Constitution - Unit 4 - Notes

7/27/2019 Constitution - Unit 4 - Notes

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BASIC PRINCIPLES OF INDIAN CONSTITUTION

The Indian constitution is based on several broad principles:

1. The principle of peoples representations Reflected in provisions dealing with adult

suffrage, with special representations for certain sections of society.

2. The principle of democratic governance embodied in the parliamentary system.

3. The principles of individual and collective human rights; civil liberties and social justice:

preamble and Fundamental rights

4. The principle of a centralised federation

5. The principle of judicial custodianship: powerful judiciary

6. The principle of change and transformation provides for amendment: 2/3rdsimple majority

in both houses; sometimes ratification by state legislatures (1/2) also.

The philosophy of the constitution

The Preamble (amended once in 1976 to include the terms socialist and

secular)

Purpose of the Preamble:

1. The Preamble indicates the source from which the constitution derives its authority

2. It states the objectives which the constitution seeks to establish and promote.

Features of the Constitution

1. Drawn from different sources: borrowed constitution

Government of India Act, 1935

Fundamental rights from USA

Parliamentary system from UK

Directive Principles of State Policy from Ireland

Emergency provisions from Germany

beautiful patchwork2. Supplemented by multiple amendments and

practically recast by the 42nd, 43rdand 44thamendments between 1976-78

3. It is the most lengthy and detailed constitutional document produced so far:

It incorporates the accumulated experience of different countries

Detailed administrative provisions are included to remove any loopholes and prevent

misuse

Vast country with peculiar problemsthese are dealt with in great detail: Example: Part

XVI: SC.ST & BC, Part XVIII: Official language, Part XVII: Emergency provisions


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Constitution of Units included: constitution of Centre and states, of regions with problems

(NE states), J&K accorded special status

Deals elaborately on Centre-State relations, State-State relations, disputes etc.

Detailed list of Fundamental Rights, Directive Principles of State and also fundamental

duties

4. More flexible than rigid: Amendments: complicated and difficult: 2/3rds of the members of both houses of

parliament.

For more important amendments, of state legislature members also

Supplement constitutional provisions by legislation

5. A combination of the written law and parliamentary supremacy

6. In spite of being detailed, there is a place for conventions to decide certain matters: for

example: proving a majority in front of the president

7. Fundamental rights. These are justifiable rights and are enforceable

---------------------------------------------

Writs in Indian Constitution

The Indian Constitution empowers the Supreme Court and High Courts to issue writs for enforcement of

any of the fundamental rights conferred by Part III of Indian Constitution.

The writ issued by Supreme Court and High Court differs mainly in three aspects:

a) The Supreme Court can issue writs only for the enforcement of fundamental rights whereas a High

Court can issue writs for enforcement of fundamental rights along with for any other purpose (refers to

the enforcement of any legal right).

b) SC can issue writ against a person or government throughout the territory whereas High Court canissue writs against a person residing or against a government located within its territorial jurisdiction or

outside its jurisdiction only if the cause of action arises within the territorial jurisdiction.

c) SC writs are under Article 32 which in itself is a fundamental right thus SC cannot refuse to exercise itswrit jurisdiction. Whereas article 226 is discretionary thus HC can refuse to exercise its writ jurisdiction.

Types of writs:

Habeas Corpus

Habeas corpus is a Latin term which literally means "You may have the body". The concept of writ ofhabeas corpus has originated from England. This is a writ or legal action which can be used by a person toseek relief from illegal detention. The writ is a direction of the Court to a person who is detaining another,

commanding him to bring the body of the person in his custody at a specified time to a specified place fora specified purpose.

A writ of habeas corpus has only one purpose: to set at liberty a person who is confined without legaljustification; to secure release from confinement of a person unlawfully detained. The writ does not


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punish the wrong-doer. If the detention is proved unlawful, the person who secures liberty through thewrit may proceed against the wrong - doer in any appropriate manner. The writ is issued not only against

authorities of the State but also to private individuals or organizations if necessary.

Mandamus

The Latin word 'mandamus' means 'we command'. The writ of 'mandamus' is an order of the High Courtor the Supreme Court commanding a person or a body to do its duty. Usually, it is an order directing the

performance of ministerial acts. A ministerial act is one which a person or body is obliged by law toperform under given circumstances. For instance, a licensing officer is obliged to issue a license to anapplicant if the latter fulfills all the conditions laid down for the issue of such license. Similarly, anappointing authority should issue a letter of appointment to a candidate if all the formalities of selection

are over and if the candidate is declared fit for the appointment. But despite the fulfillment of suchconditions, if the officer or the authority concerned refuses or fails to issue the appointment letter, the

aggrieved person has a right to seek the remedy through a writ of 'mandamus'.

3. Certiorari

Literally, Certiorari means to be certified. It is issued by the higher court to the lower court either totransfer the case pending with the latter to itself or to squash the order already passed by an inferior court,tribunal or quasi judicial authority. The conditions necessary for the issue of writ of certiorari.

a. There should be court, tribunal or an officer having legal authority to determine the question with aduty to act judicially.

b. Such a court, tribunal or officer must have passed order acting without jurisdiction or in excess of thejudicial authority vested by law in such court, tribunal or officer.

c. The order could also be against the principles of natural justice or the order could contain an error ofjudgment in appreciating the facts of the case.

4. Prohibition

The Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This writ isissued when a lower court or a body tries to transgress the limits or powers vested in it. The writ of

prohibition is issued by any High Court or the Supreme Court to any inferior court, or quasi judicial body

prohibiting the latter from continuing the proceedings in a particular case, where it has no jurisdiction totry. After the issue of this writ, proceedings in the lower court etc. come to a stop.

Difference between Prohibition and Certiorari:

1. While the writ of prohibition is available during the pendency of proceedings, the writ of certiorari canbe resorted to only after the order or decision has been announced.

2. Prohibition can be issued only against judicial and quasi judicial authorities whereas Certiorari can be

issued even against administrative authorities affecting rights of individuals.

Quo Warranto

The word Quo-Warranto literally means "by what warrants?" or "what is your authority"? It is a writissued with a view to restrain a person from holding a public office to which he is not entitled. The writrequires the concerned person to explain to the Court by what authority he holds the office. If a person hasusurped a public office, the Court may direct him not to carry out any activities in the office or may


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announce the office to be vacant. Thus High Court may issue a writ of quo-warranto if a person holds anoffice beyond his retirement age.

QUO WARRANTO

The meaning of the term Quo Warranto is by what authority. The writ of quo warranto ma y beissued against a person holding a public office or governmental privilege. The issue of summonis followed by legal proceedings, during which an individual's right to hold an office orgovernmental privilege is challenged.

The writ requires the concerned person to explain to the Court by what authority he holds theoffice. If a person has usurped a public office, the Court may direct him not to carry out anyactivities in the office or may announce the office to be vacant.

Indian Laws on Administration: Conditions for Issuance and Non-Issuance of Writ of Quo

Warranto

The writ is issued by the Court after reviewing the circumstances of the case. There are a fewconditions which must be fulfilled for the grant of the writ of quo warranto India:

The concerned office must be a government unit or public office which performs public duties.Examples of such office members are advocate general, university officials, members of amunicipal board.

The public office must have a real existence. It should be permanent and cannot be terminated.

A person against whom the writ of quo warranto is issued must have the real possession of thepublic office.

The writ shall be issued only when the public office is held by a particular person in an illegalmanner.

The Court may not grant a writ based on certain grounds, which include:

Where there was acquiescence or acceptance on the part of the appellant

Where the issuance would be futile as the holder of the office has already stopped acting in thesaid office or position

When an alternative remedy is available

Freedom of PressRelevant cases

In a landmark judgement of the case Maneka Gandhi v. Union of India,[2]the Supreme Courtheld that the freedom of speech and expression has no geographical limitation and it carries

with it the right of a citizen to gather information and to exchange thought with others not only inIndia but abroad also.

The constitution of India does not specifically mention the freedom of press. Freedom of press isimplied from the Article 19(1)(a) of the Constitution. Thus the press is subject to the restrictionsthat are provide under the Article 19(2) of the Constitution. Before Independence, there was noconstitutional or statutory provision to protect the freedom of press. As observed by the PrivyCouncil in Channing Arnold v. King Emperor:[3]The freedom of the journalist is an ordinary partof the freedom of the subject and to whatever length, the subject in general may go, so also
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may the journalist, but apart from statute law his privilege is no other and no higher. The rangeof his assertions, his criticisms or his comments is as wide as, and no wider than that of anyother subject. The Preamble of the Indian Constitution ensures to all its citizens the liberty ofexpression.Freedom of the presshas been included as part of freedom of speech andexpression under the Article 19 of the UDHR. The heart of the Article 19 says: Everyone hasthe right to freedom of opinion and expression, this right includes freedom to hold opinions

without interference and to seek, receive and impart information and ideas through any mediaand regardless of frontiers.

In Romesh Thapar v. State of Madras,[4]Patanjali Shastri, CJ observed: Freedom of speechand of the press lay at the foundation of all democratic organisations, for without free politicaldiscussion no public education, so essential for the proper functioning of the process of populargovernment, is possible.

The Supreme Court observed in Union of India v. Assn. for Democratic Reforms:[5]Onesidedinformation, disinformation, misinformation and non-information, all equally create anuninformed citizenry which makes democracy a farce. Freedom of speech and expressionincludes right to impart and receive information which includes freedom to hold opinions.

In Indian Express v. Union of India,[6]it has been held that the press plays a very significant rolein the democratic machinery. The courts have duty to uphold the freedom of press andinvalidate all laws and administrative actions that abridge that freedom. Freedom of press hasthree essential elements. They are:1. freedom of access to all sources of information ,[7]2.freedom of publication, and 3. freedom of circulation.[4]

In India, the press has not been able to practise its freedom to express the popular views.In Sakal Papers Ltd. v. Union of India,[8]the Daily Newspapers (Price and Page) Order, 1960,which fixed the number of pages and size which a newspaper could publish at a price was heldto be violative of freedom of press and not a reasonable restriction under the Article 19(2).Similarly, inBennett Coleman and Co. v. Union of India,[9]the validity of the Newsprint ControlOrder, which fixed the maximum number of pages, was struck down by the Supreme Court ofIndia holding it to be violative of provision of Article 19(1)(a) and not to be reasonable restriction

under Article 19(2). The Court struck down the rebuttal of the Government that it would helpsmall newspapers to grow[how?].

In Romesh Thapar v. State of Madras(1950 SCR 594, 607; AIR 1950 SC 124), entry andcirculation of the English journal "Cross Road", printed and published in Bombay, was bannedby the Government of Madras. The same was held to be violative of the freedom of speech andexpression, as without liberty of circulation, publication would be of little value. In Prabha Duttv. Union of India((1982) 1 SCC 1; AIR 1982 SC 6.), the Supreme Court directed theSuperintendent of Tihar Jail to allow representatives of a few newspapers to interview Rangaand Billa, the death sentence convicts, as they wanted to be interviewed.

There are instances when the freedom of press has been suppressed by the legislature. Theauthority of the government, in such circumstances, has been under the scanner of judiciary. In

the case of Brij Bhushan v. State of Delhi(AIR 1950 SC 129), the validity of censorship previousto the publication of an English Weekly of Delhi, the Organiser was questioned. The court struckdown the Section 7 of the East Punjab Safety Act, 1949, which directed the editor and publisherof a newspaper to submit for scrutiny, in duplicate, before the publication, till the further orders ,all communal matters all the matters and news and views about Pakistan, includingphotographs, and cartoons, on the ground that it was a restriction on the liberty of the press.Similarly, prohibiting newspaper from publishing its own views or views of correspondents abouta topic has been held to be a serious encroachment on the freedom of speech andexpression.[10]
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Restrictions

Under Indian law, the freedom of speech and of the press do not confer an absolute right toexpress one's thoughts freely. Lord Denning, in his well-known book Road to Justice, stated thatpress is the watchdog to see that every trial is conducted fairly, openly and above board, but thewatchdog may sometimes break loose, pointing out facts and incidences which the authoritiesdo not wish the public to know, and has to be punished [dubiousdiscuss]for 'misbehaviour'.[11]Withthe same token Clause (2) of Article 19 of the Indian constitution enables the legislature toimpose certain restrictions on free speech under following heads:

I. security of the State,

II. friendly relations with foreign States,

III. public order,

IV. decency and morality,

V. contempt of court,

VI. defamation,

VII. incitement to an offence, and

VIII. sovereignty and integrity of India.

Reasonable restrictions on these grounds can be imposed only by a duly enacted law and notby executive action.[12]

Security of the State: Reasonable restrictions can be imposed on the freedom of speech andexpression, in the interest of the security of the State. All the utterances intended to endangerthe security of the State by crimes of violence intended to overthrow the government, waging ofwar and rebellion against the government, external aggression or war, etc., may be restrained inthe interest of the security of the State.[13]It does not refer to the ordinary breaches of publicorder which do not involve any danger to the State.[4]

Friendly relations with foreign States: This ground was added by the Constitution (FirstAmendment) Act of 1951. The State can impose reasonable restrictions on the freedom ofspeech and expression, if it tends to jeopardise the friendly relations of India with other State.

Public order: This ground was added by the Constitution (First Amendment) Act, 1951 in orderto meet the situation arising from the Supreme Court's decision in Romesh Thapar, s case (AIR1950 SC 124). The expression 'public order' connotes the sense of public peace, safety andtranquillity.

In Kishori Mohan v. State of West Bengal, the Supreme Court explained the differencesbetween three concepts: law and order, public order, security of State. Anything that disturbspublic peace or public tranquillity disturbs public order.[14]But mere criticism of the governmentdoes not necessarily disturb public order.[15]A law punishing the utterances deliberately tendingto hurt the religious feelings of any class has been held to be valid as it is a reasonablerestriction aimed to maintaining the public order.[16]

It is also necessary that there must be a reasonable nexus between the restriction imposed andthe achievement of public order. In Superintendent, Central Prison v. Ram Manohar Lohiya(AIR1960 SC 633), the Court held the Section 3 of U.P. Special Powers Act, 1932, which punished aperson if he incited a single person not to pay or defer the payment of Government dues, asthere was no reasonable nexus between the speech and public order. Similarly, the courtupheld the validity of the provision empowering a Magistrate to issue directions to protect thepublic order or tranquillity.[17]
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Decency and morality: The word 'obscenity' is identical with the word 'indecency' of the IndianConstitution. In an English case of R. v. Hicklin,[18]the test was laid down according to which it isseen 'whether the tendency of the matter charged as obscene tend to deprave and corrupt theminds which are open to such immoral influences'. This test was upheld by the Supreme Courtin Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881). In this case the Court upheldthe conviction of a book seller who was prosecuted under Section 292, I.P.C., for selling and

keeping the book Lady Chatterley's Lover. The standard of morality varies from time to time andfrom place to place.

Contempt of court: The constitutional right to freedom of speech would not allow a person tocontempt the courts. The expression Contempt of Court has been defined Section 2 of theContempt of Courts Act, 1971. The term contempt of court refers to civil contempt or criminalcontempt under the Act. But judges do not have any general immunity from criticism of their

judicial conduct, provided that it is made in good faith and is genuine criticism, and not anyattempt to impair the administration of justice. In In re Arundhati Roy((2002) 3 SCC 343), theSupreme Court of India followed the view taken in the American Supreme Court (Frankfurter, J.)in Pennekamp v. Florida(328 US 331 : 90 L Ed 1295 (1946)) in which the United StatesSupreme Court observed: If men, including judges and journalists, were angels, there would beno problem of contempt of court. Angelic judges would be undisturbed by extraneous influencesand angelic journalists would not seek to influence them. The power to punish for contempt, asa means of safeguarding judges in deciding on behalf of the community as impartially as isgiven to the lot of men to decide, is not a privilege accorded to judges. The power to punish forcontempt of court is a safeguard not for judges as persons but for the function which theyexercise. InE.M.S. Namboodripad v. T.N. Nambiar((1970) 2 SCC 325; AIR 1970 SC 2015),the Supreme Court confirmed the decision of the High Court, holding Mr. Namboodripad guiltyof contempt of court. In M.R. Parashar v. Farooq Abdullah((1984) 2 SCC 343; AIR 1984 SC615.), contempt proceedings were initiated against the Chief Minister of Jammu and Kashmir.But the Court dismissed the petition for want of proof.

Defamation: The clause (2) of Article 19 prevents any person from making any statement thatinjures the reputation of another. With the same view, defamation has been criminalised in India

by inserting it into Section 499 of the I.P.C.

Incitement to an offence: This ground was also added by the Constitution (First Amendment)Act, 1951. The Constitution also prohibits a person from making any statement that incitespeople to commit offence.

Sovereignty and integrity of India: This ground was also added subsequently by the Constitution(Sixteenth Amendment) Act, 1963. This is aimed to prohibit anyone from making the statementsthat challenge the integrity and sovereignty of India.

In the opinion ofBrajesh Rajak,author of Pornography Law: XXX Must not be Tolerated,"Freedom of speech and expression can not be an excuse for distribution of indecent andimmoral content to average person of the society".[19]

Practical constraints and curtailments[edit]

Freedom of speechandexpression,which enable an individual to participate in publicactivities. The phrase, "freedom of press"has not been used in Article 19, though freedomactivists, as well as most scholars and industrialised jurisdictions throughout the worldrecognise that freedom of expression includes freedom of press. Reasonable restrictionscan be imposed in the interest of public order, security of State, decency or morality.
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According to the estimates ofReporters Without Borders,India ranks 120th worldwide in pressfreedom index (press freedom index for India is 39.33 for 2007).[20]TheIndian Constitution,while not mentioning the word "press", provides for "the right to freedom of speech andexpression"(Article 19(1) a). However this right is subject to restrictions under subclause (2),whereby this freedom can be restricted for reasons of "sovereigntyand integrity of India, thesecurity of the State, friendly relations with foreign States, public order, preserving decency,

preserving morality, in relation to contempt of court,defamation,or incitement to an offence".Laws such as theOfficial Secrets ActandPrevention of Terrorism Act[21](POTA) have beenused to limit press freedom. Under POTA, person could bedetainedfor up to six months beforethe police were required to bring charges on allegations for terrorism-related offences. POTAwas repealed in 2004, but was replaced by amendments to UAPA.[22]The Official Secrets Act1923 remains in effect.

For the first half-century of independence, media control by the state was the major constrainton press freedom.Indira Gandhifamously stated in 1975 thatAll India Radiois "a Governmentorgan, it is going to remain a Government organ..."[23]On 26 June 1975, the day after the so-called emergency was declared in violation of the natural rights of Indian citizens,theMumbaiedition ofThe Times of Indiain its obituary column carried an entry that read

"D.E.M O'Cracy beloved husband of T.Ruth, father of L.I.Bertie, brother of Faith, Hope andJustica expired on 26 June".

With the liberalisation starting in the 1990s, private control of media has increased, leading toincreasing independence and greater scrutiny of government. OrganisationslikeTehelkaandNDTVhave been particularly influential, e.g. in bringing about the resignation ofpowerfulHaryanaministerVenod Sharma.In addition, laws likePrasar Bharatiact passed inrecent years contribute significantly to reducing the control of the press by the government.

----------------------------------

The Directive Principles of State Policyare guidelines to the central and state governments

of India, to be kept in mind while framing laws and policies. These provisions, contained in Part

IV of theConstitution of India,are not enforceable by any court, but the principles laid downtherein are considered fundamental in the governance of the country, making it the duty of the

State[1]to apply these principles in making laws to establish a just society in the country.

The concept of Directive Principles of State Policy was borrowed from the Irish Constitution.Themakers of theConstitution of India were influenced by theIrish nationalist movement.Hence,the Directive Principles of the Indian constitution have been greatly influenced by the DirectivePrinciples of State Policy.[2]The idea of such policies "can be traced to theDeclaration of theRights of Man proclaimed byRevolutionary France and the Declaration of Independence by the

American Colonies."[3]The Indian constitution was also influenced by theUnitedNationsUniversal Declaration of Human Rights.
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.wikipedia.org/wiki/Directive_Principles_in_India#cite_note-State-1http://en.wikipedia.org/wiki/Constitution_of_Indiahttp://en.wikipedia.org/wiki/Prasar_Bharatihttp://en.wikipedia.org/wiki/Venod_Sharmahttp://en.wikipedia.org/wiki/Haryanahttp://en.wikipedia.org/wiki/NDTVhttp://en.wikipedia.org/wiki/Tehelkahttp://en.wikipedia.org/wiki/The_Times_of_Indiahttp://en.wikipedia.org/wiki/Mumbaihttp://en.wikipedia.org/wiki/Freedom_of_expression_in_India#cite_note-23http://en.wikipedia.org/wiki/All_India_Radiohttp://en.wikipedia.org/wiki/Indira_Gandhihttp://en.wikipedia.org/wiki/Freedom_of_expression_in_India#cite_note-22http://en.wikipedia.org/wiki/Arbitrary_detentionhttp://en.wikipedia.org/wiki/Freedom_of_expression_in_India#cite_note-pota-21http://en.wikipedia.org/wiki/Prevention_of_Terrorism_Act,_2002http://en.wikipedia.org/wiki/Official_Secrets_Act_(India)http://en.wikipedia.org/wiki/Defamationhttp://en.wikipedia.org/wiki/Sovereigntyhttp://en.wikipedia.org/wiki/Indian_Constitutionhttp://en.wikipedia.org/wiki/Freedom_of_expression_in_India#cite_note-20http://en.wikipedia.org/wiki/Reporters_Without_Borders


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Characteristics

DPSPs aim to create social and economic conditions under which the citizens can lead agood life. They also aim to establish social and economic democracy through awelfarestate.They act as a check on thegovernment,theorized as a yardstick in the hands ofthe people to measure the performance of the government and vote it out of power if it

does not fulfill the promises made during theelections.The Directive Principles are non-justiciablerights of the people. Article 31-C, inserted by the 25th Amendment Act of 1971seeks to upgrade the Directive Principles.[6]If laws are made to give effect to theDirective Principles over Fundamental Rights, they shall not be invalid on the groundsthat they take away the Fundamental Rights. In case of a conflict between FundamentalRights and DPSP's, if the DPSP aims at promoting larger interest of the society, thecourts shall have to uphold the case in favour of the DPSP.[7]The Directive Principles,though not justiciable, are fundamental in the governance of the country. It shall be theduty of the State[1]to apply these principles in making laws.[8]Besides, allexecutiveagencies should also be guided by these principles. uEven thejudiciary has to keepthem in mind in deciding tcases.[9][10]

Directives

The directive principles ensure that the State[1]shall strive to promote thewelfare of thepeople by promoting a social order in whichsocial,economic and political justice is informed inall institutions of life. Also, the State shall work towards reducingeconomic inequality as well asinequalities in status and opportunities, not only among individuals, but also among groups ofpeople residing in different areas or engaged in different vocations.[11]The State shall aim forsecuring right to an adequate means of livelihood for all citizens, both men and women as wellasequal pay for equal work for both men and women. The State should work to preventconcentration of wealth and means of production in a few hands, and try to ensure thatownership and control of the material resources is distributed to best serve the commongood.Child abuse and exploitation of workers should be prevented. Children should be allowedto develop in a healthy manner and should be protected against exploitation and against moral

and material abandonment.[12]

The State shall provide freelegal aid to ensure that equalopportunities for securing justice is ensured to all, and is not denied by reason of economic orother disabilities.[13]The State shall also work for organisation of villagepanchayats and helpenable them to function as units of self-government.[14]The State shall endeavour to providetheright to work,to education and to public assistance in cases ofunemployment,old age,sickness and disablement, within the limits of economic capacity,[15]as well as provide for justand humane conditions of work and maternity relief.[16]

The State should also ensure living wage and properworking conditions for workers, with fullenjoyment of leisure and social and cultural activities. Also, the promotion ofcottageindustries in rural areas is one of the obligations of the State.[17]The State shall take steps topromote their participation in management of industrial undertakings.[18]

Also, the State shall endeavour to secure auniform civil code for all citizens,[19]

and provide freeand compulsory education to all children till they attain the age of 14 years.[20]This directiveregarding education of children was added by the86th Amendment Act, 2002.[21]It should andwork for the economic and educational upliftment ofscheduled castes,scheduledtribes andother weaker sections of the society.[22]

The directive principles commit the State to raise the level of nutrition and the standard of livingand to improve public health, particularly by prohibiting intoxicating drinks and drugs injurious tohealth except for medicinal purposes.[23]It should also organise agriculture and animal
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husbandry on modern and scientific lines by improving breeds and prohibiting slaughterofcows,calves,other milch and draught cattle[24][25]It should protect and improve theenvironment and safeguard the forests and wild life of the country.[26]This directive, regardingprotection of forests and wildlife was added by the42nd Amendment Act, 1976.[27]

Protection of monuments, places and objects of historic and artistic interest and national

importance against destruction and damage,

[28]

and separation of judiciary from executive inpublic services[29]are also the obligations of the State as laid down in the directive principles.Finally, the directive principles, in Article 51 ensure that the State shall strive for the promotionand maintenance of international peace and security, just and honourable relations betweennations, respect for international law and treaty obligations, as well as settlement of internationaldisputes by arbitration.[30]

Implementation

The State has made and is making many efforts to implement the Directive Principles. TheProgramme of Universalisation of Elementary Education and thefive-year plans has beenaccorded the highest priority in order to provide freeeducation to all children up to the age of 14years. The 86th constitutional amendment of 2002 inserted a new article, Article 21-A, into the

Constitution, that seeks to provide free and compulsory education to all children aged 6 to 14years.[21]Welfare schemes for the weaker sections are being implemented both by the Centraland State governments. These include programmes such as boys' andgirls'hostels forscheduled castes'orscheduled tribes'students.[31]The year 1990-1991 wasdeclared as the "Year of Social Justice" in the memory ofB.R. Ambedkar.[32]The governmentprovides free textbooks to students belonging to scheduled castes or scheduled tribes pursuingmedicine and engineering courses. During 2002-2003, a sum ofRs. 4.77crore was released forthis purpose.[33]In order that scheduled castes and scheduled tribes are protected fromatrocities, the Government enacted theThe Prevention of Atrocities Act,which provided severepunishments for such atrocities.[34]

Several Land Reform Acts were enacted to provide ownership rights to poor farmers.[35]Up toSeptember 2001, more than 20,000,000 acres (80,000 km) of land had been distributed to

scheduled castes, scheduled tribes and the landless poor. The thrust of banking policy in Indiahas been to improve banking facilities in the rural areas.[TheMinimum Wages Actof 1948empowers government to fix minimum wages for employees engaged in variousemployments.[37]TheConsumer Protection Act of 1986 provides for the better protection ofconsumers. The act is intended to provide simple, speedy and inexpensive redressal to theconsumers' grievances, award relief and compensation wherever appropriate to theconsumer.The Equal Remuneration Actof 1976, provides for equal pay for equal work for bothmen and women.[The Sampoorna Grameen Rozgar Yojanawas launched in 2001 to attain theobjective of gainful employment for the rural poor. The programme was implemented throughthePanchayati Raj institutions

Panchayati Raj now covers almost allstates and Union territories.One-third of the total number

of seats have been reserved for women in Panchayats at every level; in the case ofBihar,halfthe seats have been reserved for women.Legal aid at the expense of the State has been madecompulsory in all cases pertaining to criminal law, if the accused is too poor to engage alawyer.Judiciary has been separated from the executive in all the states and Union territoriesexceptJammu and Kashmir andNagaland.

India's Foreign Policy has also to some degree been influenced by the DPSPs. India has in thepast condemned all acts ofaggression and has also supported theUnited Nationspeace-keeping activities. By 2004, theIndian Army had participated in 37 UN peace-keepingoperations. India played a key role in the passing of a UN resolution in 2003, which envisaged
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_1986http://en.wikipedia.org/wiki/Directive_Principles_in_India#cite_note-37http://en.wikipedia.org/wiki/Minimum_wagehttp://en.wikipedia.org/wiki/Directive_Principles_in_India#cite_note-36http://en.wikipedia.org/wiki/Directive_Principles_in_India#cite_note-35http://en.wikipedia.org/wiki/Directive_Principles_in_India#cite_note-34http://en.wikipedia.org/wiki/Scheduled_Caste_and_Scheduled_Tribe_(Prevention_of_Atrocities)_Act,_1989http://en.wikipedia.org/wiki/Directive_Principles_in_India#cite_note-pgA45-33http://en.wikipedia.org/wiki/Crorehttp://en.wikipedia.org/wiki/Rupeehttp://en.wikipedia.org/wiki/Directive_Principles_in_India#cite_note-32http://en.wikipedia.org/wiki/B.R._Ambedkarhttp://en.wikipedia.org/wiki/Directive_Principles_in_India#cite_note-pgA44-31http://en.wikipedia.org/wiki/Scheduled_tribeshttp://en.wikipedia.org/wiki/Scheduled_Castes_and_Tribeshttp://en.wikipedia.org/wiki/Hostelhttp://en.wikipedia.org/wiki/Directive_Principles_in_India#cite_note-86amact-21http://en.wikipedia.org/wiki/Education_in_Indiahttp://en.wikipedia.org/wiki/Five-Year_Plans_of_Indiahttp://en.wikipedia.org/wiki/Directive_Principles_in_India#cite_note-30http://en.wikipedia.org/wiki/Directive_Principles_in_India#cite_note-art50-29http://en.wikipedia.org/wiki/Directive_Principles_in_India#cite_note-28http://en.wikipedia.org/wiki/Directive_Principles_in_India#cite_note-42amact-27http://en.wikipedia.org/wiki/Constitution_of_India#Amendmenthttp://en.wikipedia.org/wiki/Directive_Principles_in_India#cite_note-art48A-26http://en.wikipedia.org/wiki/Directive_Principles_in_India#cite_note-24http://en.wikipedia.org/wiki/Directive_Principles_in_India#cite_note-24http://en.wikipedia.org/wiki/Calveshttp://en.wikipedia.org/wiki/Cows


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better cooperation between theSecurity Council and the troop-contributing countries. India hasalso been in favour of nuclear disarmament.

Amendments

Changes in Directive Principles require aConstitutional amendment which has to be passed bya special majority of both houses of theParliament.This means that an amendment requiresthe approval of two-thirds of the members present and voting. However, the number ofmembers voting should not be less than thesimple majority of the house whether theLokSabha orRajya Sabha.

Article 31-C, inserted into the Directive Principles of State Policy by the 25th AmendmentAct of 1971 seeks to upgrade the DPSPs If laws are made to give effect to the DirectivePrinciples over Fundamental Rights, they shall not be invalid on the grounds that they takeaway the Fundamental Rights.

Article 45, which ensures Provision for free and compulsory education for children,wasadded by the86th Amendment Act, 2002

Article 48-A, which ensures Protection and improvement of environment and safeguarding

of forests and wild life,

[26]

was added by the42nd Amendment Act, 1976

FREEDOM OF THE PRESS& OTHER CONSTITUTIONAL PROVISIONS TO

MASS MEDIA

Freedom of the press is included in the wider freedom of expression mentioned in Article

19 (1) (a) of the Indian constitution.

Cases that ruled so are:

Express Newspapers Vs Union of India Case, 1958

Sakal Papers (P) Ltd. Vs Union of India, 1962

Romesh Thappar Vs State of Madras, 1950

Freedom of expression means the freedom to express

Ones own feelings

Views of others

By any means

Censorship

In the Brij Bhushan Vs State of Delhi, 1950, the Supreme Court ruled against pre-

censorship.

1951: First Amendment Act included public order as a reasonable restriction for 19 (1) (a)

Censorship could be imposed for a limited peri odin the interests of:

Maintenance of public order

Decency and morality (mainly cinema)

Freedom of press in India:
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is not absolute

press does not enjoy any special privileges

The press therefore not immune from

i. Ordinary forms of taxation

ii. Application of general laws relating to industrial relations

iii. The regulation of the conditions of services of its employees

Restrictions for the State:

State cannot subject Press to laws that will infringe upon Art 19 (1) (a) or which

would curtail circulation

Cannot put prohibitive/ excessive burdens that will restrict circulation

Cannot impose specific tax deliberately to restrict circulation

Cannot fix prices (subscription)

Cannot give circulation upper limit

In the Romesh Thappar Vs State of Madras, 1950, the Supreme Court ruled:

Without liberty of circulation, the publication would be of little value

Supreme Court annulled the Newspaper (Price and Page) Act 1956 which limited

the number of pages and number of subscribers for a newspaper.

Sources of Restrictions on the freedom of the press

I. Emergency provision

Article 352 of the Indian constitution provides for the suspension of fundamental

rights during emergency

Article 358 suspends the operation of Article 19 during emergency. Laws in

contravention can be made during emergencybecome inoperative after

emergency is lifted.

Article 359 authorises President to issue an order suspending Article 32

June 26, 1975: internal emergency in India

Press during emergency

1. June 25, 1975: Power supply to newspaper offices cut

2. June 26: Cabinet approves pre-censorship under Rule 48 of Defence of India

Rules. Pre-censorship could be imposed in the interest of:i. Defence of India

ii. Civil defence

iii. Public safety

iv. Maintenance of public order

v. Sufficient conduct of military operations

3. Films were either censored or banned (Aandhi -banned)


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4. Pre-censorship was imposed on newspapers, journals, radio, TV, telex,

telegrams, news agencies, teleprinter services, foreign correspondents

5. Ad, cartoons and comic strips

6. The then PM, Indira Gandhi proposed that:

i. Press Council be abolished

ii. Review of advertising policyiii. Take away housing facilities of journalists

iv. Deport foreign correspondents who did not toe the line

7. Foreign papers and journals critical of emergency were confiscated (Times,

Newsweek)

II. The Contempt of Courts Act, 1971

First C of C Act: 1926

C of C Act: 1952

C o C Act 1971, amended in 1976.

C of C Act 1971: codifies concepts & terminology, codifies law laid down in many

court rulings, provides definition for civil & criminal contempt.

Contempt of Court is one of the reasonable restrictions mentioned in article 19(2).

Sec. 2 of the contempt of courts Act 1971, defines contempt of court:

means civil contempt or criminal contempt

a) civil contemptmeans wilful disobedience to any judgement, decree, direction,order, writ (or other proceeds of a court or wilful breach of an undertaking given

to a court).

b) Criminal contemptmeans the publication (whether by words, spoken or written,

or by signs or by visible representations) of any matter that

(i) scandalizes or tends to scandalize, lowers or tends to lower, the authority of any

court,

(ii) prejudices/interferes or tends to interfere with any judicial proceeding,

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the

administration of justice in any other manner.

Article 129Supreme Court shall be a court of record & shall have the powers of such

a court including the power to punish for contempt of itself (and of subordinate courts

also)


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Article 215Every High Court shall be a court of record & shall have all the powers of

such a court including the power to punish for contempt of court for itself (& lower

courts).

Article 142 (2)gives SC the power to investigate & punish any contempt of itself.

Article 225High Court gives powers to investigate any contempt of itself.

Contempt of court should be used carefully.

Section 13 of the C of C Act, 1971, says that all contempts are not punishable; it should

be such that it substantially interferes or tends substantially interferes with thedue course

of justice.

Freedom of press and contempt of court

In Subash Chand & S.M. Aggarwal, 1984 case, the court ruled that fair & accurate

report of judicial proceedings and a fair criticism of a judicial act is not contempt.

In E.M.S Namboodenpad Vs. T. N. Nambiar, 1984 case, it was observed that

freedom of speech shall always prevail except where contempt of court is

manifested, mischievious or substantial and that

Bonafide criticism cannot be seen as contempt of court.

However, in the Md. Vamin & O.P. Bansal Case, 1982, the court ruled thatdefence of truth or justificationcannot be given by an editor in a contempt of

court case procedure (as in a defamation case)

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PARLIAMENTARY PRIVILEGES TO PARLIAMENT & PRESS

Applies to both houses of the parliament and

The state legislature

Art 105 (1) and (2); and Art 194 (1) and (2) deal with

freedom of speech

right of publication of members

According to Clause 3 of Articles 105 and 194, the above privileges are independent of part

III of the constitution.


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In case of a conflict between the parliamentary privileges and fundamental rights, the

former shall prevail, subject only to Arts 20-22 and 32.

There are two groups of privileges:

1. Individual: Enjoyed individually by members

2. Collective: Enjoyed collectively as a House

1. Individual privileges:

Freedom from arrest, during the sitting of a committee or chamber of

which he is a member, upto 40 days of before and after such a meeting:

Exceptions: civil cases only, can be detained under preventive

detention.

Exemption from attendance in court as witness/jurors, without permission

of the House, when Parliament is in session

Freedom of speech within the House, subject to rules framed by the House,

under its power to regulate its internal affairs

Exception: cannot talk against the conduct of a judge in

the discharge of his duties, unless the context is a motion to remove the

judge.

2. Collective privileges:

Right to publish debates and proceedings, and restrain others from doing

the same

Right to exclude others from the House/ restrict entry

Right to regulate internal affairs of the House and to decide matters

arising within its walls. Right to publish parliamentary misbehaviour

Right to punish members and outsiders for breach of privilege

Thus each House has the power :

To exclude strangers form the galleries at any time

To regulate its internal affairs

To punish members and outsiders for breach of its privileges in the form of

admonition, reprimand, or imprisonment.

The press is not immune to parliamentary privileges.

---------------------------------------------------------------------------------------------------

The India Government

The modern India Government was originally formed through the Constitution ofIndia. The Constitution was approved by India's law making officials, officially


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known as the Constituent Assembly, on November 26, 1949 and went into effect onJanuary 21, 1950. The reason this important document was created such as shorttime ago, is becauseIndia was ruled by the British and British approved princelystates for the time period prior to the constitution's creation. The government ofIndia is officially known as the Union Government, but is also sometimes referred toas the Central Government as well. Whatever you call it; it is the powerfulgoverning authority of the Indian union, which is made up of 28 states and sevenunion territories. Together, thesestates and union territories are known as theRepublic of India.

The India Government leaders are located in New Delhi, which is the capital ofIndia. It's what Washington, DC is to the United States. Like the United States,there are three branches of the government in India that were established in orderto check and balance the overall government. These three branches of governmentare the executive, the legislative and the judiciary branches, just like in the UnitedStates.

The executive branch is led by the President; he is Head of State and eitherexercises his powers directly, or through officers that rank beneath him. Onedifference in the government of India's executive branch versus the United Statesexecutive branch is that India's also has a Prime Minister, similar to Britains.

The President selects a Prime Minister that he believes will be able to successfullylead the Lok Sabha, which is the Lower House of the People in India, representingthe greaterpopulation. The person selected for this important role is usually thesame person that leads India's majority party. This is one of the most powerfulpositions in the India Government.

The President also appoints the members of the Council of Ministers and he delivers

instru ctive portfolios to these members based on the direction or opinion of thePrime Minister. The Council of Ministers stays in power during the President's term,but the Council of Ministers has to remain in the favor of the Lok Sabha. ThePresident can not dismiss Council Ministers on his own because it could lead to aconstitutional crisis. So, the Council of Ministers cannot be dismissed as long asthey have the support of the majority in the Lok Sabha.

The Legislative branch, or Parliament, includes the lower house, called the LokSabha, and the upper house, called the Rajya Sabha. The president works with thehouse to make, change and enforce policies over the Republic of India. The LowerHouse and the Upper House are similar to the Congress and the Senate of the

United States, as far as their role to the Republic of India.

The Judicial branch is lead by India's Supreme Court and it includes 21 High Courts,and numerous civil, criminal and family courts at the district level. The primary civiland criminal laws that govern India are written in the legislation of the Parliament.Indian Civil Procedure Code, Indian Penal Code, and the Criminal Procedure Codeare examples of these. Each union and individual state government includes its ownexecutive, legislative and judicial branches too. Thus, the India Government isduplicated on a more local level to the people who reside in each district of India.
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India's legal system applies to both the federal and individual state governments.It's based on the English Common and Statutory Law, which was directly influencedthrough the British Occupation. India does accept International Court of Justice

jurisdiction, with several reservations, and is now an independent nation. In recentyears, India has bulked up its military weaponry and army to address China, whobecame its biggest threat in the region after tension between India and Pakistanrecently died down.

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LEGISLATIVE

The main Functions and Powers of the Indian Parliament are :

Functions and Powers of the Indian Parliament

The Constitution of India enumerates the powers and functions of the Indian Parliament inChapter II of Part V of the constitution. Like the British counterpart, the Parliament of India isnot a fully sovereign legislature. It does not enjoy unlimited and absolute powers like that of theBritish Parliament. It is a creation of the Constitution. It has no natural growth like that of theBritish Parliament. As it is created by the Constitution, it is bound by the provisions of theConstitution.

The powers and functions of the Indian Parliament may be generalized in the following heads.While discussing these powers it should be borne in mind that they are enjoyed and exercised byboth the Houses of Parliament with a few difference

(a) Law making powers:

The Parliament of the Union Government is competent to legislate on all matters that areenumerated in the Union List and the Concurrent List of the Constitution. In the ConcurrentList, the Parliament and the State Legislatures have joint jurisdiction. However, in case ofconflict over any law made under the Concurrent List, the Union Law will prevail upon the StateLaw provided the State Law has not received the earlier assent of the President. The UnionParliament is also competent to make law over the State List under the followingcircumstances:-

(i) When the proclamation of Emergency is in operation the Parliament can make law in anyitem included in the State List. In case of the declaration of President's Rule in any State under

Article 356 of the Constitution, the Parliament is competent to legislate on any matter includedin the State List (Article 250).

(ii) In normal times when Rajya Sabha passes a resolution by two-thirds majority of its memberspresent and voting that it is necessary in the national interest that Parliament should make law

with regard to any matter enumerated in the State List, then Parliament is competent to makelaw in that matter for the whole or any part of India (Article 249).

(iii) The Parliament is competent to legislate on any matter pertaining to the State List if suchlegislation is deemed necessary for the implementation of international treaties or agreementsconcluded with foreign States (Article 253).

(iv) If the legislatures of two or more States pass a resolution to the effect that it is desirable tohave a parliamentary law in any matter in the State List, then the Parliament can make law forthose States (Article 252).


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Except in the above-mentioned occasions, the Parliament of India is not competent to make lawin the State List. If at any time, the Parliament encroaches upon the rights of the States, theSupreme Court can prevent such encroachment of the Parliament through its power of JudicialReview. The Parliament must make law in accordance with the provisions of the Constitution.

(b) Financial Powers:

In the financial domain the Parliament is the supreme authority. Not a single paisa can be spentby the Executive without parliamentary sanction. The budget is annually prepared by theCabinet and it is submitted for the approval of the Parliament. The Parliament also approves allproposals of the Union Government to impose taxes.

Money Bills can originate only in the Lok Sabha. After they have been passed by the Lok Sabha,they are sent to the Rajya Sabha for approval. Within 14 days the Rajya Sabha is expected to giveits consent. Thus the power of the Rajya Sabha is limited with regards to money Bills.

Further, to keep a vigil on the way the Executive spends the money granted by the legislature,there are two Standing Committees of the Parliament. They are the Public Accounts Committeeand the Estimates Committee. These two Committees exercise legislative control over the

Executive on behalf of the Parliament. There are certain items of expenditure included in theBudget which are not votable in the Parliament. These items include salary of the President, theJudges of the Supreme Court, and the members of the Union Public Service Commission etc.They are charged from the Consolidated Fund of India.

(c) Control over the Executive

The Parliament keeps a day-to-day watch over the activities of the Executive. As ours is aparliamentary system of Government, the Executive is responsible to the Parliament for all actsof omissions and commissions. TheParliament may remove a Cabinet out of power by a vote of no confidence. It may reject a bill ora budget proposal of the Cabinet.

Members of the Parliament have a right to ask questions and supplementary question to theMinisters. Any lapses or mishandling on the part of the Government can be exposed in theParliament. Adjournment motions may be moved to discuss serious administrative lapses.Through adjournment motions, matters of public importance can be brought to the notice of theGovernment by the members of the

Parliament. There is a Committee on ministerial assurances appointed by the Parliament to seethat the promises made to the Parliament by the respective ministers are fulfilled. In this matterthe Lok Sabha is more powerful than the Rajya Sabha.

(d) Amending Power:

The Parliament is competent to amend the Constitution. Both the Houses have equal powers so

far amendment of the Constitution is concerned. A bill to amend the Constitution may originateeither in the Rajya Sabha or in the Lok Sabha. Unless it is passed by both the Houses with therequired majority, the amendment cannot be effective.

(e) Judicial Functions

The Constitution vested in the Parliament the power to impeach the President, the Vice-President, and the other High Federal Officers like the Judges of the Supreme Court and HighCourts, Auditor-General, Members of the Public Service Commission etc. Impeachment is a

judicial trial of the Parliament to remove high federal officers. While the resolution for


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impeachment is moved in one House, the other House sits as a Court of Trial. Approval of boththe Houses is necessary for any impeachment.

Further, the Parliament possesses punitive powers to punish its members, and non-memberswho have broken the privileges of the House. This power is not ordinarily subject to the reviewof the Court. In a Parliamentary system of Government, legislative privileges are immune from

judicial control.

(f) Electoral Function

The Parliament participates in the election of the President and the Vice-President. It also electssome of its members to various Committees of the Parliament. The Vice- President is elected by

both the Houses of the Parliament. He is removable by a resolution of the Rajya Sabha agreed toby the Lok Sabha.

(g) Deliberative Function:

The Parliament is a forum for deliberation on questions of public importance. It also serves as aventilating chamber of public grievances. The Parliament is a mirror of national life. Whateverhappens in various parts of the country can be discussed in its forum. It is often described as "anation in miniature". Of all the functions of the Parliament this is an important function in ademocratic country. Resolutions passed by the Parliament after days of deliberation may havethe force of law. The Parliament represents the consensus of public opinion in the countryChurchill once described the British Parliament as "the citadel of liberty". The Parliament inIndia also protects the rights and liberties of the people.

EXECUTIVE

The tenure of the chief executive varies in different countries. In countries hereditary chiefs, thetenure is life long. But in case of elective executives the tenure from state to state. The tenure ofthe office of the President in India is five years and that of the U. S. A. is four years.

The Austrian President is elected for six years. In Italy, France and Ireland the Pre is elected forseven years. The Chairman of the Swiss Federal Council is elected for one year.

The tenure of the chief executive should neither be too long nor too short. If the is very long, theexecutive may become an autocrat. In case of a short-term executive continuity in policy can bemaintained. So, it is desirable that the tenure of the chief ex should be four or five years.

Functions of Executive

In the modern state a variety of functions are performed by the executive, as stated below.

1.Administrative Function:

The administration function of the executive includes the following.

(a) Execution of Laws and Judicial Decision:

The executive is entrusted with the responsibility to execute laws made by the legislature, anddecisions of the Judiciary coming in the forms of judgements of courts.

(b) Maintenance of Law and Order:

Another important function of the executive is to maintain law and order. The police are mainlyin change of this task.


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(c) Policy-Formation:

In respect of policy-making, the executive has a crucial role. It prepares the blue-print of thepolicy which goes to the legislature in the form of bill. The policy emerges after the bill is passed

by the legislature and the head of state gives assent to it.

(d) Appointment and Promotion:

The political executive enjoys the power of appointment, promotion, removal and suspension ofcivil servants.

2.Diplomatic function:

It means the conduct of foreign relations. The executive appoints diplomatic representatives toforeign states and receives representatives from them. Treaties and international conventionsare negotiated and concluded by the executive, often subject to the approval of one or bothhouses of the legislature.

3.Military Function:

The chief executive, in most of the states, is made the supreme commander of the defenceforces. The power of waging war and concluding peace with any foreign state is assigned to theexecutive. In times of emergency and grave national crisis the chief executive may declaremartial law and suspend the rights of citizens.

4. Financial and Economic Function(a) Budget-prepa

Constitution - Unit 4 - Notes

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Transcript of Constitution - Unit 4 - Notes