of harmonious construction. The need for avoiding a conflict between Fundamental Rights and Directive Principles was emphasized, appealing to the legislature and the courts to strike a balance between the two as far as possible. Like the Directive Principles, they are also not legally enforceable. [IN RE: SURYA NARAIN VS. UNION OF INDIA], 1982, the Court held that fundamental duties cannot be enforced by writs. Further, in [IN RE: AIIMS STUDENTS’ UNION VS. AIIMS], the Supreme Court had reiterated that though fundamental duties are not enforceable by the courts, they provide a valuable guide & aid to the interpretation of Constitutional & legal issues.
  16. 16. Chapter 1 – Constitution of India Page 16 ORDINANCE MAKING POWERS : (ARTICLES 123 & 213) 1. OF THE PRESIDENT (Article 123) Article 53 of the Constitution lays down that “the executive power of the Union shall be vested in the President”. The President of India shall, thus, be the head of the executive power of the union. The various powers included within the term ‘executive power’ have been classified as follows:- i. Administrative power, i.e., execution of laws & administration of various departments. ii. Military power, i.e., the command of armed forces & conduct of war. iii. Legislative power, i.e., summoning or prorogation etc. of the legislature. iv. Judicial Power, i.e., granting of pardon, reprieves etc. to persons convicted of crime. ORDINANCE MAKING POWER Article 123 of the Constitution provides that the President shall have the power to legislate by Ordinances at any time when at any time it is not possible to have parliamentary enactment on the subject, immediately. The scope of this Ordinance making power of President is co-extensive with the legislative powers of the Parliament, which means that it may relate to any subject on which Parliament has the right to legislate. However, as per Article 13(3), “Law” includes an “Ordinance”. But an ordinance shall be of temporary duration; it may be retrospective or may amend or repeal any law or Act of Parliament itself. This Ordinance making power of President has following peculiarities – i. The power is available only when both the Houses of Parliament have been prorogued or is otherwise not in session or if only one house is in session and if government feels the need for immediate action. ii. This power is to be exercised by the President on the advice of his council of ministers. iii. The President must be satisfied about the need for ordinance & can’t be compelled iv. Ordinances remain valid for no more than six weeks from the date the Parliament is convened unless approved by it earlier. 2. OF THE GOVERNOR (Article 213) The executive power of the state is vested in the Governor. The Governor of a state is not elected but is appointed by the President. The Governor possesses executive, legislative and judicial powers as the President except that he has no military powers like the President. The Governor’s power to make Ordinances as given under Article 213 is same as of the President & have the same force of an Act of the State Legislature. In following cases, Governor cannot promulgate any Ordinance without instruction from the President:- i. If a bill containing same provisions would have required the previous sanction of the President. ii. He would have deemed it necessary to reserve the Bill for the consideration of President. iii. State legislature repugnant to union law reserved for assent of the president to validate it The Ordinance must be laid before the state legislature when it re-assembles and shall automatically cease to have effect at the expiration of six weeks from the date of re-assembly unless disapproved earlier by the legislature. IV. LEGISLATIVE POWERS OF THE UNION & THE STATES : (ARTICLES 245 - 255) The Indian Constitution is essentially federal as it comprises of two levels of Government. At one level, there exists a Central Government having jurisdiction over the whole country and at the other level, there exists the State Government each of which exercises jurisdiction in one of the States. The two levels of Government divide & share the responsibility of governmental functions and powers between themselves. The legislative relationship between the Union and States is covered under Article 245-255 (Part XI) read with Schedule VII of the Constitution of India, according to which the entire legislative sphere has been divided on the basis of: 1. Territory with respect to which laws are to be made, and 2. Subject matter on which laws are to be made.
  17. 17. Chapter 1 – Constitution of India Page 17 1. TERRITORIAL DISTRIBUTION a) Parliament The Union Legislature, i.e. Parliament has the power to make laws for the whole of the territory of India or any part thereof; and it can also make laws which may have their application even beyond the territory of India. Parliament can make a law for a Union Territory (UT) with respect to any matter, even if it is one which is enumerated in the State List. With regard to UTs, there is no distribution of legislative powers; Parliament thus has plenary powers to legislate for UTs with regard to any subject. b) State Legislature The State Legislatures have the power to make laws for the whole or any part of the territory of respective state. It can also make laws which may extend beyond the territory of that State but such law can be valid only on the basis of “territorial nexus”, i.e. if there is sufficient connection between the state & the subject matter. 2. DISTRIBUTION ON THE BASIS OF SUBJECT MATTER • Those subjects which are of national interest or importance or which need national control and uniformity of policy throughout the country have been included in the UNION LIST (List I). • The subjects which are of local or regional interest and on which local control is more expedient, have been assigned to STATE LIST (List II). • Those subjects which ordinarily are of local interest yet need uniformity on national level or at least with respect to some parts of the country, i.e. with respect to more than one State have been allotted to the CONCURRENT LIST (List III). LEGISLATIVE POWER OF UNION & STATES WITH REFERENCE TO LEGISLATIVE SUBJECTS 1. With respect to subject in List I, the Union Parliament has the exclusive power to make laws. If same subject which is in List I is also included in List II or List III, in such a situation that subject shall be read only in List I. 2. With respect to subjects in List II, the legislature of a state has the exclusive power to make laws. 3. With respect to subjects enumerated in List III, Parliament & State Legislature both have the powers to make laws. However, in case of repugnancy, the law made by Parliament shall prevail over the law made by Legislature and the latter will be valid only to the extent to which it is not repugnant to the former. There is one exception that if there is already a law of Parliament on any subject enumerated in in Concurrent List & a state also wants to make a law on the same subject then a state can do so provided that law has received the assent of President. 4. With respect to all those matters which are not included in any of the three lists, Parliament has the exclusive power to make laws. It is called the “Residuary Legislative Power of Parliament”. For e.g. Power to impose Service Tax on commercial services POWER OF PARLIAMENT/ UNION & STATES WITH REFERENCE TO LEGISLATIVE SUBJECTS The Union Parliament is also competent to make law over the State List under the following circumstances:- i. In the national interest (Article 249) In normal times when Council of States (Rajya Sabha) passes a resolution by two-thirds majority of its members present and voting that it is necessary in the national interest that Parliament should make law with regard to any matter enumerated in the State List, then Parliament is competent to make law in that matter for the whole or any part of India. These laws will automatically cease to have effect on expiration of six months after the proclamation ceases to operate. In Re: STATE OF BOMBAY VS. R.M.D.C., SC held that sufficiency of nexus will be there if two conditions are fulfilled: i. The connection must be real & not illusory; and ii. The liability sought to be imposed by that law must be pertinent to that connection.
  18. 18. Chapter 1 – Constitution of India Page 18 ii. When the proclamation of Emergency is in operation (Article 250) While a proclamation of emergency is in operation, Article 250 removes restriction on the legislative authority of Parliament in relation to subjects enumerated in State List. Under Article 352, if the President is satisfied that a grave emergency exists where-by the security of India or any part of the territory thereof is threatened by war or external aggression, he may by proclamation make a declaration to that effect in respect of the whole of India or territory thereof. These laws will cease to have effect on expiration of six months after the proclamation ceases to operate. iii. On the request of two or more states (Article 252) If the legislatures of two or more States pass a resolution to the effect that it is desirable to have a parliamentary law in any matter in the State List, then the Parliament can make law for those States. iv. Legislation for enforcing international agreement (Article 253) The Parliament is competent to legislate on any matter pertaining to the State List if such legislation is deemed necessary for the implementation of international treaties or agreements concluded with foreign States. v. Breakdown of Constitutional machinery in a State (Article 356 & 357) In case of the declaration of President's Rule in any State under Article 356 of the Constitution, the Parliament is competent to legislate on any matter included in the State List. However, the power conferred under Article 356 is conditional and not absolute – the condition being the existence of the report of the Governor. As per Article 357, the laws made during subsistence of proclamation shall continue to be in force unless & until they are repealed by the State Legislature. Except in the above-mentioned occasions, the Parliament of India is not competent to make law in the State List. If at any time, the Parliament encroaches upon the rights of the States, the Supreme Court can prevent such encroachment of the Parliament through its power of Judicial Review. THE UNION PARLIAMENT IS ALSO COMPETENT TO MAKE LAW OVER THE STATE LIST UNDER THE FOLLOWING CIRCUMSTANCES:- In the national interest (Article 249) When the proclamation of Emergency is in operation (Article 250) On the request of two or more states (Article 252) Legislation for enforcing international agreement (Article 253) Breakdown of Constitutional machinery in a State (Article 356 & 357) INTERPRETATION OF LEGISLATIVE LISTS The following principles have been applied for giving effect to various items in the lists: 1. Plenary Power The rule states that the words used in the Constitution must receive most liberal construction and if they are words of wide amplitude, they must be interpreted so as to give effect to that amplitude. Thus a legislature to which power is granted over a particular subject may make law on any or all aspects of it – be it retrospective, prospective and on matters ancillary to it.
  19. 19. Chapter 1 – Constitution of India Page 19 2. Doctrine of Pith & Substance Pith means "true nature" or "essence" and substance means the essential nature underlying a phenomenon. Thus, the doctrine of pith and substance relates to finding out the true nature of a statute. This doctrine is widely used when deciding whether a state is within its rights to create a statute that involves a subject mentioned in Union List of the Constitution. The basic idea behind this principle is that an act or a provision created by the State is valid if the true nature of the act or the provision is about a subject that falls in the State list. 3. Doctrine of Colourable Legislation It is based on the maxim that what cannot be done directly cannot also be done indirectly. It is only when a legislature having no power to legislate frames legislation in a way that it is camouflaging the same as to make it appear to fall within its competence, the legislation thus enacted may be regarded as colourable legislation. ………………x………………… V. FREEDOM OF TRADE, COMMERCE & INTERCOURSE : (ARTICLES 301 - 305) The Constitution of India in Part XIII, wide Articles 301 to 307, deals with freedom of Trade, Commerce and Intercourse. Out of these articles, Article 301 creates an overall limitation on all legislative powers of the Union and the State legislature. This Article guarantees the freedom of trade, commerce & intercourse and runs in the following words:- “Subject to the other provisions of this Part, trade, commerce & intercourse throughout the territory of India shall be free”. In view of above, it seems as if every law shall become contrary to Articles 301 and unless saved by Articles 302-307 shall be unconstitutional. Article 301 The trade and commerce throughout the territory of India shall be free and without restriction. The restriction may generally be by way of taxes. The taxes may be compensatory where they are levied for any service provided it is not taken as restriction. But if the tax is levied to regulate or to prevent certain people from carrying on business, it amounts to restriction. Thus the object of Article 301 is to break down the barriers between the states and to make the country as one unit with a view to encourage trade and commerce. The freedom guaranteed by Article 301 is not made absolute & is to be read subject to restrictions provided in Articles 302-305. However, the Parliament can impose restrictions on freedom of trade commerce and intercourse in public interest. [Article 302] The Parliament while imposing restrictions under Article 302 cannot discriminate between different states. However, the parliament can discriminate in case of scarcity of goods. [Article 303] It enables state legislature to impose taxes on goods coming from other states, if goods produced within the state are subjected to such taxes. [Article 304] The law which was already in force at the commencement of the Constitution shall not be affected by the provisions of Article 301 except by the order of President. Any law passed by the Union thereby creating the state monopoly shall not be affected by the provision of Part XIII of the Constitution of India. [Article 305] To avoid such situation, the Supreme Court in [In Re: ATIABARI TEA CO. VS. STATE OF ASSAM] held that only those laws which “directly and immediately” restrict or impede freedom of trade & commerce are covered by Article 301 and such laws which directly and incidentally affect the freedom guaranteed in that article are not within the reach of Article 301.
  20. 20. Chapter 1 – Constitution of India Page 20 VI. STATE MONOPOLY: The laws which create state monopoly in any trade, etc. are saved from attack under Article 301 i.e. they are valid irrespective of the fact that they directly restrict the freedom of trade & commerce. So, if a state creates a monopoly in road, transporters cannot complain that their freedom of trade & commerce has been affected. After the Constitution (Amendment) Act, 1951, the States create monopoly in favour of itself, without being called upon to justify its action in the Court as being reasonable. Article 19(6) makes it clear that the freedom to profession, trade or business will not be understood to mean to prevent the state from undertaking wither directly or indirectly, any business, complete or partial. If a law is passed creating a State monopoly, the Court should enquire the provisions which are basically & essentially necessary for creating State monopoly. VII. THE JUDICIARY: The judiciary under the present system comprises of Supreme Court, High Courts, Subordinate Courts and Tribunal Courts. Supreme Court • Supreme Court (SC), the highest court in the country – both for the matters of ordinary law and for interpreting the Constitution – is an institution created by the Constitution. • It entertains appeals (in civil, criminal & other cases) from High courts & certain tribunals. • It has writ jurisdiction for enforcing fundamental rights. • It can advise President on a reference by President on question of fact and law. High Courts • High Courts under British India were established under the Indian High Courts Act, 1861 and post-independence under the Constitution or special Acts. • High courts have appellate, civil and criminal jurisdiction over lower courts. • High Courts have writ jurisdiction for fundamental rights & certain other purposes. Subordinate Courts • These may be civil or criminal and original or appellate. • These have been created not under the Constitution but under laws of competent Legislature. • Civil courts are created under Civil Procedure Code and criminal courts under the Code of Criminal Procedure. Civil Courts: In each district, there is a District Court presided over by a District judge, with a number of Additional District Judges attached to the court. Below that Court are the Courts of Judges (Subordinate Judges) or ‘Munsiffs’. Criminal Courts: These consist of Magistrate & the Courts of Session. Magistrates may be – Judicial and Executive. The latter do not try criminal prosecutions; their proceedings do not end in conviction or acquittal but in certain types of restrictive orders. As regards Judicial Magistrates, they are of two types – Second Class and First Class. Judicial Magistrates are subject to the Court of Session (court of original jurisdiction). The Court of Session can try all offences, but a sentence of death requires confirmation by the High Court. Special Tribunals These deal with direct taxes, labour, excise, customs, claims for accidents caused by motor vehicles, copyright & monopolies and restrictive trade practices. In [IN RE: R.C. COOPER VS UNION OF INDIA], 1970,the Bank Nationalisation case, the Supreme Court held that the impugned law which prohibited the named banks from carrying the banking business was a necessary incident assumed by the Union & hence was not liable to be challenged under Article 19.
  21. 21. Chapter 1 – Constitution of India Page 21 Writ Jurisdiction of High Courts and the Supreme Court The Courts in India enjoy the powers of judicial review and this is accepted as one of the basic features of our Constitution. The right of superior Courts to invoke the judicial review is guaranteed by the Constitution of India under Article 226 which confers power of Judicial Review on the High Courts and Article 32 which confers power of Judicial Review on the Supreme Court. Article 32 of the Constitution grants an extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them. The constitution gives wide powers to all High Courts to ensure that injustice is not tolerated in any sphere. Article 226 provides that notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. It is important to note that the power is not only to enforce fundamental rights but for any other purpose, which makes its powers even wider than Supreme Court. TYPES OF WRITS A writ is a formal written order issued by a court. The Constitution broadly provides for five kinds of writs: habeas corpus, certiorari, mandamus, quo warranto and prohibition. 1. Habeas Corpus (literally meaning 'let us have the body') A person, when arrested, can move the Court for the issue of Habeas Corpus. It is an order by a Court to the detaining authority to produce the arrested person before it so that it may examine whether the person has been detained lawfully or otherwise. If the Court is convinced that the person is illegally detained, it can issue orders for his release. Under Article 32 and 226, any person can mover this writ to Supreme Court or High Court, respectively. 2. Mandamus Mandamus is a Latin word, which means "We Command". Mandamus is an order from a superior court to a lower court or tribunal or public authority to perform an act, which falls within its duty. It is issued to secure the performance of public duties and to enforce private rights withheld by the public authorities. Simply, it is a writ issued to a public official to do a thing which is a part of his official duty, but, which, he has failed to do, so far. This writ cannot be claimed as a matter of right. It is the discretionary power of a court to issue such writs. Mandamus does not lie against the President or Governor of a State for the exercise of their duties and power. 3. Prohibition Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This Writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. It is a Writ issued by a superior court to lower court or a tribunal forbidding it to perform an act outside its jurisdiction. After the issue of this Writ proceedings in the lower court etc. come to a stop. The Writ is issued by any High Court or the Supreme Court to any inferior court, prohibiting the latter to continue proceedings in a particular case, where it has no legal jurisdiction of trial. While the Writ of mandamus commands doing of particular thing, the Writ of prohibition is essentially addressed to a subordinate court commanding inactivity. It is, thus, not available against a public officer not vested with judicial or quasi-judicial powers. The Supreme Court can issue this Writ only where a fundamental right is affected. 4. Certiorari (Literally, Certiorari means to be certified) The Writ of Certiorari is issued by the Supreme Court to some inferior court or tribunal to transfer the matter to it or to some other superior authority for proper consideration. This Writ can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court. In other words, while the prohibition is available at an earlier stage, Certiorari is available on similar grounds at a later stage. It can also be said that Writ of prohibition is available during the pendency of proceedings before a sub-ordinate court, Certiorari can be resorted to only after the order or decision has been announced.
  22. 22. Chapter 1 – Constitution of India Page 22 5. Quo Warranto (literally meaning "by what warrants?") It is a writ issued with a view to restraining a person from acting in a public office to which he is not entitled. The Writ of quo-warranto is used to prevent illegal assumption of any public office or usurpation of any public office by anybody. For example, a person of 62 years has been appointed to fill a public office whereas the retirement age is 60 years. Now, the appropriate High Court has a right to issue a Writ of quo-warranto against the person and declare the office vacant. VIII. DELEGATED LEGISLATION: Delegated legislation, also referred to as secondary legislation, is legislation made by a person or body other than Parliament. Parliament, being given the authority for legislation to be delegated, enables other persons or bodies to provide more detail to an Act of Parliament. The legislation created by delegated legislation must be made in accordance with the purposes laid down in the Act. The function of delegated legislation is it allows the Government to amend a law without having to wait for a new Act of Parliament to be passed. The increasing complexity of modern administration & the need for flexibility capable of rapid readjustment to meet changing circumstances, have made it necessary for the legislature to delegate its powers. PRINCIPLES APPLICABLE – i. Doctrine of Implied Power – This means where the legislature has conferred any power, it must be deemed to have also granted any other power without which that power cannot be effectively exercised. The body, to which powers of subordinate legislation are delegated, must act within the powers conferred on it and not beyond the extent justified by the Doctrine of Implied Power. ii. Conditional Legislation – It is defined as a statute that provides controls but specifies that they are to come into effect only when a given administrative authority finds the existence of conditions defined in the statute, i.e. the power of legislation is exercised by the legislature conditionally, leaving it to the discretion of an external authority. iii. While delegating the power to an outside authority, the legislature must act within the ambit of the powers defined by the Constitution and subject to the limitations prescribed thereby. TYPES OF WRITS Habeas Corpus ‘Let us have the body' Mandamus "We Command". Prohibition To forbid or to stop Certiorari To be certified QuoWarranto "By what warrants?"