1. Indian Constitution, Historic Underpinnings, Evolution, Features, Amendments, Significant Provisions And Basic Structure Flashcards
What is constitution? And what are its functions?
Constitution is a basic rule book of nation that codifies the rule of laws.
Functions
- Expression of ideology
- establishes rule of law
- Organisational framework
- level of government
Soviet Union is more ideology and less organisational set up
Usa is opposite to it
What is constitutionalism?? And features in India ??
Constitutionalism is the philosophy behind constitution which limits the power of the government and puts checks and balances on the government.
Features in India ?
- Written from of constition
- Rule of law
- Separation of power
- Federalism i.e level of government
- Basic structure
- Independence of judiciary
2 case laws
- Rameshwar Prasad vs UOI
- I.R. Coehlo vs sate of TN
GOI ACT 1935?
Simon commission was appointed to look in to the matter of constitional reforms in India which came out with a report —-> to discuss that 3 ROUND TABLE CONFERENCES were held which came out with WHITE PAPER——>then it went to British parliamentary committee ——> they came out with GOI act 1935
Features of GOI act 1935?
Features
- Established and Indian federation , having federal list, provincial list, concurrent list, residuary list with the viceroy.
- Abolished dyarchy in provinces and got PROVINCIAL AUTONOMY, where the governor was to act on the advice of ministers.
- Got dyarchy in federal level as the subjects were divided in to reserved and transferred subjects
- bicameral legislature at the provinces
- Secretary of the state was not to interfere in the Indian affairs
- Federal court was established
- Separation of Burma and Aden from India
- RBI was established
- Extended the franchise to 10% Indians of total population
Critical analysis of GOI act 1935?
- The princely states refused to join the federation
- Governor was allowed the discretionary powers
- The viceroy and crown had veto powers
- The bills to be introduced in the legislature needed prior sanctions
- Viceroy could promulgate ordinance
- Instrument of instruction issued the reserved subject.
Constituent assembly genesis ??
Constituent assembly was envisioned indirectly in Swaraj of 1906
Congress pass a resolution that the country should be governed by Indians this was directly pointing to need of constituent assembly in 1936
1946 Clement Attlee accepted the demand for constituent assembly
In 1946 dec 6 constituent assembly sat for the first time
It was an indirect elected from provinces and also had nominated members
J Nehru passed objective resolution. What was it ?
It was meant to give the ideology and philosophy on which the constitution was to be made
It stated India was to be a independent sovereign republic
Guaranteeing people of India justice, social political and economical
Freedom of thought, expression, belief, faith, worship
Equality of opportunity & status
Adequate protection for the tribals areas
India as an ancient land attains its rightful and honoured place in the world and it shall make full contribution and promotion of world peace and the welfare of mankind
Criticism of constituent assembly ?
- Was not a elected body and did not reperesent the whole India
- Not a sovereign body
- Dominion of congress
- Lawyers paradise
Salient features
- Lengenthiest written constitution
- Blend of flexibility and rigidity
- Democratic republic
- parliamentary form of government
- mixture of unitary and federal features
- Fundamental rights
- DPSP
- secular state
- single citizenship
- Universal adult franchise
- Separation of powers
- Independent bodies
- Three tier government
Amending to constitution?
Article 368 empowers the parliament to amend the constitution
It can be done by.
Simple majority. Special majority(SM). SM+ state ractification
Changes in constitution ? Basic structure doctrine ?
The changes in the constitution can be made by amendment and judicial interpretation
In shanakari Prasad case of 1951
The Supreme Court upheld the validity for he 1st CAA act of 1951 stating that the parliament has the power to amend the constitution and article 13 the law means the articles of fundamental rights
Then came the golakhnath case of 1967 where the Supreme Court stated the fundamental right to be transcendent and immutable and cannot be changed by constitutional amendment
So the government passed the 24th CAA 1971 where the parliament had the power to take away or abridge the fundamental rights under article 368
The was questioned in keshvananda Bharti case 1973 where the validity of the 24th CAA act was upheld and the supreme court stated that the parliament can amend everything but it cannot amend the basic structure of the constitution which is the integral part of the constitution.
The government brought the 42nd CAA act 1976 where it made the amendments out of the judicial review
The case of Minerva mills 1980 the Supreme Court stated that the parliament cannot take away judicial review as it is the basic structure of the constitution.
Stating the parliament has been granted a limited power to amend the constitution and by amending the constitution it cannot get itself absolute power.
Again in Waman Rao case 1981 the Supreme Court adhered to the doctrine of basic structure and further clarified that it would apply to constitutional amendments enacted after keshavnand Bharti case of 1973
Other cases of basic structure
Supremacy of the constitution as basic structure in Keshavananda Bharti case
Sovereignty, democracy , republican structure in kihoto hollohan case i.e the defection case
Citizenship law book on citizenship by?
Romila thapar -
1st constitution does not define who is a citizen
how a slave is made to a citizen
It is the relationship between the individual with the state that he she may belong.
This relationship is made binding through a contract between the citizens and state a document known as constitution.
N.Ram the debate in the constituent assembly over citizenship did not envisage a citizenship based on religion
Refugee vs asylum seeker ??
Refugee is a person who flee his own own country and live in the other country without any approval of the country
Aslyum seeker is a person who flees his own country seeking sanctuary in the other county Which if approved is a asylum seeker
India has not signed the UN convention on refugees of 1951 and neither its protocol of 1967.
India does not have a structured policy on refugees
India deals with refugees with two acts
Foreigners act 1946
Citizenship act 1955
Pros and challenges of having a policy for refugees?
Pro
If India has policy on refugees it would
1. Reduce time in dealing with the the issues
2. It would create a good will in UN for permenant seat
3. I would be in line with the India’s efforts of peace keeping forces
4.it will help international say while dealing with refugee efforts
5. It will support humanitarian cause like in Baluchistan and deal with Pakistan strategically
Challenges
- India’s porous borders will be a big drawback in dealing with refugees- putting strain on resources in the area
- This may crop up human trafficking and drugs issues
- Putting additional burden on the administration
The recent citizenship amendment act 2019 is in line with stream lining refugee policy of India.
Citizen amendment act 2019
The illegal migrants from Afghanistan, Pakistan, Bangladesh having Hindu, Sikh, Jain, Buddhist, Christian, Parsi as their religion entered in India before 31st December 2014 not living in the tribal areas on Meghalaya Assam Tripura will not be illegal migrants.
Illegal migrants are defined in the citizenship act 1955 section 2(1) (b) as
a. migrants who have entered India without documents
b. Foreigners who have stayed beyond the time they were granted a stay.
Citizenship act 2003 stats that the illegal migrants cannot acquire citizenship through naturalisation or registration
Pro
- Pact between nehru and liaquat that they would provide safeguards to religiously persecuted minorities
- States of Afghanistan, pak, Bangladesh, have state religions
- As earlier there were agitations related to illegal migrants , eg Assam
- this would differentiate between religious persecution and illegal migrants.
Cons
1. The classification is not scientific as it does not establish persecution and religion as it just states the religions from a few states and leaves out other minorities that are persecuted eg srilanka a Buddhist state atrocities on Tamil Eelams
2. Classification does not differentiate between religious or political persecution.
3.segregation based on date of entry as it would be the date after that persecution will stop
4. Implication of international relations as the people left out of the act would need to be deported
As we have a huge Bangladeshi migrants which would need to be deported And also states that Hindus are persecuted in Bangladesh
5. India is a secular country and classification based on religion would question it in international arena.
This is in line with the refugee policy but it needs to be based on scientific classification and on principles of equality which india should give shelter to the persecuted minority of all states which would improve India’s image in international arena.
NRC
National register of citizens
It is an registration of persons that are citizens of the nation and it is done to differentiate the illegal migrants from citizens.
Under section 14 of citizenship act 2003 it states that the government can have compulsory registration of citizens and issue national identity card.
Recently the national government has stated that it may carry a nation wide NRC.
Pros
- It will segregate citizens from illegal migrants
- It will give the government the total of illegal migrants that the census and Aadhar has not done
- It will give a chance to issue an national identity card which will help in future
- It will also help in dealing with illegal migrants in an better manner
- India will have a data to get into agreements with neighbouring countries.
Cons
1. It may leave out a large chunk of population that is with out documents.
2. The illegal migrants what is to be done with them is still not decided
Which has lead to a fear amongs the minority.
3.we do not have any policy which is for migrants
4. We do not have any agreements with neighbouring countries to accept their citizens.
5. This may highten the communal conflict, putting strain on the fabric of country
6. This may lead to security issues lone wolf cells involvement of migrants into terrorist activities
7. Exploitation of minorities which may push them in human trafficking, drugs and prostitution.
Way forward
India need to have a comprehensive approach which will focus on border management, surveillance on borders, diplomatic agreements with neighbouring countries.
Synchronising census with NRC and NRP which would reduce the burden on admistration
Setting of cutoff date of 2 generations for NRC registration.
Maximising the use of digital lockers.
NPR
National population registration
Means the government would register a person living in an area for more that 6 months or intending to stay in an area for more that. Months .
This was recommended by group of ministers after the Kargil war, to carry out nation wide npr and to issue the citizens a multipurpose identity card
Pros
- India can get a streamlined data about its population
- It will help in targeting subsidies and better utilisations of resources
- It will also help in implementing one nation one ration card and pds distribution
- It will be easy to understand the flow of migration in the country and focus on development of the areas which are having heavy migration to cities
Cons
- It will infringe privacy
- Put extra burden on administration as duplication of efforts Aadhar, nrc, census
- Can be misused, by hacking, to implement vote based politics
- similar issues to NRC.
Way forward
It is very much necessary to combine all the efforts into one and issue only a single identity card for target oriented subsidies.
Preamble ??
We the people of india having solemnly resolved to constitute india into a sovereign, socialist, secular, democratic, republic and to secure all its citizens:
Justice - social, economical, political
Liberty - of thought, expression, belief, faith,worship;
Equality of status and opportunity and to promote among them all
Fraternity - assuring the dignity of individual and unity and integrity of the nation
In our constituent assembly this 26th day of November 1949, do here by adopt , enact and give ourselves this constitution.
Preamble serves 3 objectives?
- It states that the constitution derives its power from the people of india
- It sets out the objectives and philosophy and the type of government the people want to achieve
- It declares india to be sovereign socialist and secular democratic republic.
Sovereign
India is a sovereign that means it is ruled by the people of the country and not by an exterior entity, meaning it is independent and a non dependent state, it can create relations with other country or severe relations with anyone meaning it is free to conduct it own affairs
Socialist
Indian brand of socialism is a democratic brand of socialism and not communist brand of socialism meaning an indivisual can hold private property/ land as india is an Agrarian country its citizens are dependent on the land and it becomes important for them to achieve the goals and prosper in life.
It is blend of Marxism and Gandhism.
Secular
India is a country with positive secularism that it recognises all the religions that exist in India and keeps them at equal distance,
The word secularism was added in 42nd CAA 1976
It guarantees all its citizen the freedom of religion and also promises that it wont interfere in there religions beliefs. From article 25 to 28
It is in line with the Indian philosophy of SARVA DHARMA SAMABHAV
Meaning the destiny of all the religions is the same even if the paths are different.
Case S R Bommai 1994 stating that secularism is part of basic structure
Aruna Roy case the word secularism in Indian context is to develop understanding and respecting all the religions.
Democracy
India is an parliamentary democracy meaning that the head of the government is an elected person and the power he derives is from the people of india. There are 4 types of direct democracies referendum, initiative, recall, plebiscite
India follows indirect representation where the representatives of the people make decisions for the people
India has representative parliamentary democracy where the executive is responsible to the legislature.
Republic
There are 2 types of countries one which has an elected representative of the state and other has a monarch
India has a elected representative of state
It also means that that the power of the republic emanates from the people of the country
It also means that the citizen of the nation is eligible to hold a public office without any discrimination.
Justice
Justice social economical and political
Social means that every person will be equal and will not be discriminated based on his caste, religion, colour, race, religion, etc
Meaning absence of privileged class
Economical meaning no one will be discriminated based on his economical standing in the wealth, property etc
Political meaning that every person has the right to vote, he will have the right to part take in political voices of the country , equal access to political offices
Liberty
Means absence of restraints on the activities of indivisual
Liberty of thought expression belief faith and religion
Equality
Equality of status and opportunity
Meaning that every person will have the right to access the basic means to reach and achieve his aspirations in life
Article 14 15 16 17 18
Fraternity
Fraternity means brotherhood which is important of the self development of an indivisual which is recognised by the word dignity
Unity and integrity of the country meaning that psychological and territorial dimensions are included in the constitution article 1 to 4
Case laws
Berubari case where the Supreme Court held that preamble is the key to the minds of the framers of the constitution.
Article 12
The article 12 defines state for the constitution and part III of the constitution to be:
- The government and the parliament of India
- State government and the state legislature
- Local authorities with in the territory of india
- all local and other authorities under the control of GOI
Authorities means any entity that has power to make laws, give orders, frame regulations, by laws, notification etc. which has the force of law and power to enforce them.
With the changing nature of the economy at the time of independence the government ventured into sectors that no private player was ready to go in , so the question arose as to what is state and what is not state.
Rajastan electricity board vs Mohan lal 1967
All the authorities created under constitution or stature are under article 12 even if they do not perform sovereign function
Ramana Daya ram Shetty vs the International Airport authority of india 1979
The test was given:
1. Funding mainly by goi
2. Persuasive state control
3. Functions and character are of public character
4. If a dept of government is transferred to corporates
5. Monopoly status which the state conferred or state protected.
Article 13
Laws that are inconsistent with the part III of the constitution are to be declared void
This article empowers the Supreme court and high court with the powers of judicial review , which are made in the past that is before independence and which are made very recently
Meaning this articles one hand is in the pre constitution era and one hand is in post constitution era , empowering high court and supreme court
Doctrine of severability when a law is made the law may have some provisions that are unconstitutional and the courts use this to separate the the unconstitutional from the constitutional so the rest of the law is useful to the society.
Exception is that where the law which is so intermixed that it cannot be separated or it is in salvageable then such law will be declared unconstitutional in it entirety.
Doctrine of eclipse
The doctrine of eclipse means that laws which are inconsistent with the part III of constitution after it came in force shall remain in morbid condition or dormant condition.
This is made to deal with the cases or transactions that have happened before the constititution came in to force
Doctrine of wavier
It is an American concept where a person waives of his fundamental rights.
This is not the case in india as the citizens are not well educated to understand their rights and economically poor and not politically conscious of their rights in such circumstances it becomes the duty of the state and courts to defend him so justice is not denied to him.
Doctrine of lifting veil
The Supreme Court has been empowered to look into the real objectives of the law from the veil of words it has been hidden with.
This is done to stop the legislative from making a law which is unconstitutional in the shadows of some other law.
Article 14
Indian constitution provides for equality before the law and equal protection of law
EBL is a British concept and negative in nature
It state that 1. no one is to have special privileges
2. Everyone is equal before the law
3. No one is above the law
EPL is a American concept and positive in nature
- It states that people should be treated equally who are placed equally
- People in similar application of the same law who are similarly situated.
- The like should be treated alike without any discrimination
EPL empowers the government to make laws for the betterment of the backward, downtrodden, poor to bring them on equal footing to the well off.
What is class legislation? And what is reasonable classification?
Class legislation mean that a law which is made for the betterment of a class being arbitrary, so when the one that are getting the privileges and one that are categorically kept out of it have no reasonable distinction or substantial difference making the law arbitrary
Reasonable classification
India being a developing country it faces a lot of harsh realities such as poverty, hunger, malnutrition, lack of excess to opportunities etc. so it becomes necessary for the state to make legislation that would help the poor and downtrodden to have access to a better life.
Test of reasonable classification
A classification is based or founded on “intelligent diffferentia “ which distinguishes the group based on the factor which the state wants to achieve.
The differentia is to achieve a certain set of objectives by the statue
Meaning there is to be a set of objective that is to be achieved and for it the reasonable classification is made
Ex targeted subsidies pds to deliver grain pulses to the below poverty line.
New changing approach of equality
Ep royappa vs state of TN 1994
Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabinated and confined within traditional adn doctrinated limits. From the positive point of view equality is antithetical to arbitrary ness infact they are sworn in enemies one belongs to the rule of law in republic and other to the whims and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that ti is unequal both according to political logic and constitutional law adn is therefore violative of constitutional law.
Article 15
Prohibition of discrimination on the grounds of religion, race, caste, sex, place of birth
No citizen shall on ground only fo R2 C S POB or any of them be subject to any disability, liability, restriction or condition with regard to-
A. Access to shops, public restaurants, hotels and places of public entertainment
B. To use wells, tanks, bathing ghats, road and places of public resort maintained wholly or partly out of state funds or dedicated to use of general public.
3. Nothing in this article shall prevent the state from making any special provisions for women and children.
4. Nothing in this article or in clause (2) of article 29 shall prevent the state from making special provisions for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and the schedule tribes
5. Nothing in this article or in sub clause (g) of article 19 shall prevent state from making any special provision by law for the advancement of sc and st in educational institutions for admission including private institute even when they are aided unaided other than minority institutions in clause 1 of 30.
Objective of article 15
- Is to foster national identity and to preserve the pluralism and culture of india.
- M R BALAJI VS STATE OF MYSORE
is to advance the interest of the society as a whole by looking after the interest of the weaker section of the society. In this case sc held that the caste of a group of persons cannot be the sole or even predominant factor through it may be a relevant test for asserting a particular class, Backward class is to be social and educationally backward
Article 16
Equality of opportunity in public employment
1. There shall be equal opportunity in matters relating to employment under state
2. No citizen will be discriminated on grounds only of religion, race, caste, sex, decent, place of birth, residence or any of them be in eligible for or discriminated against in respect of an employment or office under state.
3. Nothing in the article shal prevent parliament form making a low prescribing class or classes of employment to an office under govt. local or other authorities
4.nothing is this article shall prevent the state from making appointment in favour of backward classes
4A. Consequential seniority
4B. Backlog vacancies
5. Religious denomination appointment
6. EBC 10% reservation in employment 103 rd CAA 2018
Reservation
Indira sawhney 1993
50% cap on reservation
Creamy layer OBC
Permits classification of backward and more backward
Reservation in promotion bared — removed with 77th CAA 1995
Backlog vacancies ____removed with 81st CAA 2000
M Nagarajan case 2006
Where the court upheld the validity of 77th CAA 1995, reservation in promotion
And stated that in promotion following criteria
1. the administration needs to have quantifiable date relating to reservation i.e backward classes
2. Data on inadequate representation
3. Maintain efficiency
The 2018 Jarnail Singh vs lachmmi Narayan Gupta
In Jarnail Singh it said that
1. no need of quantifiable data
2. show efficiency
3.But upheld that there is a need to prove adequate representation in higher cadres
4.states can apply creamy layer in promotions of SC/ST
Controversy related to reservation in private educational institute
Society for unaided put. School for Rajasthan vs UOI 2013
Upheld the validity of quota in put edu. Under the right to education act 2009
Argument
- Education cannot be treated as a purely commercial enterprise
- A21 is an obligation on state
- Right to education is a child centered act rather than an institutional centered act
Reservation of ews ?
2018 amendment 103rd brought reservation for EWS in reservation and employment
Pros
1. The down trodden, vulnerable in the forward caste would get equal opportunity
2. This has expanded the scope of the classification beyond caste as held in ram Singh vs UOI 2015
3. Increasing dissatisfaction of the weaker section of the forward caste was addressed
4. The distress in the agriculture and other sectors have lead to forward caste to come into weaker section
5. Suicide in agrarian weaker section of forward caste may get some relief.
Cons
- The weaker section classification is from BPL to 8lakhs which is very wide
- This breaches the cap of 50% in reservation in Indira sawhney case
- this will lead to conflict in between sc/st/obc against ews
- Already the government jobs are shrinking
- The classification is not based on intelligent differentia and nexus establishment is not present
- Possibility of the misuse of reservation
Way forward
There is a need for a commission based studies on ews and careful consideration is necessary as the classification is very wide.
Local reservation
Haryana government came out with a draft to reserve 75% of jobs in private sector of local people
Reasons
The reason being 1. Agrarian distress fragmentation of land
2. Climate uncertainty
3. Contributing to unemployment
4. Migration
5. Perception that centres devolution is not enough
Pros
- Increase employment of local people
- Germany has a industry in every village.
- lead to skilling of local people
- Other avenues than agriculture
- Clusters of working areas will develop
Issues
- This will lead to industries moving out of state as industry has become diverse and it cannot rely on a single area to employ
- impact on industries Investment
- Against the philosophy of cooperative and competitive federalism
- Burden of skilling will be on industries
Way forward
- Economic survey 2018-19 guides against this and states that such policies will hamper economic development
- To focus on labour intensive industries
- To focus on skilling and promoting entrepreneurship in the youth
Concluding
The long term effect of reservation in private sector will lead to more unemployment and deter industry from investing so the state should move towards attracting more invest and skilling programmes and grant incentives on employing locals rather that going for reservation.
Abolition of untouchability
Article 17 abolition of untouchability and forbids it in any form
Article 18
Abolition of titles
Article 19
Every citizen in the country has Been given 6 rights of freedom
- Right of freedom of speech and expression
- Right to assemble without arms or without the objective to be violent the reasonable restrictions are in section 144 of CrPC and 141 of IPC
- Freedom to form association or unions and cooperatives
- Right of movement through out the territory of india.
- Right to reside anywhere in India
- Right to profession
Issue of freedom of press
Freedom of press emanates from article 19 (1)(a)
Sakai paper vs UOI has held that the freedom of press is included in freedom of expression A 19(1)(a)
Indian express case stated
1. Right to print
2. Right to publish
3. Right to circulate
They all emanate from freedom of press
Press council of india was created to regulate the print media , it has 29 members
1- retired SC judge
20- members from media
5- nominated by parliament
3- ugc, sahityakala academy , bar council of india
Sedition section 124A of ipc??
Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, 102 [] the Government established by law in 103 [India], [] shall be punished with 104 [imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine. Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity. Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.]
Gandhiji called it prince among the political sections of ipc
Soli Sorabjee said what was a prince had now become a king of ipc
Pro
1. The conviction rate is low according to home ministry as 6 convictions in 6 years.
2. The section has been upheld to be constitutional in Kedarnath case 1962 and restricted its scope to 1. Incitement to violence 2. To disrupt the public order.
3. In Balwant Singh case the same principle was applied stating that using of slogans against the government which do not incite violence or disrupt public order is not sedition.
4. There are areas in india which are in stable which need to be dealt with
5. And it is better to have a law to deal with such cases as the countries that have repealed sedition law they have replaced it with anti terror laws ref. Anushka Singh liberal democracies.
6. Application is part of article 19 reasonable restriction.
7. Mere misuse cannot be grounds for repeal.
Cons
1. The section is used for curbing political dissent leading to chilling effect.
Doctrine of chilling effect is that when a person is muzzled internally because of the fear of getting punished for the criticism.
2. The major feel that the government should use it to curb dissent this leads to government moving much ahead Abhinav Chandrachud in republic of rhetoric.
3. The superemecourt has up held it but with guidelines that need to be followed
4. The words of the section are vaguely worded
5. Colonial legacy
6. Used to gag press
7. Uk removed 2010
Suggestions
1. Law commission 2018 has said it is necessary to reconsider sedition
As in a democracy singing from the same song book is not a benchmark of patriotism people should be at liberty to show disaffection in their own way.
Law commission also stated that sedition should be restricted to only criminal acts committed with intention to disrupt public order or overthrow disrupt public order or overthrow govt. with violence or illegal means
2. Abhinav Chandrachud states that
A. Maximum prison net of 2 years
B. Make it bailable non cogniazible
C. And insert the definition of s.124 A Kedarnath case into ipc.
Hate speech
Hate speech has existed in society since a long time but now it has taken a different form where a comment affects the persons on whom it is made without any consequences on the one who makes it.
Hate speech is causing harm, fear or incitement of violence towards a group, religion, race, caste, gender, orientation etc.
Government formed a committee on it
Vishwanathan committee
It recomended
1. Introduction of section in ipc rather than using IT act as it is an e commerce act.
2. Making state cyber crime cells under it district cells for monitoring
3. Put in guidelines that the provisions are not misused by the government agencies
4. Law commission states introduction of hate speech provisions in ipc
Concern
The provisions are vague
They are stringent and can encompass wider level of speeches
Misuses for political purpose clubbed with UAPA and sedition would make a person a criminal.
Article 20
Protection in respect of conviction of offences
- No ex-post-facto law no person be convicted for an offence except for the offence as per the law in force, and no penalty more that the law prescribes
- No Double jeopardy no person shall be convicted for the same offence twice
- no self incrimination no person shall be compelled to be witness against himself.
Article 21
Protection to life and Liberty
Protection of life and liberty had very limited meaning that is to exist.
In Gopalan case the court stated that article 19, 21, 22 exist mutually exclusive
A law cannot be declared as in valid as it has procedure established by law
Meaning 1. that a law exist
2. Law was made by a competent authority
3. Law making procedure was followed while making the law
This gave a complete blanket (crate Blanche) to legislature to enact any law
In Maneka Gandhi case the Supreme Court installed the due process of law meaning is the law procedure established by law and over and above is the law fair, non arbitrary, just, reasonable this got both the executive and legislative actions under the scanner of the Supreme Court.
Expanding the right to life as not just mere existence but it means much more.
Right to privacy
Right to privacy
Was minority judgement in kharab Singh vs state of TN 1993 stating RTP flows from Right to life and liberty
Fast forward to puttaswamy case 2018 stating the right to life not only originates from article 21 but also the part III as it guarantees other facets of dignity.
Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life
It has given
- Privacy of space meaning privacy in his own spaces like house
- privacy of decision meaning he is free to take his won decisions
- informational that is has right to get information
If a law has to be made retaliated to privacy then;
- it should have underplaying legislation
- Compelling state interest
- doctrine of proportionality
Mercy killing
Mercy killing means taking away life of a person who is in pain and it is humanity to kill him rather to let him live
The Supreme Court came out with guideline in the case of Aruna shanbaug case where Supreme Court gave the permission of passive euthanasia as to remove the life support of a person so he can pass away. As the Supreme Court held that right to life also means right to dignified life and dignified death .
So a person can make a living will as to when he is not able to recover and is dependent on life support system he has option of terminating his life at will, giving this authority to his close family members or relatives.
As the relatives will have to make a request for passive euthanasia to the high court
Which will be scrutinised by high court judge and 2 member
On the 3 doctor committee recommendation
If approved the hospital can remove the life support .
IT rules 2021
Information technology (intermediary guidelines and digital media ethics code ) rules 2021
Quote
Give me the liberty to know, to utter, adn to argue freely according to conscience, above all liberties - John Milton
Reason
- Fake news
- Propaganda
- Social intermediaries vs state
- Data infringement, monopolisation, manipulation, monetisation
- Cyber harassment
- Filter bubble
- Echo chambers
So new IT RULES 2021
Section 69 provides the government with power to intercept and monitor internet threats to sovereignty
Section 69 A provides the government to block internet
Section 79 provides to social media intermediaries safe harbour i.e immunities
Section 87 of IT act 2000 has give the government power to make rules regarding internet
So came the IT (intermediary guidelines and digital media ethics code ) rule 2021 they have :-
1. Traceability rules
2. Social media - intermediary to have a compliance officer to be a nodal contact person
3. Digital media - self regulating body is to be made
4. Over the top content makers need to self classification of their content
+ve
- This will reduce fake and propaganda news
- To an extent will help in regulation of digital data as per BN Sri Krishna committee to protect privacy
- speedy resolution of complaints
- Help in protecting the fabric of the nation i.e protecting youth from radicalisation, hate speech, cyber bulling.
- Fundamental rights are not absolute
-ve
1. Traceability would infringe peoples rights to speech and expression over spilling on press digitally
This will infringe the end to end guarantee that the social media intermediaries provide
2. This will lead to spliter net where the World Wide Web is divided into segments eg chinas 3 walls Great Wall of china, great sand wall, now great fire wall
3. Colourable legislation as the digital media is under the ministry of broadcasting the home ministry cannot make rules
4. Criminal liabilities on intermediaries
5. Right to internet is fundamental right as held in Anuradha Bhasin case
Internet shut downs
Anuradha Bhasin case the Supreme Court had stated that right to internet is right to freedom of speech and expression
As india has topped the list if internet shutdowns globally reported by software freedom law centres tracker
An longest shut down in Kashmir
The act that deal with it are IT act 2000
CrPC 1973 section 144
Telegraph act 1885 section 5(2) temporary suspension of internet .
Reasons
- To curb violence as was seen in Libya
- It was based on intelligence report
- This is a preventive measure
- It is done only as a last resort
Cons
1. It curbs right to freedom of speech and expression, right to profess any trade as this has lead to loss of 1.3 billion dollar loss due to internet shutdown across country in 2019
2. There is no real evidence that there was possibility of violence
3.shut down creates panic and hysteria
4.it effects other dimensions
-education - information -decision making
- direct bridge between the minister and people
minister——twitter——people
5. Right to collective developement is a 3rd generation right
- 1st generation civil political rights
-2nd generation socio economic rights
- 3rd generation collective development rights of people and groups held against their respective states aligns with the final tense of fraternity
Sustainable development goal 9 to strive to provide universal and affordable access to internet in least developed countries
Compulsory vaccination
Registrar general vs state of Meghalaya
The Meghalaya high court ruled that the state government order requiring shopkeepers, local taxi drivers and others to get the COVID 19 vaccines before they resume economic activities is violating the fundamental right 19 and 21 right to life ( privacy) and right to profess
Compulsory vaccination has often been deployed in India and abroad.
1. The vaccination act 1880 allows smallpox compulsory vaccination
2. Vavricka and others vs Czech Republic in the European court of human rights (ECtHC) said compulsory vaccination is consistent with right to privacy and religion
3. Puttaswamy case the restriction on privacy is justified
A. If it is made by law - epidemic diseases act 1897 which help in managing epidemics
B. It is done for legitimate state interest - protection of people
C. Done with the doctrine of proportionality - nearly death of 4.5 lakh people
Yes it becomes necessary to have compulsory vaccination but seeing the circumstances the unavailability of vaccine the government should go for drives and later on impose such restrictions that to which are less stringent like fines etc.
IT rules 2021
Information technology (intermediary guidelines and digital media ethics code ) rules 2021
Quote
Give me the liberty to know, to utter, adn to argue freely according to conscience, above all liberties - John Milton
Reason
- Fake news
- Propaganda
- Social intermediaries vs state
- Data infringement, monopolisation, manipulation, monetisation
- Cyber harassment
- Filter bubble
- Echo chambers
So new IT RULES 2021
Section 69 provides the government with power to intercept and monitor internet threats to sovereignty
Section 69 A provides the government to block internet
Section 79 provides to social media intermediaries safe harbour i.e immunities
Section 87 of IT act 2000 has give the government power to make rules regarding internet
So came the IT (intermediary guidelines and digital media ethics code ) rule 2021 they have :-
1. Traceability rules
2. Social media - intermediary to have a compliance officer to be a nodal contact person
3. Digital media - self regulating body is to be made
4. Over the top content makers need to self classification of their content
+ve
- This will reduce fake and propaganda news
- To an extent will help in regulation of digital data as per BN Sri Krishna committee to protect privacy
- speedy resolution of complaints
- Help in protecting the fabric of the nation i.e protecting youth from radicalisation, hate speech, cyber bulling.
- Fundamental rights are not absolute
-ve
1. Traceability would infringe peoples rights to speech and expression over spilling on press digitally
This will infringe the end to end guarantee that the social media intermediaries provide
2. This will lead to spliter net where the World Wide Web is divided into segments eg chinas 3 walls Great Wall of china, great sand wall, now great fire wall
3. Colourable legislation as the digital media is under the ministry of broadcasting the home ministry cannot make rules
4. Criminal liabilities on intermediaries
5. Right to internet is fundamental right as held in Anuradha Bhasin case
Cinematography act amendment bill 2021
India is one of the largest producer of films in the world and now the over the top content has been booming, but this is plagued by many problems like piracy, certification, women’s exploitation( raj kundra)
So the government has come out with cinematography amendment bill 2021.
certification body is CBFC central board of film certification it is a Statutory body made under cinematography act 1952, the chair and and members are appointed by GOI
K S ABBAS case cinematography act is valid and in consonance with constitution.
New provisions
1. Certification
A. new provision of recertification has been introduce in section 5 (b) (1) where the government can withdraw its certificate and put it under scanner again - this has said to be reasonable restriction.
B. There is age certification classification has increased from 2 to 5 as universal, above 7, 13+, 16+, adult
C. Eternal certification earlier the certification was limited to 10 years now it has moved to eternal certification
D. Removal of FCAB film certification appellate board which had an appeal system from CBFC now the appeal will lie in HIGH COURTS.
- Piracy issue the bill has introduced section 6AA under the act to prevent piracy.
Issues
- The scope if state influence
- It will lead to hecklers veto where anyone can demand to strike down the certification.
- The removal of appeal board will lead to issues of long pendency in high court
- This will lead to self restraint as creative ideas would feel they are watched by the government
- Above point it will lead to slowing down of the film industry
- CBFC can only certify the professional people this will leave out the online free content on platforms like YouTube, Instagram etc.
- USA has voluntary certification and india also should move towards it as the society itself has morals and it will regulate itself
- Appointment of the board members is made by government.
Article 21 A
Article 21 A provides for right to education
Got in by 86th CAA 2002
As earlier it was under dpsp
The case of Mohini Jain the Supreme Court stated that the right to education flows from article 21
Same was resonated in unni Krishnan case
So amendment was made
It made changes in article 45 that state shall endeavour to provide early childhood care from 0-6
Article 51k fundamental duty that every parent would send their ward to provide opportunities for education to his child in the age of 8-14.
Higher education
In Farzana BATOOL vs UOI case the court states that the access to professional education is not a fundamental right the sate must take affirmative measures to secure the right to education at all levels.
The issue of copyrights under section 52 of copyrights acts allows the reproduction of any work by a teacher or a pupil in the course of instruction there in is not confined to the time and place of instruction and would include anything that could be justificed fro the purpose of instruction Section 52 (1)(a) includes “fair dealing” of any copyright able work.
Article 22
Protection against detention
Detention is of 2 types punitive detention and preventive detention
- No person shall be detained without informing him the grounds of detention. The person has a right of advocate
- He has to be produced in front of a district magistrate in 24hrs
Clause 1 and 2 shall not apply to enemy alien and preventive detention
A advisory body authorises the who is judge of high court
The person detained has to be told the grounds of his detention and given the chance of earliest representation.
The facts shall not be disclosed if they are against the public interest Parliament has all the powers to regulate the time period and procedure and class of people to be detained.
Article 23
Prohibition of traffic in human beings and forced labour
The article prohibits traffic in human beings , beggar and other similar forms of forced labour. Anu contravention of this provision shall be an offence punishable in accordance with law. This right is available to both citizen and non citizen. It protects the indivisual not only against the state but also against private person.
The expression traffic in human beings includes
A. Selling and buying of men,woman and children like goods.
B.immoral traffic in women and children, including prostitution;
C. Devadasis
D. Slavery to punish these acts the parliament.
Article 24
Prohibition of employment of children in factories below the age of 14 in any factory, mine or other hazardous activities like construction work or railways. But it does not prohibit their employment in any harmless or innocent work.
Article 25
Right to freedom of conscience and free professsion, practice and propagation of religion.
- subject to public morality and health and to the other provisions of this part all persons are equally entitled to the freedom of conscience and the rightfully to profess and practice.
- nothing in this article shall affect the operation of any existing law or prevent the state from making the law -
a) regulating or restricting any economic, financial politically or other secular activity which may be associated with religious practice.
b) provide for social welfare and reform or the throwing open of Hindu religious institutes of a public character to all cases and sections of Hindus
Article 26
Freedom to manage religious affairs - subject to public order, morality and health every religious denomination or any section there of shall have the right
a) to establish and maintain institutions for religious and charitable purposes;
b) to manage its own affairs in matter of religion;
c) to own acquire movable and immovable property;
d) to administer such property in accordance with law.
While article 25 confers the particular rights on all person
Auricle 26 is confined to religious denomination or any section there
Article 26 thus guarantees collective freedom of religion.
Article 27
Freedom from payment of taxes for the promotion of any particular religion.
Article 28
Freedom to attend at religious instructions or religious worships in certain educational institutions
- No religious instructions shall be provided in any educational institutions wholly maintained out of state funds
- nothing in clause 1 shall apply to an educational institution which a is administered by the state but has been established under any endowment or trust which requires that religious instructions shall be imparted in such institutions
- State recognition or state fun no person is required to attend such an institution
Article 29
Cultural and educational right
Article 29 protects the interest of minorities
1)any section of the citizen residing in the territory of india or any part there of 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 educational institutions maintained by the state or receiving Adi out of sate funds on grounds only or religion, race , caste , language or any of them
Article 30
Right of minorities to establish Axminster educational institute
1) all minorities weather base on religion or language shall have the right to establish and administer educational institute of their choice
2) the sae shall not in granting aid to educational institute discriminate against any educational institute on the grounds that it is under management of minority, wether based on religion or language
Objective of article 29 adn30 was to make that they will not be discriminated against
It was not intended to pamper as favoured communities
It should follow therefore freon article 14 and 15 majority communities have right to similar treatment at the hands of the matter of recognition, affiliation government Adi or on displacement management in respect of educational institutions established by majority
The thesis is that majority does not need attention as it can take care of its won needs as india has voting rights for every one and they can make the government do what they want.
Dpsp
A democracy is fragile unless the socioeconomic foundation is strengthened with policies aims to establish a welfare state
Part IV of the constitution gets the directive principles of state policy it is to be the guiding source for the government fo achieve economic democracy.
They are non justifiable in nature because
- economic condition of the country cannot finance it
- Cultural diversity and backwardness of the country
- a new independent country which if implemented dpsp would crush some trades in wake of its independence
These were recommended by B N Rao the constitutional advisor to keep some justifiable and non justifiable rights
It was an influence of Ireland and GOI act 1935. They are amplifying preamble
Socialist and secular ideas eg uniform civil code
They put a moral obligation onto the state to fulfill them
These principles contemplate the ideology of socialism and lay down the framework of a democratic socialist state. The concept envisages providing social and economic justice, so that state should achieve the optimum norms of the welfare state.
Criticism
- Not legally justified
- Illogically arranged
- Conservative
- Constituional conflicts
Utility
- They create moral obligation to government to implement and make the dpsp a reality
- They are instrument of instruction
- Light of beacon to the courts in exercising judicial review
- Amplifying the preamble
- Stability and continuity in domestic and foreign policy
- they supplement the part 3 as political rights without economic rights is of no use
- crucial test for performance of government.
- acts as friend philosopher guide
Upsc outside part IV
- 335 part XVI claims to sc/st to employment
- 350A part XVII instruction in mother tounge
- 351 part XVII development of hindi language
List of dpsp
They direct the state through the following articles:
1- Article 38:To promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political shall inform all the institutions of the national life.
2- Article 39:To Secure:
(a) Right to an adequate means of livelihood for all citizens
(b) Equitable distribution of material resources of the community for the common good
(c) Operation of an economic system to prevent the concentration of wealth and means of production
(d) Equal pay for equal work for both men and women
Preservation of the health and strength of workers and children against forcible abuse
(e) Opportunities for the healthy development of children.
3- Article 39 A:To promote equal justice and to provide free legal aid to the poor.
4- Article 41:To secure the right to work, right to education and right to public assistance in cases of unemployment, old age, sickness and disablement.
5- Article 42:To make provision for just and humane conditions for work and maternity relief.
6- Article 43:To secure a living wage, a decent standard of living and social and cultural opportunities for all workers. The State shall promote cottage industries on an individual or co-operative basis in rural areas.
7- Article 43 A:To take steps to secure the participation of workers in the management of industries.
8- Article 47:Raise the level of nutrition and the standard of living of people and improve public health.
Gandhian Principles
These principles reflect the programme of reconstruction enunciated by Gandhi during the national movement. In order to fulfil the dreams of Gandhi, some of his ideas were included in DPSP and they direct the state through the following articles:
1- Article 40:To organise village panchayats and endow them with necessary powers and authority to enable them to function as units of self-government.
2- Article 43:To promote cottage industries on an individual or co-operation basis in rural areas.
3- Article 43 B:To promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies.
4- Article 46:To promote the educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections of the society and to protect them from social injustice and exploitation.
5- Article 47:To prohibit the consumption of intoxicating drinks and drugs which are injurious to health.
6- Article 48:To prohibit the slaughter of cows, calves and other milch and draught cattle and to improve their breeds.
Liberal-Intellectual Principles
These principles are inclined towards the ideology of liberalism and they direct the state through the following articles:
1- Article 44:To secure for all citizens a uniform civil code throughout the country.
2- Article 45:To provide early childhood care and education for all children until they complete the age of six years.
3- Article 48:To organise agriculture and animal husbandry on modern and scientific lines.
4- Article 48 A:To protect and improve the environment and to safeguard forests and wildlife.
5- Article 49:To protect monuments, places and objects of artistic or historic interest which are declared to be of national importance.
6- Article 50:To separate the judiciary from the executive in the public services of the State.
7- Article 51:To promote international peace and security and maintain just and honourable relations between nations; to foster respect for international law and treaty obligations, and to encourage settlement of international disputes by arbitration.
New added
Four new Directive Principles were added in the42ndAmendmentAct of 1976to the original list. These are:
- Added clause inArticle 39:To secure opportunities for the healthy development of children.
- Added clause inArticle 39 as Article 39A: To promote equal justice and to provide free legal aid to the poor.
- Added clause in Article 43 as Article 43 A:To take steps to secure the participation of workers in the management of industries.
- Added clause in Article48 as Article 48A:To protect and improve the environment and to safeguard forests and wildlife.
The44thAmendment Act of 1978added one more DPSP which requires the state to minimise inequalities in income, status, facilities and opportunities under Article 38.
The86thAmendment Act of 2002changed the subject matter of Article 45 and made elementary education a fundamental right under Article 21 A. The amended directive requires the State to provide early childhood care and education for all children until they complete the age of fourteen years.
The97thAmendment Act of 2011added a new DPSP relating to cooperative societies. It envisages that the state promotes voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies (Article 43B).
In nutshell, the Directive Principles of State Policy refers to those principles, which should be kept in mind by the State while formulating policies. They are non-justiciable, which means one cannot approach the court for its non-implementation but can be referred to by the Supreme Court while deciding whether a particular policy is unconstitutional or not.
Fundamental duties list
Abide by the Constitution and respect national flag & National Anthem
Follow ideals of the freedom struggle
Protect sovereignty & integrity of India
Defend the country and render national services when called upon
Sprit of common brotherhood
Preserve composite culture
Preserve natural environment
Develop scientific temper
Safeguard public property
Strive for excellence
Duty fo all parents/guardians to send their children in the age group of 6-14 years to school. Added in 86th CAA 2002
In 1976 there was a need felt that there should be duties that follow rights so swaran singh committee was appointed and 42nd CAA 1976 WAS ADOPTED
Features
- Some of them are moral in nature while others are civil eg. Cherishing freedom struggle and civil - respecting national flag and national anthem
- They have codified the task an integral way of life
- Fd are confined to citizens only
- Non justifiable
Criticism
- ist is not exhausting
- Vague as cherish the ideas of freedom struggle, the ideas that were many revolutionary terrorism, non violence, communist, liberal, capitalist etc
- Concept of moral precepts
- No need of inclusions as they are already in the psyche of people
- They should have been added just after part III rather than IV as this reduces their importance
Significance
- Reminder to the citizens that they enjoy rights but also have obligation of duties
- They warn against any anti national elements
- They guide as a beacon of light to judiciary
- They are source of inspiration to the citizens.
