Indian constitution Flashcards
1
Q
Right to Education: evolution?
A
- mentioned in Article 45-DPSP- indicated that the state should provide free and compulsory education to children up to the age of 14 within a decade.
- SC in 1992 held in Mohini Jain v. State of Karnataka that RTE was a part of Art 21
- Unnikrishnan JP v. State of Andhra Pradesh 1993: state was duty-bound to provide education to children up to the age of 14 within its economic capacity.
- RTE became FR under Art 21A by 86th CAA,2002
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2
Q
RTE: minority vs non-minority institution/
A
- In Unnikrishnan JP vs State of Andhra Pradesh, 1993, court held that private educational institutions, including minority institutions, would have to play a role alongside government schools.
- This equal application of law was further laid out in TMA Pai case 2002 and P A Inaamdar case. In the former, SC held that a regulation framed in the national interest must necessarily apply to all institutions regardless of whether they are run by majority or minority.
- When the RTE Act was subsequently enacted in 2009, it did not directly discriminate between students studying in minority and non-minority institutions
- RTE Act was amended in 2012 to mention that its provisions were subject to Articles 29 and 30 which protect the administrative rights of minority educational institutions. This was later upheld by SC in Pramati Educational Trust verdict
- This gave rise to an absurd situation where the onus on private unaided schools was much higher than that on government aided minority schools
- This application of discrimination in RTE made it violative of Article 14 and also economically unviable for many private schools. there is also no rational nexus between the object of universal education sought to be achieved by this act and the step of excluding minority schools from its purview.
3
Q
T/F: Fundamental Duties are statutory duties.
A
T
4
Q
T/F: Court may take Fundamental Duties into account while adjudicating on a matter.
A
T
5
Q
T/F: text of the oath to be taken before assuming office as a minister, is sacrosanct and it cannot be altered.
A
T If a person wanders from the text, it is the responsibility of the person administering the oath to interrupt and ask the person being sworn in to read it out correctly
6
Q
T/F: If a question arises over legality of oath, approval of the person administering the oath is key, though it can be legally challenged in a HC or SC.
A
F cannot be legally challenged once Guv recognises the oath.
7
Q
Constituent Assembly debates around ‘Bharat vs INdia’ issue?
A
- It was a heated debate that saw sharp exchanges among the members on November 18, 1949 – just eight days before the Constitution was adopted by “We, the people”.
- HV Kamath objected to the Ambedkar committee’s draft that had two names – India and Bharat.
- He proposed amendments to Article 1 putting Bharat or alternatively Hind as the primary name for the country and pronouncing India only as the name in the English language.
- Seth Govind Das said, “India, that is, Bharat” are not beautiful words for the name of a country. We should have put the words “Bharat known as India also in foreign countries.”
- Das cited the Vedas, the Mahabharat, couple of Puranas and the writings of Chinese traveller Hiuen-Tsang to say that Bharat was the original name of the country, hence India should not be put as the primary name in the constitution post-independence.
- He also invoked Mahatma Gandhi saying that the country fought the battle of freedom raising the slogan of “Bharat Mata Ki Jai” asserting that Bharat could be the only plausible name for the country.
- Among others who supported India being named only as Bharat included KV Rao from Andhra Pradesh and MA Ayyangar of Madras province, who proposed names of Bharat, Bharat Varsha and Hindustan as substitutes for India in Article 1.
- At the end, when Rajendra Prasad put the amendments to vote, all fell. Article 1 remained intact as “India, that is Bharat”. However, the debate has continued.
8
Q
COnstitutional provisions wrt Water Disputes Resolution?
A
- Entry 17 of State LIst: water supplies, irrigation and canals, drainage and embankments, water storage and water power; but subject to
- Entry 56 of union List: Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law
- Article 262: “Parliament may, by law, provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley.” AND “Notwithstanding anything in this Constitution, Parliament may, by law, provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint “
- Four Acts, three under Entry 56 of List –I namely, the “River Boards Act 1956”, “Betwa River Board Act 1976” and “Brahmaputra Board Act 1980” and the fourth one under Article 262, namely, the “Inter-State River Water Disputes Act, 1956” are the legislations so far enacted by the Indian Parliament under the above Constitutional provisions. Recently LS passed the Inter-State River Water Disputes (Amendment) Bill, 2019 establishing a single permanent tribunal
- Nine Inter-State River Water Disputes Tribunals were constituted under the Act till date. The decisions of these tribunals that are notified in the Official gazette are effective and binding on the parties to the disputes under the provisons of Inter-State River Water Disputes Act, 1956
9
Q
A
10
Q
State’s Regulatory powers over Minority institutions?
A
- In the case against West Bengal Madrassas Service Commission Act, 2008, SC ruled that “minority institutions cannot claim to have absolute right in deciding appointment of teachers and it can be regulated by a government to ensure excellence in imparting education.”
- SC said that good quality of education cannot be compromised in national interest irrespective of whether it is minority or majority educational institutions.
- court explains how to strike a “balance” between the two objectives of excellence in education and the preservation of the minorities’ right to run their educational institutions.
- court broadly divides education into two categories – secular education and education fr preservation of heritage, culture etc of a religious or linguistic minority
- When it comes to the latter, the court advocated “maximum latitude” to be given to the management to appoint teachers.
- However, minority institutions where the curriculum was “purely secular”, the intent must be to impart education availing the best possible teachers.
11
Q
Special rights enjoyed by religious minority institutions?
A
- Under Art 30(1)(a), MEI enjoy right to education as a Fundamental Right. In case the property is taken over by state, due compensation to be provided to establish institutions elsewhere
- Under Article 15(5), MEIs are not considered for reservation
- Under Right to Education Act, MEI not required to provide admission to children in the age group of 6-14 years upto 25% of enrolment reserved for economically backward section of society
- In St Stephens vs Delhi University case, 1992, SC ruled that MEIs can have 50% seats reserved for minorities
- In TMA Pai & others vs State of Karnataka & others 2002 case, SC ruled that MEIs can have separate admission process which is fair, transparent and merit based. They can also separate fee structure but should not charge capitation fee.
12
Q
right to Private property?
A
- SC has recently held that a citizen’s right to own private property is a human right and the state cannot take possession of it without following due procedure and authority of law.
- state cannot trespass into the private property of a citizen and then claim ownership of the land in the name of ‘adverse possession’.
- plea of adverse possession, allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years.
- Grabbing private land and then claiming it as its own makes the state an encroacher.
- Article 300A required the state to follow due procedure and authority of law to deprive a person of his or her private property.
- In a welfare state, right to property is a human right. The right to property is now considered to be not only a constitutional or statutory right, but also a human right.
13
Q
‘Right to be Forgotten’?
A
The ‘right to be forgotten’ is the right to have publicly available personal information removed from the internet, search, databases, websites or any other public platforms, once the personal information in question is no longer necessary, or relevant.
RTBF gained currency after the 2014 decision of the Court of Justice of the European Union (“CJEU”) in the Google Spain case.
RTBF has been recognised as a statutory right in the European Union under the General Data Protection Regulation (GDPR), and has been upheld by a number of courts in the United Kingdom, and in Europe.
A person’s mistakes in his personal life becomes and remains in public knowledge for generations to come
14
Q
‘Right to be Forgotten’ in the Indian context?
A
- The Right to be Forgotten falls under the purview of an individual’s right to privacy, which is governed by the Personal Data Protection Bill that is yet to be passed by Parliament.
- The bill exclusively talks about the “Right to be Forgotten.”
- under the Right to be forgotten, users can de-link, limit, delete or correct the disclosure of their personal information held by data fiduciaries.
- Issue: while the draft bill gives some provisions under which a user can seek that his data be removed, his or her rights are subject to authorisation by the Adjudicating Officer who works for the DPA.
- In 2017, the Right to Privacy was declared a fundamental right (under Article 21) by the Supreme Court in its landmark verdict (Puttuswamy case).
- The court said at the time that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”.
- Currently, many High courts have expressly recognised the right to be forgotten in their judgments, taking note of international jurisprudence on this right.
- At a time when the judiciary is entering Phase III of its ambitious eCourts project, rights such as RTBF will have to be coded into any technology solution that is developed for judicial data storage and management.
- challenges:
- Right to be forgotten may get into conflict with matters involving public records.
- For instance, judgments have always been treated as public records and fall within the definition of a public document according to of the Indian Evidence Act, 1872.
- According to a report by Vidhi Centre for Legal Policy, RTBF cannot be extended to official public records, especially judicial records as that would undermine public faith in the judicial system in the long run.
- Information in the Public Domain is Like Toothpaste
- Individual vs Society: Right to be forgotten creates a dilemma between the right to privacy of individuals and the right to information of society and freedom of press.
- Right to be forgotten may get into conflict with matters involving public records.
15
Q
New guidelines for simplification of the process of renunciation of citizenship for Indians?
A
- Some of the simplified provisions in the new guidelines include- Uploading of documents online and completion of the process of renunciation within 60 days
- The new form also has a provision mandating the Indian citizen to indicate the reason for renouncing the citizenship
- The uploaded documents have to be submitted to the District Magistrate in case of citizen living in India or an Indian Mission abroad. The applicant will be interviewed before issuing the final certificate
- Also, the guidelines specify that as per the Citizenship act, 1955- “every minor child of that person shall thereupon ceases to be a citizen of India”.
- Concern with the guidelines: The guidelines are not clear if minors would also lose citizenship if only one of the parents gives up her/his Indian citizenship.
16
Q
CAB doesn’t apply to?
A
1) are covered under Inner Line permit (ILP)-Arunachal P, Nagaland (Dimapur town NOT) and Mizoram Centre has also announced that CAB will be notified only after ILP is installed in Manipur 2) Tribal areas covered under 6th schedule- -> almost whole of Meghalaya (except part of shillong) -> parts of Assam (3 autonomous districts) and Tripura (70%)
