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NOTES ON THE FUNDAMENTAL RIGHTS OF THE INDIAN CONSTITUTION PART 1
ARTICLE 12As per Article 12 of the Indian Constitution ‘the State includes Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the Control of the Government of India’.Meaning of Article 12Article 12 of the Indian Constitution gives us an overview as to what elements of our democracy can come under the terminology of the ‘State’, which has been used in various Articles under Part III of the Indian constitution, which comprises of our fundamental rights. So, as per Article 12, State comprises of:1) The Government at the centre and the Parliament of India2) The Governments in State level and the respective State Legislatures. 3) All local or other authorities which are present in the territorial boundaries of India.4) All local or other authorities which are controlled by the Central Government.Explanation of Article 12When one analyses the broad categories one finds under the purview of Article 12 as State, the first two categories include the organs of Executive and Legislative of the Central and the States.The terminology ‘Government’ which has been used in the first two categories also includes the various departments under the Control of the Government like the Income-Tax Department[1], Forest Research Institute[2] etc. The difficulty arises with the third category as there is no inference in the Article as to what ‘local authorities’ are. Section 3(31) of the General Clauses Act, 1897 states that authorities refers to Municipalities, Panchayats, Improvement Trust, District Boards and Mining Settlement Boards. The characteristics required by be a local authority has been explained in the case Union of India v. R.C. Jain[3], as:1) There should be separate legal existence as a corporate bodyfor the authority.2) It must perform the functions which are entrusted to it in a specific area, where the people who have elected and composed such bodies reside.3) The authority must enjoy autonomy either absolute or to a limited extent with respect to its functioning, administration and the policies to be adopted by it.4) Functions entrusted by it through a Statute must be in the category of functions which are entrusted to municipal bodies.5) The authority must also have power to raise funds for performing activities and projects either by levy of taxes, charges or any kind of fees. This levy must be in addition to amount given by the concerned State Governments, and the authority must have control and management over the fund raised by it.By applying the above principles, in P.Srinivastava v. Union of India[4], the Court held that Ramgarh Cantonment Board, created by the Cantonments Act is a local authority and is therefore included in the term ‘State’.The term ‘Other authorities’, mentioned in the fourth category has not been defined in any Statute or Constitution. The Courts have interpreted this term in many precedents. In University of Madras v. Shantha Bai[5], for the first time ‘other authorities’ were interpreted by the Court. By applying the principle of esjudem generis the Court held that the Madras University was not funded by the State and did not come under the purview of Article 12.But this restricted interpretation of ‘other authorities’ was over ruled in the case of Ujjambai v. State of U.P[6], where Sales Tax officer was held to be ‘State’as the authority exercised functions vested to it by the Government and was one of the instruments working under the Government. In Rajasthan State Electricity Board v. Mohan Lal[7], the court had arrived at a conclusion that the term ‘other authorities’ was large enough to encompass all authorities created by Actsand working in India, or under the power of Government of India.By applying this principle, in many cases different authorities like Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation[8], International Airport Authority[9], Regional Engineering College[10], Food Corporation[11], Mysore State Road Transport Corporation[12], National Agricultural Co-operative Federation of India[13]etc, have been interpreted to be within the purview of State under Article 12.Need and Importance of Article12When one analysis our fundamental rights in, we can find that the term ‘State’ has been used repeatedly. In order to avoid confusion as to what constitutes ‘State’ or not, our constitution framers have incorporated this provision. There may be various incidents where citizens have approached the Court alleging the violation of their fundamental rights by different authorities, and in order for the court to arrive at a justful decision as to whether the liability is vested upon the Government or not, it is important to first analyze whether the said authority is within the purview of Article 12.ARTICLE 13Article 13(1) of the Indian Constitution declares that all laws in force in the territory of India immediately before the commencement of this Constitution shall be void to the extent to which they are inconsistent with the provisions of part III of the Constitution. Clause (2) of this Article enshrines that the State shall not make any law which takes away or abridges the fundamental rights conferred by part III of the Constitution and any law made in contravention of fundamental rights shall, to the extent of contravention, be void.Meaning of Article 13As per clause (1), all pre-constitutional laws which are inconsistent with the fundamental rights shall be null and void once the constitution of our country commences. While clause (2) deals with the post-constitutional laws, whereby this Article mandates that the legislature shall not make any laws which is in violation to the fundamental rights.Explanation of Article 13Article 13 makes the fundamental rights enforceable through the court of law. This provision secures the Supremacy of the Constitution especially with respect to fundamental rights. This Article provides the power of Judicial review upon the Courts whereby by virtue of Article 32 and Article 226, the Supreme Court and the High Court can declare any law void and unlawful if such law infringes the fundamental rights in our Constitution.Article 13 is observed by the Courts as charter for judicial review[14]. This feature of judicial review is one of the basic and integral structures of our Constitution[15].When cases come before the Courts where the provisions of a particular act which is inconsistent with the provisions of constitution are separable from the valid portions, the Courts applies the Doctrine of Severability to repeal away the inconsistent portions and to retain the valid portions. In R.M.D.C v. Union of India[16], the constitutionality of the Prize Competitions Act, 1955 was challenged as being violative of Article 19(1) (g). The court applied the Doctrine of Severability and repealed away the competitions which were of gambling nature and retained the competitions where skill was involved. While in the case of A.K. Gopalan v.State of Madras[17], when the Court repealed away the Section 14 of Preventive Detention Act, 1950, the Court observed that the rest of the Statute would remain constitutional.But when cases come where the parts of Statute are inconsistent with the fundamental rights, the doctrine of Eclipse will be applied by the Courts. As explained by the Court in Bhikanji Narayan v. State of Madya Pradesh[18],when the provisions of a Statute is inconsistent with the fundamental rights , those provisions are considered to be overshadowed by the fundamental rights and remains dormant, but are not dead. Through an amendment the inconsistency of the provisions as to the fundamental rights can be changed and it would revive itself to be a valid law. This doctrine is only applicable to those statutes which were formulated and were in existence before the commencement of the Constitution[19]. In Keshava Madhava Menonv. State of Bombay[20],Court observed that a law in force before the commencement of constitution does not become null and void if it found to be inconsistent with the fundamental rights. Such laws would only be void up to which it is invalid to the fundamental rights, and such inconsistency can be rectified through amendments while applying the Doctrine of Eclipse.Another Doctrine which is discussed with respect to Article 13 is the Doctrine of Waiver. According to this doctrine, any person who is entitled to any kind of right can relinquish his/her right voluntarily. Once he/she waives the individual right, they would not be able to claim it afterwards. In Suraj Mall Mehto v. A.V. VisvanathSastri[21] and Muthiah v. Commissioner of Income-Tax[22], the court held that doctrine of waiver is not applicable to fundamental rights. No person can waive any of his rights enshrined under Part III of the constitution.Need and importance of Article 13The importance of Article 13 lies in the fact that in a democracy set-up like ours, where every five years a different political party would form the Government and be part of our law making and executing process, it is essential to have a mechanism which would not allow them to enact laws to suit their ideologies and be inconsistent with our constitution. Article 13 ensures the supremacy of the Constitution and alsotakes care of the fact that the people of this country would not be deprived of their fundamental rights through any legislation. ARTICLE 14Article 14 provides that ‘the State shall not deny to any person equality before law or equal protection of law within the territory of India’.Meaning of Article 14This Article of our Constitution establishes the concept of ‘Rule of Law’ and ‘equal protection of laws’. It means that no human being should be placed above law and that every person irrespective of gender, rank or position should be subjected to the law of the land. No discrimination shall be between persons when they come before a court of law, based on any criteria.Explanation of Article 14The phrase ‘equality before law’ somewhat has a negative concept as it implies absence of any kind of special privileges in favour of any class of individuals, while the expression ‘equal protection of laws’ is positive in nature and ensures that each individual shall be treated equally in all circumstances. In Srinivasa Theatre v. Government of Tamil Nadu[23], the Court observed that the expressions ‘equality before law’ and ‘equal protection of law’ did not mean same thing. The term ‘law’ in the former expression was used in a philosophical sense, while in the latter expression ‘law’ denotes specific laws which are in force.Article 14 permits reasonable classification but prohibits class legislation- Though the Article states that same laws should be applied to every persons, it allows classification. The said classification must not be arbitrary, artificial or evasive; it should be reasonable classification[24].In Charanjit Lal Chowdhury v. Union of India[25], the court while upholding the constitutionality of Sholapur Spinning and Weaving Company (Emergency Provisions) Ordinance, 1950, observed that law should be constitutional, even if it is applicable to one person or class of persons. Class legislation is prohibited by Article 14. Class legislation is when a particular Statute differentiates between people belonging to same class unequally. In D.S. Nakara v. Union of India[26], the Supreme Court struck down a Pension rule which classified government pensioners retiring before March 31, 1979 and those retiring on or after that date, as violative of Article 14, since they belonged to the same class with respect to computation of pension.To verify whether legislationis reasonable or not, the Courts have evolved the test of reasonable classification in R.K.Dalmia v. Justice Tendolkar[27]:1) The classification must be founded on an Intelligible Differentia, which distinguishes persons or things which are grouped together from others left out from the group.2) The differentia must have a rational relation or nexus tothe object sought to be achieved by the Statute.Instances of Classification1. In Ajay Hasia v. Khalid Mujib[28],when for the oral interview a high percentage of the total markswere allotted for the admission to the Engineering College, the Court said that awarding more than 15 percentage of the total marks for oral interview is an arbitrary action which violates Article 14.2. In Mithu v. State of Punjab[29], Supreme Court struck down Section 303 of Indian Penal code as violative of Article 14 as there was no rationale in differentiating between persons who commit murder while serving life imprisonment and persons who commit murder when not serving life imprisonment for the purpose of awarding death penalty.3. In Air India v. NargeshMeerza[30],Air India and Indian Airlines Regulations which provided for the air hostess to retire upon the attainment of the age of 35 or on marriage or pregnancy, if it took place on the first four years of marriage was struck down as it is violative Article 14.4. In P. Rajendra v. State of Madras[31], the provision for allotment of seats in medical colleges in the State amongst the various districts in the State in the ratio of the population of each district to the total population of the State was struck down as unconstitutional. Need and importance of Article 14 Article 14 is one of the fundamental rights provided in our Constitution. This Article is important as if there was no such provision available in our Constitution it would have led to many arbitrary classifications persisting in our country. Whenever legislation or a provision is challenges before the Court, the prime aspect the judiciary looks into is whether the said Statute or its provision has any arbitrary classification in it. If there is any arbitrary provision, then that provision or Act would be struck down as unconstitutional. [1] Bidi Supply Co. v. Union of India, AIR 1956 SC 479[2]Purushottam Lal v. Union of India, AIR 1973 SC 1088[3] AIR 1981 SC 951[4] AIR 1981 Patna 212[5] AIR 1954 Mad. 67[6] AIR 1962 SC 1621[7] AIR 1967 SC 1857[8] Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331[9]R.D.Shetty v. International Airport Authority, AIR 1979 SC 1628[10] Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487[11] State of Punjab v. Raja Ram, AIR 1981 SC 1694[12] Mysore S.R.T.C v. Devraj Urs, AIR 1976 SC 1027[13]A.M.Ahamed and co v. Union of India, AIR 1982 Madras 247[14]S.S Bola v. B.D.Sardana, AIR 1997 SC 3127[15]Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461[16] AIR 1957 SC 628[17] AIR 1950 SC 27[18] AIR 1955 SC 781[19] Deep Chand v. State of U.P, AIR 1959 SC 648[20] AIR 1951 SC 128[21] AIR 1954 SC 545[22] AIR 1956 SC 269[23] AIR 1992 SC 999[24] State of West Bengal v. Anwar Ali, AIR 1952 SC 75[25] AIR 1951 SC 41[26] AIR 1983 SC 130[27] AIR 1958 SC 538[28] AIR 1981 SC 487[29] AIR 1983 SC 473[30] AIR 1981 SC 1829[31]AIR 1968 SC 1012[32]Writ Petition (Criminal.)No.194 of 2017
Ramya Thoti
NOTES ON THE FUNDAMENTAL RIGHTS OF THE INDIAN CONSTITUTION PART 2
ARTICLE 15Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to· (a) access to shops, public restaurants, hotels and palaces of public entertainment; or· (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public(3) Nothing in this article shall prevent the State from making any special provision for women and children(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.MEANINGArticle 15 of the constitution states that discrimination should not be done on the basis religion, race, caste, sex or the place of birth which means that there should be no restriction for accessing anything which is opened or made for public use. Everyone is allowed to access any shop, hotel, hospital cinema hall or any other place which is for the public use .article also says if any individual is restricted from using the public facility which is available for general public . It will lead to the violation of his right. Whereas clause (3) & (4) of the article is referred to as the exception of article 15. As it says that the state can make special provision for women and children or for the advancement of any socially and educationally backward classes of citizens or for the scheduled caste and tribes. EXPLANATIONArticle 15 is one of the fundamental right given to the citizens of India which states that no discrimination should be done with any citizen of India on the basis of religion, race, caste, sex or the place of birth (re,ra,ca,s,p)Article 15(1) states that no state is allowed to discriminate among people on the basis of re, ra, ca, s, p .if any state do so it will be void and will lead to violation of fundamental right of the citizen.Article 15(2) states that if any citizen is being discrimination on all or any one of the ground or is being restricted from using anything which is made by the government for the general public use such as accessing to shops, hospitals, cinema halls or use of tanks, roads, water tanks or anything which is made for the use of society.If any citizen is restricts from using it or available facility of the same, it will lead to the violation of the fundamental right of the citizen.However, clause(3 )and (4) are referred to as the exception of the article 15. As clause (3) says that state can make special provision which are made in favour of women and children and such provisions will not lead to be the ground of discrimination.Clause(4) of the article 15 says that state can make special provisions if they are for the advancement or for the benefit of the Socially and educationally backward classes of citizens means the weaker section who are backward in terms of social class and educational class.Scheduled caste means those who are considered as untouchable in earlier times.Scheduled tribes means those people who traditionally lives in forest. They are also called the tribe people.Clause(4) gives special privilege to state for making special provisions as it will help these backward class of people to come in the mainstream of the society. As earlier they were treated to be marginalized and were not in the mainstream, so in order to improve these weaker class of people government had taken initiative by providing them reservation in the field of job, education which will help them to improve and match the mainstream of the society.Clause (5) has been inserted by constitution(ninety-third Amendment) Act, 2005 which provides that nothing in article 15b or article 19(1)(g) prevent the state in making any special provision by law for the advancement of socially and educationally backward classes of citizen or for SC/ST in so far such special provision related to admission to educational institutions include private ones whether aided or unaided by state other than minority institution.NEED AND IMPORTANCE Need for article 15 arises in order to protect the discrimination which was in practice in various states, places, areas. As people were getting discriminating on the grounds of sex, caste, race, religion and place of birth which lead them to be treated as backward and were not able to maintain the balance in the society which act as a barrier in the society.Therefore it was the need to make such law which prohibit the discrimination and to maintain the balance between the weaker section and other section of the society.ARTICLE 16 Equality of opportunity in matters of public employment· (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State· (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State· (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment· (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State· (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denominationMEANINGArticle 16 provides equality of opportunity in matters of public employment. It states that all citizens must get equal opportunity and must not be discriminate on the basis of religion, race, caste, sex, descent, place of birth or residence. But this article too has exceptions which are stated in clause(3)(4)(5) as it says that a law can be made for the weaker section of the society in order promote them and bring them to the mainstream of the society.EXPLANATIONArticle 16 of the constitution deals with equality of opportunity in public employment.Article 16(1) guarantee that there shall be equal opportunity for all citizens in the matter relating to employment or appointment to any office under the state. It means that every person will get equal opportunity to be eligible for a particular employment or job.Article 16(2) states that no citizen shall be discriminate on the ground of race, religion, caste, sex, descent, place of birth or residence which means that every citizen must get equal opportunity in public employment or appointment of jobs.If any person is being discriminate on the ground of clause (1) and (2) it will lead to the violation of the fundamental right of that person and a citizen can go in the court of law.Whereas clause(3)(4)(5) of the article 16 is referred to as the exceptions of the article 16 of the constitutionArticle 16(3) of the constitution states that parliament can make special laws for reservation in particular state . such reservation will not lead to the violation of clause(1)&(2)In case of M R Balaji vs. Mysore court put 50% reservation in almost all states except Tamil Nadu (69% under 9th schedule) and Rajasthan ( 68% quota including 14% for forward castes, post gujjar violence 2008) has not exceeded 50% limit. Tamilnadu exceeded limit in 1980 Andhra Pradesh tried to exceed limit in 2005 which was again stalled by high court.Article16(4) states that a provision can be made for the reservation of any backward class of citizen which state thinks are not adequately being represented in the services in the state. It says that the class of condition is backward socially and educationally. The said class is not adequately represent in the state. The second condition should be interpret in the light of article 335. The claim of SC/ST shall be taken into consideration with the maintenance of efficiency of administration.Article 16(5) states that nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.In UOI v/s S.Kalugasalamoorthy held that when person is selected on basis of his seniority, the scope of considering him against reserved quota does not raise.NEED AND IMPORTANCE Need for article 16 arises in order to protect the discrimination which was in practice in various states , places, areas. As people were getting discriminating on the grounds of sex, caste, race, religion and place of birth which lead them to be treated as backward and were not able to maintain the balance in the society which act as a barrier in the society.Therefore it was the need to make such law which prohibit the discrimination and to maintain the balance between the weaker section and other section of the society.ARTICLE 17ABOLITION OF UNTOUCHABILITY“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.MEANINGArticle 17 of the constitution abolish untouchability and forbide untouchability neither defines in constitution or in any article. It refers to social practice which looks down upon certain depressed classes solemnly on account of birth and needs any discrimination against them on this ground.EXPLAINATIONUntouchability is referred to as the social practice which look down upon certain depressed classes which are being discriminated from the mainstream of the society.General statute related to untouchability· The protection of civil rights actsCivil rights mean any rights acquiring to the person by reason of abolition by untouchability under article 17.Punishment: min 1 year and max 2years imprisonment· Preventing any person from entering any place or public workshop denying any person from entering any public restaurant and places.· Insulting a member of depress class on the ground of untouchability. It is a crime.NEED AND IMPORTANCE Need for article 17 arises in order to protect the discrimination which was in practice in various states, places, areas. As people were getting discriminating on the grounds of being untouchable which lead them to be treated as backward and were not able to maintain the balance in the society which act as a barrier in the society.Therefore it was the need to make such law which prohibit the discrimination and to maintain the balance between the depressed section and other section of the society.
NOTES ON THE FUNDAMENTAL RIGHTS OF THE INDIAN CONSTITUTION PART 3
18. Abolition of titles (1) No title, not being a military or academic distinction, shall be conferred by the State. (2) No citizen of India shall accept any title from any foreign State.(3)No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.(4) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State Meaning Titles like zamindaar, bahadhur etc. were prevalent in medieval India. But this article 18 of the Indian constitution abolished the titles as to preserve the equality and also to maintain the democracy in the country. There are four clauses in this article which states:Ø Preventing the state to confer titles except for military and academic achievements. Ø the citizens of the India shall not accept any titles from the foreign state. Ø But foreign nationals who holds the office or trust under the state can accept titles from any foreign state with the consent of the president only. Titles may effect the true sense of democracy by creating unnecessary hereditary heirarchies in the society. Explanation Before independence, it was the British tradition to award titles like Rao saheb , Diwan saheb, Rao bahadur,etc. This resulted into artificial distinction in the society as the people with this title got certain privileges. The Constitution has abolished such titles to preserve the true sence of democracy by ensuring equality and dignity among citizens of the country. In Indian Constitution, as its Preamble states, wanted to rebuild a cohesive and integrated society by providing for equality of status. This is what ARTICLE 18 does and is all about. Recognition of the titles and the creation of a hierarchy of aristocracy which is its consequence had been considered as an anti- democratic practice in the early eighteen century by both the American and the french revolutions. A democracy should not create titles and which leads to inequality. Dr. B. R. Ambedkar quoted in the constituent assembly that Article 18 did not create a justifiable right. "One of the conditions is that he must not accept a title, if he did, it would be open for Parliament to decide by law what should be done to persons who violate the provisions of this article. One of the penalties may be that he may lose the right of citizenship." thus, this article put an obligation to both the state and citizens from recognizing and accepting the titles. The prohibition applicable to not only the state and the citizens but also extends to the foreigners who holds office or trust under the state, but they can accept the titles from another state with the consent of the president. Need and importanceArticle 18 of the Indian constitution which talks about the abolition of the titles is very important article in a developing democratic country like India. Democratic India is based on the four pillars of the constitution which are justice, liberty, equality and fraternity. The titles which were prevalent from the medieval India disturbs the structure of the democracy by creating artificial distinction in the society. So, there is a need to abolish the titles and uphold the concept of equality among the individuals. Authors note In free india everyone is equal. In Balaji Raghavan V. union of India the petetioners contented that national awards such as Bharat Ratna, Padma Bhushan, Padma Sri etc. were also titles under the article 18 of the Indian constitution so, they should be abolished. But the supreme court upheld the validity of national awads, the national awards are not violative of article 18 of the constitution. They are the appreciation for the excellence and the exceptional services provided by them.the national awards cannot be put as a prefix or suffix to the name of the individual. It is also to be noted that there is absolutely no penalty for infringement of the above prohibition of titles. Article 18 is merely directory article. However, it is on to the Parliament to make laws for dealing with such persons who accept a title in violation of the prohibition prescribed in the Article 18. No such law has been passed by the Parliament so far.19. Right to FreedomProtection of certain rights regarding freedom of speech etc(1) All citizens shall have the right(a) to freedom of speech and expression;(b) to assemble peaceably and without arms;(c) to form associations or unions;(d) to move freely throughout the territory of India;(e) to reside and settle in any part of the territory of India; and(f) omitted(g) to practice any profession, or to carry on any occupation, trade or business(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,(i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwiseMeaning Article 19 of the Indian constitution guarantees six freedoms to the citizens of India. They are: Right to 1. freedom of speech and expression 2. Peaceful assembly without arms.3. To form associations or unions 4. Move freely throught the territory of India5. Reside and settle in any part of the India6. Hold , dispose property (omitted)7. Practice any profession, or to carry on any occupation, trade or businessThe rights provided under this article are not absolute. as of now each freedom contains restrictions. The clauses 2 to 6 of the article provides reasonable restrictions to the six freedom of rights. There are total eight grounds on which the restrictions may impose:· The security of the State,· friendly relations with foreign States,· public order, · decency or morality, or· in relation to contempt of court, · defamation or · incitement to an offence· sovereignty and integrity of nation · in the interest of scheduled tribes Explanation Freedom of speech The freedom of speech which is the one of the freedom in article 19 provides right to express one’s opinion through oral, written, electronic, broad casting or press. Right to remain silent is also included in this right. Press has no specific reference in this article. Dr. B.R Ambedkar had said that the editors or managers of press and all the citizens of the country and when they chose to write in newspapers they are merely expressing their right of expression. Now a days blogs and websites are included to this list. This right may be restricted on eight grounds they are:· The security of the State,· friendly relations with foreign States,· public order, · decency or morality, or· in relation to contempt of court, · defamation or · incitement to an offenceFreedom of assemblyThe constitution guarantees right to hold meetings, demonstrations. The meetings associated should be peaceful and without arms. This right can be excercised only on public land. section 144 sub clause (6) of the Cr. PC can be imposed on the government in certain areas which makes the assembly of five or more people an unlawful assembly. It was challenged in supreme court in kamla kanth mishra &ors. V. state of Bihar &ors. The court upheld the validity of the section and held that this section is not violative of article 19 (1) (b). state can impose reasonable restrictions on grounds of interest of sovereignty and integrity of nation, or public order Freedom of association All the citizens have right to form associations, societies, clubs, organizations, trade unions etc. it does not include right to strike. the state can impose restrictions on grounds of interest of public order. Freedom of movementEvery citizen of the India has right to move freely from one state to another within the territory of the India. But the state can restrict the right on the ground of protection of tribal areas to protect the distinctive culture, language, morals, and tradition Supreme court held in smt. Kaushalya v. state, the freedom of the movement of the prostitute can be restricted on the ground of public health and public morals. Freedom of residence. Every citizen of the India has right to reside in the any part of the country temporarily or permanently with certain restrictions Freedom to trade, and occupation Constitution guarantees freedom to trade, occupation and business in any part of the country to earn livelihood with certain restrictions. Need and importanceRight to freedom in Indian constitution is one of the most important fundamental rights guaranteed under the constitution of India. These freedoms basically allows a person to do whatever he wants to do but with certain restrictions. Authors note It is logical that equal rights for all must mean limited rights for any. So, there are certain restrictions on the exercise of these rights. But this led to the criticism that Indian freedom is a myth, for what has been given to one hand has been taken from another. This criticism is clearly unfair . 20. Protection in respect of conviction for offences(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence(2) No person shall be prosecuted and punished for the same offence more than once(3) No person accused of any offence shall be compelled to be a witness against himselfMeaning It is one of the pillars of the fundamental rights guaranteed bu the constitution of India. It provides certain rights to safe guard the accused to allow fair trail. They are :Exposto facto law Immunity from double punishment Self incrimination Explanation Article 20(1) prohibiting ‘ex post facto law’ it is a latin expression "from a thing done afterward". An ex post facto law is one that declares someone's action to be criminal only after it was committed. Ex post facto law is against the rule of law which is the person subjected to only known and established law. For instance, According to Hindu marriage act, 1955 bigamy – an offence. It was offensive only when the law is established i.e. 1955.It means the law cannot punish the acts done prior to its existence. An individual cannot be punished retrospectively.Article 20(2) prohibits double jeopardy. The jeopardy means danger/harm/punishments, double jeopardy means double punishment. The constitution prohibits the multiple punishments and proceedings for a same mistake. It is likely to be taken from the U.S constitution. There is a maxim related to this - There is a law maxim related to this – nemo debet bis vexari. This means that no man shall be tried or punished twice for the same offence. Autrifois convict and Autrifois Aquit are the two maxims meaning previously convicted and previously aquited. A person cannot be punished for the offence that he has been previously convicted or aquited. This doctrine is against the double jeopardy. The subsequent trial and the conviction for other offence doesn’t come under the doctrine double jeopardy.20(3) of the Indian constitution prohibiting self incrimination. Self incrimination means exposing oneself by making a statement by means of duress. That no person accused of any offence shall be compelled to be a witness against himself. This is based on the legal maxim that accused is innocent until proven guilty it is the ideology of Indian penal code. The obligation of proving guilt lies on the prosecution. Need and importanceIndian constitution guarantees rights to the accused for fair trail. This article limits the legislative power. It is only applicable to criminal proceedings.
NOTES ON FUNDAMENTAL RIGHTS OF THE INDIAN CONSTITUTION PART 5
Article 24No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Meaning Article 24 prohibits child labour. It prohibits child labour in factories mine, any other hazardous employment. here child is the one who is below the age of 14 years. Explanation Article 24 prohibits child labor. The child here is the one who is below 14 years of age. The article prevent below 14 years of age child in a factory/mines/hazardous employment. Article 24 strengthens the article 39(f) (directive principles of state policy) the article 39 (f) secures that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. The employment of child act, 1938 is the first act to prevent child labor. ‘Construction work and projects were held equal to hazardous occupation’ by supreme court of India In people’s union for democratic rights v union of india (1982). In M.C Mehta v state of Tamil Nadu(1999). Supreme court directed that child should not be a employee in hazardous works, factories, and fire works. Need and importanceIndia is a signatory to the convention on child labour. Problem of child labour is a critical human and economic problem. Though and desirable one account of socio-economic compulsions. On account of poverty many parents send their children to work in order to supplement their income. There is a obvious special distinction between child labour and exploitation of child labour. According to the 43rd round of National Sample Survey(1987), the number of working children was estimated to be 17 million. The present figure is estimated to be around 20 million.It must be realised that a total ban on child labour may not be socially feasible in the socio-economic environment of the country. It is for this purpose that Article 24 puts only a partial ban on employment of child labour.24. Prohibition of employment of children in factories, etc No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment Provided that nothing in this sub clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause (b) of clause ( 7 ); or such person is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause ( 7 )Article 25 25. Freedom of conscience and free profession, practice and propagation of religion(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.Meaning Explanation This article upholds the spirit of secularism. The Article 25 states that every individual is “equally entitled to freedom of conscience” and has the right “to profess, practice and propagate religion” of one’s choice. According to Article 25, the gates of Hindu religious institutions should be opened to every section of Hindus. Here the term ‘Hindus’ also includes individuals who profess Sikh, Jain or Buddhist religion. The same holds true for the term ‘Hindu religious institutions. Article 25 is not absolute. The human activists and constitutional experts opinion that the article 25 diluting the imporatance of secularism that most Indians swear by. Their criticism is that Sikhs and jains and budhists were considered only as a sections of Hindu and not as an independent. Need and importanceIt is the most misinterpreted article of Indian constitution. Even though it guarantees the freedom to follow and to propagate it yet this freedom comes with a responsibility to ensure that the public order, morality and health are not compromised in the process. The human activists and constitutional experts opinion that the article 25 diluting the imporatance of secularism that most Indians swear by. Their criticism is that Sikhs and jains and budhists were considered only as a sections of Hindu and not as an independent. India being a secular country doesn’t have any state religion. Even though in india there is hindu majority the constitution of india guarantees freedom to propagate and practice religion.
NOTES ON FUNDAMENTAL RIGHTS OF THE INDIAN CONSTITUTION PART 6
Article 27- Indian Constitution Freedom as to payment of taxes for promotion of any particular religion- no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. Meaning: This article emphasizes the secular character of the state. In general this article provides protection in respect of payment of taxes, if such amount is appropriated for the promotion or maintenance of any particular religion. Reason behind providing such provision is that India is the secular country. Secular means state has no its own religion or identity and state should treat every religion equally. Therefore when a person wants to dispose of any of his amount to any religious institution for the promotion or maintenance of such religion then such amount shall be exclude from being charged by tax.Explanation:Tax and Fees:- One question may be arise regarding the fees, that whether fees payment in respect of any religion for the promotion and maintenance of that religion, would be exclude from being charged or not. The answer has been given by the Supreme Court in Rati Lal V. State of Bombay[1] and defined tax as a common burden and the only return which the tax payer gets is a participation in the common benefits of the state, fees as the payments primarily in public interest but for some special service rendered or some special work done for the benefits of those from whom the payments are demanded. In determining whether a levy is a fee, the true test must be whether its primary and essential purpose is to render specific services to a specified area or class.In Sri Jagannath V. State of Orissa[2] Supreme Court held that the levy under the Orissa Hindu Religious Endowments Act, 1939 was in the nature of fee and not tax. The payment was demanded only for the purpose of meeting the expenses of the commissioner and his office which was the machinery set up for due administration of affairs of the religious institution.Exception:- General rule under article 27 is that no person shall be compelled to pay any tax for any amount which is or has been utilized for the promotion and maintenance of any particular religion, also state is under obligation not to give any aid to any particular religion as it is a secular country which has no religion.The article 27 will not be applicable when state would start giving aid to all religious institution along with the secular and without any discrimination. In the present context we may say that the Government is trying to promote a particular religion for the vote bank but not really. They are doing drama in the name of promoting particular religion and playing with the common people for the purpose of vote bank. Some latest examples are the Rajasthan Chief Minister’s 40 days Gaurav Yatra throughout the area of Rajasthan, recent rejection of appeal for permission of Rath Yatra in North Bengal (WB) by the Supreme Court on 15th Jan 2019. Need and Importance of the Article: As India is secular country it has no its own religion and identity, therefore it should not promote any particular religion but if promote then it should promote all religion equally, that means it must treat all religion equally or in one eye. Therefore this Article is playing important role in maintaining the secular character of our country, country like India needs such provisions.Suggestions: In my opinion Article is itself clear and such provision is necessary for the secular country like India. I think Political parties should strictly follow this article they should not forget that they are the representatives of a secular country and don’t violate such provision, I have gave two example and explain how they play with us only for vote bank in the name of religion. When they are not allow to promote religion then why they doing such things and why we the people remained silent, I think we have to arose up now and understand. Article 28- Indian Constitution Freedom as to attendance at religious instruction or religious worship in certain educational institutions- (1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds.(2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.(3) No person attending any educational institution recognized by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.Meaning: This Article contains three clauses and first clause provided for general rule that any kind of religious instruction cannot be provided in any state funded educational institutions. Second clause provided for an exception to the clause and said that in the educational institution funded by trust or endowment religious instruction can be given. Third clause provided for the protection to person who attending any educational institution which administered by state or funded by state that such person shall not be compelled to take part in any religious instruction or in any religious worship unless such person given his consent.Explanation:After reading the article 28 we may find that there are four types of educational institutions mentioned such as I. Institutions wholly maintained by the state. II. Institution recognized by the state. III. Institutions that are receiving aid out of the state fund. IV. Institutions that are administered by the state but are established under any trust or endowment.In 1st type of institutions no religious instructions can be imparted. In 2nd and 3rd type of institutions religious instructions may be imparted only with the consent of the individuals. In the 4th type of institution, there is no restriction on religious instructions.Though article itself is clear regarding religious instructions but still various questions arose in various times regarding the religious instructions. Such as provision for the study and research on the life and teaching of Guru Nanak of section 4 of the Guru Nanak University Act was challenged in D.A.V. College, Jullundhar V. State of Punjab[3] on the ground that it was violation of article 28, which prohibited religious instruction in state, aided educational institutions. Court rejected the contention and held that section 4 which enjoined the university to encourage an academic study of the life and teaching of Guru Nanak does not amount to religious instructions or promotion of any particular religion and therefore constitutionally valid.The validity of National Curriculum Framework for School Education, 2000 (NCFSE) challenged in Aruna Roy V. Union of India[4] which provided for education for value development based upon all religions and also a comparative study of philosophy of all religions was challenged on the ground that it was violative of article 28 of the constitution. Court rejected the contention and held that the National Curriculum Framework for School Education is neither violative of article 28 of the constitution nor it is against the concept of secularism. Court further held that the entire emphasis of article 28 of the constitution is against imparting religious instructions or of performing religious worship. It does not prohibit study of religion’s philosophy and culture particularly for having value based social life in a society degenerating for power, post or property.Need and Importance: This Article also important and we as the secular country we need such provisions. It play important role in maintaining secular character of the country in the educational institutions by making restriction on giving religious instructions in state funded educational institutions. So this Article play important role and we as the secular country need such Article. Suggestions: I must suggest that which has been provided in the Article strictly followed by the state and educational institutions to maintain the secular character of our country. Otherwise it will convert into a country with particular religion. Article 29- Indian Constitution Protection of interests of minorities-(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.Meaning: Article 29 contains two clauses, first clause provide for the right to conserve one’s distinct language, culture or script, second clause provide for general rule that no person shall be denied to admission in any educational institutions maintained by states or funded by states on the ground of religion, race, caste, language or any of them. Explanations: Article 29(1) provided right to conserve one’s distinct language, script or culture residing in the territory of India. It means a person can be distinct on the basis of his language, script, or culture and such person can claim right under this article, and he has right to conserve and preserve his such distinct character. For example in India Punjabi speaking people are distinct from other states like Uttar Pradesh, Bihar, Madhya Pradesh, Jharkhand, therefore Punjabi speaking people have right under this article. Article 29 clause (2) provides that every citizen has right to take admission in any educational institution maintained by the state or receiving aid out of the state fund on grounds only of religion, race, caste, language or any of them, and they cannot deny any citizen. Article 29 only protect the interests of the minorities whether based on language, script or culture, and article 30 provide for the right to establish and administer educational institutions of their own to promote their own society or their community.Generality of Article 29(2): Article 29(2) is general in nature as it starts with No Citizen, it means this Article is applicable to all irrespective of minority or majority groups. Therefore school run by a majority, if it is aided by the state funds, cannot refuse admission to boys belonging to other communities. The state cannot direct such school to restrict admission to their own community.An order of Madras Government was challenged in State of Madras V. Champakam Dorairajam[5] on the ground that it denied admission to a person only on the ground of religion or caste, which had fixed the proportion of students of each community that could be admitted into the state Medical and Engineering Colleges. The petitioners in this case were denied admission only because they were Brahmins. Supreme Court held that the order was invalid for being violative of Article 29(2).Rights of Minorities: India is a secular is a secular country where hundreds of religious and linguistic minorities live together for centuries together and have inherited common heritage, language, and traditions and accordingly share a common culture. But every religious denomination has a fundamental right to preserve and protect their distinct cultural attributes like religion, language, rites, rituals etc. 1. To Establish and Maintain Educational Institutions: The most vital right guaranteed to a religious or linguistic minority is the right to establish and maintain educational institution for preserving their community interests. 2. Cultural Rights: Art. 29 and 30 provide for minority rights, which also include educational and cultural rights. Clause (1) of Art. 29 give protection to every section of the citizens having distinct language, script or culture by guarantying their right to conserve the same. A minority community can preserve its language, script or culture by and through educational institutions, which is guaranteed under Art. 30 of the Constitution.The inter-relation between Art. 29(1) and Art. 30 (1) was elaborately examined by the apex court in the case of St. Xavier’s College V. State of Gujarat[6] and held that while as the right guaranteed in the former wider in scope, as it applies to all section of the society who want to conserve their culture, as against this the later provision deal with minority’s right to education.In State of Bombay V. Bombay Educational Society[7] Supreme Court struck down an order of the Bombay Government banning admission of those whose language was not English into schools having English as the medium of instruction because it denied admission solely on the ground of language. The order, the court said, would not be valid, even if the object for making it was the promotion or advancement of national language.In Ramesh Chandra V. Principal B.B.I. College[8] Court held that the protection of Art. 29(2) do not apply where the student is expelled from an institution on ground of indiscipline. This Art. Also not applicable where the student is refused admission on grounds of his not possessing requisite qualifications.[9]Need and Importance: This Article play very important role in protecting rights and interests of minorities. India is consist of the people of various languages, religions, cultures etc. so existence of minority on the basis language, religion etc. are common therefore such provision play important role in protecting the rights of minority. Therefore we as the secular country need such provision.Suggestions: I must suggest that Articles 29 and 30 which protect the interest of minorities should be strictly applied or implemented, it should not be misused in the name of the vote bank. Many time various political parties in the name of giving benefits to the minorities play with minority but that is not fair implementation, fair implementation must be there. [1] AIR 1954 SC 388[2] AIR 1954 SC 400[3] AIR 1971 SC 1737[4] AIR 2002 SC 3176[5] AIR 1951 SC 226[6] AIR 1974 SC 1389[7] AIR 1954 SC 561[8] AIR 1953 All 90[9] Nageshwara Rao V. Principal, Medical College, AIR 1962 AP 212
NOTES ON FUNDAMENTAL RIGHTS OF THE INDIAN CONSTITUTION PART 7
Article 33: Power of Parliament to modify the rights conferred by this Part in their application etc.-Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,-(a) the members of the Armed Forces; or(b) the members of the Forces charged with the maintenance of public order; or(c) persons employed in any bureau or other organization established by the State for purposes of intelligence or counter intelligence; or(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organization referred to in clauses(a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.Meaning:The Article 33 of the Indian Constitution empowers or gives the power to the Parliament to make laws through which they can modify, restrict or abrogate the fundamental rights of the members of the Armed Forces or the members charged with the maintenance of public order in order to discharge their duties properly.Explanation:The members of the Armed forces, forces charged with the maintenance of public order, certain persons employed by the state etc., are employed for some special purposes and their main aim is to serve the country and its citizen in one way or other. Thus, they cannot have or be entitled to the same and equal fundamental rights as given to the other citizens of the country. Hence, the Parliament is empowered to make certain amends or modifications to their entitlement of fundamental rights. The Parliament exercises this power to ensure that the said persons in the article can properly discharge their respective duties. This article also says that the Parliament by law, can also determine the extent to which the said persons are entitled to the fundamental rights.However, this article in itself does not restrict the application of the fundamental rights of the said persons, which means that the laws must be made exclusively for the same. Need and importance:The main aim of the article is to ensure that the officials mentioned in the article such as the Armed forces, police officials, employees of the organizations established by the state etc., discharge their respective duties and maintain the discipline of their position properly as the proper discharge of their duties is very crucial and important for the country and maintenance of the public order.Since that is the case, certain fundamental rights cannot be given to them as it would interfere with or hinder the proper discharge of their respective duties. For instance, if an army officer wants to exercise his right to freedom in a particular manner, under article 19 of the Indian constitution, he would not be able to serve the country properly and his exercise of this right would go against his duties as an army officer.Hence, this article is very much important as it provides exemption of the said persons, who are duty bound to maintain law and public order, from the entitlement or application of certain fundamental rights in order to discharge their respective duties properly and without any hinderance.Article 34: Restriction on rights conferred by this Part while martial law is in force in any area.-Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area. Meaning:The Article 34 of the Indian Constitution indemnifies any person in the service of the Union or any State for the acts done by him, in order to discharge his duties properly or to obey the orders given to him as per the requirement and in accordance with his duties conferred upon him by the law, in any particular area within the Indian territory during the time when the martial law is in force in that particular area.Explanation:Here, the word “indemnify” means that the said person will not be punished for the acts done by him during the enforcement of the martial law. His acts may include any sentence passed by him, punishment inflicted by him upon any other person, anything forfeited by him or any other act provided that it was done in order to maintain the law and order.Here, the enforcement of the martial law in any area means any situation which normally would not occur but has occurred due to any foreseen or unforeseen contingency which leads to the suspension of the ordinary law and imposition of the military rule such as state of emergency or crisis, curfew, any major disaster in that particular area etc.However, the article itself does not exempt or give indemnity to the said persons, the indemnity has to be given by the Parliament exclusively by making the required laws for the same.Need and importance:The main aim of this article is to indemnify the persons in the service of the union or any state for the acts done by them in order to maintain law and order when the martial law in force, provided that, such indemnity is given by the Parliament. This indemnity, provided under this article, is very much necessary as there are certain acts which the said persons have to perform during any particular contingency and if not performed, may hinder the maintenance of the law and order. In such situations it is impossible, rather very difficult, for them to think whether the act is rational or irrational, or in accordance with the ordinary law in that area or not. For instance, an official may kill or take into custody any person on suspicion during curfew in order to maintain the public order. Now, even if that person is innocent, the official did that being duty bound by the law and just to maintain the public order and peace, and hence needs indemnity by the law for his act.Hence, it is very essential to provide certain indemnities to the said persons in the article, in order to discharge their duties properly and maintain the law and order, provided that, such indemnities have been given to them by the Parliament exclusively.Article 35: Legislation to give effect to the provisions of this Part.- Notwithstanding anything in this Constitution,-(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws-(i) with respect to any of the matters which under clause (3) of Article 16, clause (3) of Article 32, Article 33 and Article 34 may be provided for by law made by Parliament; and(ii) for prescribing punishment for those acts which are declared to be offences under this Part; and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii);(b) any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters referred to in sub-clause(i) of clause (a) or providing for punishment for any act referred to in sub-clause(ii) of that clause shall, subject to the terms there of and to any adaptations and modifications that may be made therein under Article 372, continue in force until altered or repealed or amended by Parliament.Explanation.- In this article, the expression "law in force" has the same meaning as in Article 372. Meaning:The Article 35 of the Indian Constitution says that the power to make laws with respect to certain fundamental rights shall vest with the Parliament only and not with the Legislature of any State.Explanation:Clause (a)(i) of the article lists down certain articles with respect to which the parliament shall have the power to make laws and it restricts the power of any State legislature to make laws on the same matters.Those articles with respect to which only the Parliament has the power to make laws are: (i) article 16(3), which empowers the Parliament to make laws prescribing the residence as a requirement for equal opportunity for public employment or appointment, for eg., Domicile of a particular state gets employment based on his domicile certificate; (ii) article 32(3), which empowers the Parliament to make laws in order to empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court to issue writs under article 32(2) of the Indian Constitution;(iii) article 33, which empowers the Parliament to make laws in order to modify fundamental rights of certain people and; (iv) article 34 which empowers the Parliament to indemnify certain persons for their acts during the enforcement of the Martial law.Clause (a)(ii) of the article says that the power to make laws in order to punish for the violation of certain fundamental rights, for e.g., practicing untouchability, human trafficking and forced labour under article 23 etc., shall vest with the Parliament and not with any State Legislature. The Parliament may exercise this power after the commencement of the Indian Constitution.Clause (b) of the article says that any law before the commencement of the Indian Constitution will continue to be in force unless it has been repealed, altered or modified or amended by the Parliament. In other words, it simply means that this article empowers the Parliament to make laws in order to amend, alter or modify the old laws which were into the force before the commencement of this Constitution. Hence, it can be said that the article 35 of the Indian Constitution empowers the Parliament to make laws with respect to certain fundamental rights even if the matters fall into the State list.Explanation attached:The explanation attached to this article says that the expression "law in force" has the same meaning as in the Article 372 of the Indian ConstitutionNeed and Importance:The Parliament is empowered to make laws regarding the application and violation of certain fundamental rights and this empowerment restricts any State legislature to make laws on the same matters. This empowerment of the Parliament and restriction on the law making power of the State legislatures is very much essential as different State Legislatures would like to make and implement different laws for their respective states regarding the application and violation of the fundamental rights. This may lead to instability and hinderance in the smooth functioning of the States and the Country as a whole. Empowering the Parliament to make laws on such matters brings uniformity and stability, leads to smooth functioning of the country and further upholds the interests of the citizens equally and uniformly.Hence, this article is very much needed and is an important part of the Indian Constitution.
LANDMARK JUDGEMENTS OF THE INDIAN CONSTITUTION
The below attachment contains the landmark judgements of the fundamental rights of the Indian constitution. from facts to judgements.
LANDMARK JUDGEMENTS OF THE INDIAN CONSTITUTION
The below attachment contains the landmark judgements of the fundamental rights of the Indian constitution. from facts to JUDGEMENTS
Introduction to Constitution Of India
This file gives the basic knowledge and introduction of Constitution of India.
Abhinav Purohit
Constitutiopn Of India
This is the best and easiest way to learn about the constitution of India.
Key Features of Indian Constitution
Following are the important features of the Indian Constitution −Indian Constitution is a ‘written’ constitution.Indian Constitution is ‘flexible’ (it can be amended), but it is also ‘rigid’ (as some part, i.e., its ‘basic structure’ cannot be amended).Indian Constitution is ‘Unitary’ (as Center has more power), but it is also ‘Federal’ (as power is divided between the Center and the State).The Indian National Congress made a demand for a Constituent Assembly in 1934, which came into existence for drafting the constitution of India on 9 December 1946.The Constituent Assembly drafted the Constitution for independent India between 9 December 1946 and 26 November 1949.We, the people of India, have adopted and enacted the Indian Constitution on 26 November 1949; however, it was made fully functional on 26 January 1950.Constitution is a fundamental set of rules and principles on the basis of which the people of this country obliged to be governed by.The fundamental rules of Constitution define the type of government and its constituent’s parts as well as the nature of the policies to be adopted by the country.So, the Constitution serves as a pivot in striking a balance between the differences and provides safeguards to the interests of each of its citizen.Likewise, the Constitution of India makes India a democratic country and determines −the procedures of government formation;the methods and process of government’s functionality; andthe process of interactions among the different parts of the government in the specific area of their work.In addition, the Constitution also defines a list of Fundamental Rights that are an important part of the Constitution to protect the interest of every citizen against the tyranny of the state as well as from the dominance of a particular community (Who are in majority and in power).The Constitution is the supreme law of the land and the source of all the powers and authority of the government and its organs. Likewise, the government not only derives its origins from the Constitution, but discharges its functions and responsibilities within the framework of the Constitution.
Pretha Biswas
Guiding Values of the Indian Constitution
The important values of Indian constitutions are depicted in the following illustration −LibertyThe Constitution provides every citizen a number of liberties and freedoms under Article 19 to 21, 21A, and 22. It is established that no unreasonable restrictions can be imposed upon citizens to regulate their freedom.Right to Freedom under Article 19 includes −The right to freedom of speech and expression;The right to form association;The right to move freely;Reside in any part of the country; andThe right to practice any profession, occupation, or business.EqualityThe Constitution states that all citizens are equal before the law and the government should ensure that the traditional practice of social inequalities on the grounds of caste, religion, and gender has to be ended.Right to Equality is enshrined under Articles 14 to 18 of the Indian Constitution of India, which guarantees the right to equality to all persons and prohibits any kind of discrimination against any citizen on any of the grounds of religion, race, caste, gender, and place of birth.Article 14 provides that all persons are equal before the law. This means that all persons shall be equally protected by the laws of the country.Article 15 states that no citizen can be discriminated against on the basis of his/her religion, race, caste, sex, or place of birth.Article 16 states that the State cannot discriminate against anyone in matters of employment.Article 17 abolishes the practice of untouchability from India. It provides that every person has access to all public places including playgrounds, hotels, shops, etc.Right against Exploitation is enshrined under Article 23 to 24 of the Constitution of India. It provides fundamental right against exploitation to every citizen of India.Article 23 of the Constitution provides for prohibition of any kind of forced labor and any violation of this provision shall be an offence punishable in accordance with the law.Article 24 protects the children by stating that no child below the age of 14 shall be employed to work in any factory or mines or any other hazardous employment.FraternityAll the Indians are members of a family, no one is inferior or superior, all are equal and have same rights and duties.SovereigntyThe government of India is free to take any decision on internal as well as external matters and no external power can dictate it.SocialistIn a socialist country, citizens have the right to property but the government should regulate it by law, the socio-economic activities to reduce inequalities in the society and hence, every citizen has equal right to share the resources of the country.The concept of social justice was adopted by the 42nd amendment of Constitution that enables courts to uphold provisions to remove economic inequalities in our society.SecularIndia is a secular country. There is no official religion of the government and the government treats all the religions equally.Articles 25 to 28 provide ‘Right to freedom of Religion’ for every citizen. This is a Fundamental Right that allows every individual a freedom to live by their religious beliefs and practices as they interpret these beliefs.Cultural and Educational Rights (Article 29 to 30) state that all minorities, religious or linguistic, having a distinct language, script or culture of its own, (they) can set up their own educational institutions in order to preserve and develop their language, script, or culture.DemocraticThe democratic system of government runs according to some basic principles, which are collectively called as ‘Rule of Law.’In a democratic form of the government, the people of the country enjoy equal political rights, choose to elect and change their representatives, and hold them accountable.PreambleThe Indian democracy is founded on those values that had inspired and guided the freedom struggle.The Indian Constitution embedded the values in its Preamble. Therefore the Preamble emanates lights that glitter all the articles of the Indian Constitution.The Preamble provides a short introductory statement of the basic values of the constitution to start with. In other words, it is the ‘Soul of the Constitution.’It is the preamble that provides a standard to examine and evaluate any law and action of the government to judge its validity and sanctity.