Briefly the fundamental rights, Under the Constitution of India

 What are the fundamental rights guaranteed under the Constitution of India? Distinguish those from the Directive Principles of State Policy conceptually.

Distinguish fundamental rights and directive principles?

The fundamental rights are contained in Part-III of the Constitution. The original Constitution had seven fundamental rights but right to property was deleted from this list by 44th Constitution (Amendment) Act, 1978 and currently there are only six fundamental rights as follows-

1. Right to Equality- Articles 14-18

2. Right to Freedom- Articles 19-22

3. Right against Exploitation- Articles 23-24

4. Right to Freedom of Religion- Articles 25-28

5. Cultural and Educational Rights-Articles 29-30

6. Right to Constitutional Remedies- Articles 32

Some fundamental rights are available only to Indian citizens like Article 15,16,19 and 29 and remaining fundamental rights are available to all the persons.

Fundamental Rights and Directive Principles are essential elements of Indian Constitution. Fundamental Rights are given under Part III (Article 12-35) while Directive Principles are given under Part IV (Article 36-51) of the Indian Constitution.

Describing the importance of DPSP, Dr. Ambedkar said that “if any Government ignores them, they will certainly have to answer them before the electorate”.

The main difference between Fundamental Rights and Directive Principles is regarding justiciability. Fundamental Rights are enforceable by law, but Directive Principles are not enforceable by law.

Fundamental Rights are such rights which are essential for the overall development of human being but the Directive Principles are directives which are supposed to be applied by the Sates while framing any policy.

Following are distinction between these both:

i. The DPSP require to be implemented by Legislation, but, at the same time no existing Law or Legal Right can be violated under the colour of following a Directive.

ii. The Courts can declare any law as void on the ground that it contravenes any of the Fundamental Rights.

iii. The Courts are not competent to compel the Government to carry out any DPSP or to make any law for that purpose.

iv. The DPSP per se do not confer upon or take away any Legislative Power from the appropriate Legislature,

v. Although it is the duty of the State to implement the DPSP, yet the State can do so only subject to the limitation imposed by the Constitution itself i.e., Article 13(2) prohibits the State from making any law which takes away or abridges the Fundamental Rights conferred by Part III and the Directive Principles therefore cannot override this categorical limitation.

In Kesvananda Bharati v. State of Kerala AIR 1973 SC 1461, the Supreme Court held that ‘fundamental rights and directive principles aim at the same goal of bringing about a social revolution and establishment of a welfare State and they can be interpreted and applied together.

Justice Bhagawati in Minerva Mills Ltd. v. Union of India MR 1980 SC 1789 observed that ‘the Indian Constitution is founded on the bed-rock of the balance between Parts III & IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution.

This harmony and balance between Fundamental Rights and Directive Principles is an essential feature of the basic structure of the Constitution. The goals set out in Part IV have to be achieved without the abrogation of the means provided for by Part III.

It is in this sense that Parts III & IV together constitute the core of our Constitution and combine to form its conscience.

Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution”.

Applicability of doctrine of severability under Article 13 (1) of the Constitution of India

 Doctrine of Severability states that when a part of the statute is declared unconstitutional, only the unconstitutional part is to be removed and the remaining valid part will continue to valid. The objective is to retain the Act or legislation in force by removing only the void portion and retaining the rest.

The doctrine of severability rests on a presumed intention of the legislature that if a part of a statute turns out to be void, that should not affect the validity of the rest of it, and that that intention is to be ascertained from the terms of the statute.

It is the true nature of the subject-matter of the legislation that is the determining factor, and while a classification made in the statute might go far to support a conclusion in favour of severability, the absence of it does not necessarily preclude it.

It is a feature usual in latter day legislation in America to enact a clause that the invalidity of any part of the law shall not render the rest of it void, and it has been held that such a clause furnishes only prima facie evidence of severability, which must in the last resort be decided on an examination of the provisions of the statute.

In Superintendent, Central Jail v. Ram Manohar Lohia, 1960 SCR (2) 821 Supreme Court said that the doctrine of severability vis-a-vis the fundamental rights is sought to be supported on the basis of the wording of Article 13 (1) of the Constitution.

Under that Article laws, in so far as they are inconsistent with the provisions of Part III, ire void only to the extent of such inconsistency. But this implies that consistent and inconsistent parts of a law are severable.

After a review of the law on the doctrine of severability Venkatarama Ayyar, J. summarised the principles governing the said doctrine in R.M.D. Chamarbaugwalla v. Union of India, 1957 SCR 930 at pages 950-952 thus:

1. In determining whether the valid parts of a statute are separable from the invalid parts thereof it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. Vide Corpus Juris Secundum, Vol. 82, P 156; Sutherland on Statutory Construction Vol. 2 PP. 176-177.

2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable. Vide Cooley’s constitutional Limitations, Vol. 1 at PP. 360-361; Crawford on Statutory Construction, PP. 217-218.

3. Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. Vide Crawford on Statutory Construction, PP. 218-219.

4. Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so then and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety.

5. The separability of the valid and invalid provisions of a statute does not depend on whether the law is enacted in the same section or different sections; (Vide Cooley’s Constitutional Limitations, Vol. I, PP. 361-362); it is not the form, but the substance of the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the sating of the relevant provisions therein.

6. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation. Vide Sutherland on Statutory Construction, Vol. 2, p. 194.

7. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. Vide Sutherland on Statutory Construction, Vol. 2, PP. 177-178.

Supreme Court of India in Kihota Hollohon v. Zachilhu and others, AIR 1993 SC 412 said that the Doctrine of Severability applies in a case where an otherwise validly enacted legislation contains a provision suffering from a defect of lack of legislative competence and the invalid provision is severable leaving the remaining valid provisions a viable whole.

This doctrine has no application where the legislation is not validly enacted due to non-compliance of the mandatory legislative procedure such as the mandatory special procedure prescribed for exercise of the constituent power.

It is not possible to infuse life in a still born by any miracle of deft surgery even though it may be possible to continue life by removing a congenitally defective part by surgical skill.

Even the highest degree of surgical skill can help only to continue life but it cannot infuse life in the case of still birth.

Doctrine of Eclipse

 What is the doctrine of eclipse? Can it be applied to a post Constitutional law? Discuss with the aid of case-law.

Write note on doctrine of eclipse.

What do you mean by doctrine of eclipse? Discuss also the case laws on the subject.

As per the Doctrine of Eclipse, any law inconsistent with fundamental rights is not totally void but that is overshadowed by the fundamental rights and after removing that inconsistency (vanishing eclipse) the entire law becomes valid.

In other words, a law which violates fundamental rights is not void ab initio but is only unenforceable in the court of law. It is over-shadowed by the fundamental rights and remains dormant.

This doctrine is related with Article 13(1) of the Constitution of India and it was evolved by the Supreme Court in the case of Bhikaji Narain Dhakras v. State of M.P., 1955 SCR (2)589.

Supreme Court of India in Deep Chand v. State of Uttar Pradesh, 1959 SCR Supl. (2)8 observed that there is no scope for applying the doctrine of eclipse to a case where the law is void ab initio in whole or in part.

Supreme Court of India in P. Ratinam v. Union of India, 1994 SCC (3) 394 held Section 309 of the Indian Penal Code, 1860 unconstitutional. Hence, the section was under eclipse. However, a constitutional bench in Gian Kaur v. State of Punjab, 1996 SCC (2) 648 reversed this decision and held section 309 as constitutional whereby the eclipse was removed and it became operational again.

The doctrine of eclipse can be invoked only in the case of a law valid when made but a shadow is cast on it by supervening constitutional inconsistency or supervening existing statutory inconsistency; when the shadow is removed the impugned Act is freed from all blemishes or infirmity.

Short note on judicial review

 Judicial review is the power of the courts to examine the legislative, executive and administrative actions of the government to determine whether such actions are consistent with the Constitution. Judicial review is usually considered to have begun with the assertion by John Marshall in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) that the Supreme Court of the United States had the power to invalidate legislation enacted by Congress.

The scope of judicial review is limited both in its availability and function: the role of the court is not to re­make the decision being challenged, or to inquire into the merits of that decision, but to conduct a review of the process by which the decision was reached in order to assess whether that decision was flawed and should be revoked.

The concept of Judicial Review has it foundation on the following constitutional principles:

(i) The Government that cannot satisfy the ‘governed’, the legitimacy of its action cannot be expected to be considered legitimate and democratic and such government also cannot expect to receive the confidence and satisfaction of the governed.

(ii) The government in a democracy is a government of limited powers, and a government with limited powers has to take recourse to a machinery or agency for the scrutiny of charges of legislative views and constitutional disobedience, and such act of scrutiny can be done impartially and unbiasedly only by the court.

(iii) Each citizen in a democracy, who is aggrieved of a legislative Act on the ground of constitutional violation, has the inherent right to approach the court to declare such legislative Act unconstitutional, and void.

(iv) In a federal State, judicial arbitration is inevitable in order to maintain balance between the Centre and the State.

(v) Where the constitution guarantees the fundamental rights, legislative violation of the rights can be scrutinized by the court alone.

(vi) The legislature being the delegate and agent of the sovereign people has no jurisdiction and legal authority to delegate essential legislative function to any other body.

Judicial Review is one of the cardinal features of Indian constitutional system. India has constitutional and limited democracy which imposes limitations on the power of the government and banks on majority rule to avoid tyranny and arbitrariness.

There is no express provision in the Constitution of India declaring the Constitution to be the supreme law of land, because they believed that when all the organs of government, federal and State, owe their origins to the constitution and derive powers there form, and the Constitution itself cannot be altered except in the manner specifically laid down in the Constitution.

The Indian Judiciary has also power of judicial review under the provisions of Articles 13,32, 131,136, 143,226 and 246.

In S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124 P.N. Bhagwati, C.J. declared that it was well settled that judicial review was a basic and essential feature of the Constitution. If the power of judicial review was absolutely taken away, the Constitution would cease to be what it was.

The Court further declared that if a law made under Article 323-A (1) were to exclude the jurisdiction of the High Court under Articles 226 and 227 without setting up an effective alternative institutional mechanism or arrangement for judicial review, it would be violative of the basic structure and hence outside the constituent power of Parliament.

In Kihoto Hollohan v. ZachIIIhu, 1992 Supp (2) SCC 651 the Constitution Bench, while examining the validity of para 7 of the Tenth Schedule to the Constitution which excluded judicial review of the decision of the Speaker/Chairman on the question of disqualification of MLAs and MPs, observed that it was unnecessary to pronounce on the contention whether judicial review is a basic feature of the Constitution and para 7 of the Tenth Schedule violated such basic structure.

In L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 a larger Bench of seven Judges unequivocally declared that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure”.

Form new States and alter areas, boundaries or names of existing State?

 Article 3 of the Indian Constitution deals with the formation of new States and alteration of areas, boundaries or names of existing States.

It states that Parliament may by law:

(a) Form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;

(b) Increase the area of any State;

(c) Diminish the area of any State;

(d) Alter the boundaries of any State;

(e) Alter the name of any State;

In other terms, Indian Parliament under Article 3 of the Constitution of India may form or establish a new State in following ways:

i. By separation of territory from any State or

ii. By uniting two or more States or

iii. By uniting any parts of States or

iv. By uniting any territory to a part of any State.

Further, this Article provides that no Bill for this purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.

If the concerned State Legislatures, to whom the Bill has been referred, do not express their views within prescribed period, the Bill may be introduced in Parliament. In Babulal v. State of Bombay, AIR 1960 SC 51, the Court held that if the State Legislature has expressed its views within time/extended time, the Parliament is not bound to accept or act upon the views of the State Legislature.

Basic features of Constitution of India

 The basic features of Indian Constitution are:

1. Written and Lengthiest Constitution:

It is the written lengthiest constitution in the world.

2. Preamble:

At the outset of the constitution, there is a Preamble, which is important in several aspects. It narrates the ideals (Justice, Equality, Individual Dignity, Fraternity and National Unity) and aspirations of the Indian people.

3. Republic:

India is a Republic. As a Republic nation, people have a right to form their own government and to elect the head of the government.

4. Government of the People:

It upholds a form of government which is of the people, by the people and for the people (as said by Abraham Lincoln). People have the right to elect their own rulers.

5. Fundamental Rights and Fundamental Duties:

It has given Six Fundamental Rights to all the citizens. The government cannot take away any of these rights. When these rights are violated, the Judiciary would come to the rescue of the citizens. In addition to the Fundamental Rights, it has stated eleven Fundamental Duties to be performed by the citizens.

6. Secularism:

As per the principle of secularism, the government must be impartial towards all the religions followed by its citizens. There shall be no ‘State Religion’. At the same time, the government guarantees freedom of faith and worship to all citizens. However, the government has the right to restrict religious freedom when it disturbs public peace, as well as law and order.

7. Independent Judiciary:

Under the democratic system, all citizens are equal before the law. There cannot be different sets of laws for the different groups of people. The judiciary is expected to provide justice to all the sections of the society. Therefore, the Judiciary is given adequate powers. The Supreme Court acts as a guardian of the Constitution and protector of little man.

8. Universal Adult Franchise:

The system of election of representatives by all the adults of a country is called as Universal Adult Franchise. In India, an adult means one who is above the age of eighteen.

9. Equal Rights to Women:

Here, both men and women have been given equal rights. The exploitation of women is considered an offence. Both get equal pay for equal work.

10. A Welfare State:

A State which aims at providing social and economic security to all its citizens is known as a Welfare State. Social Security must be provided to the citizens so that they would live a peaceful life. They should have employment and adequate income, food, clothes, shelter and health care.

The aged and destitute must get proper protection. It protects the weaker sections from exploitation, and provides equal social, economic and political opportunities to all citizens.

11. It is federal in form but unitary in spirit.

12. It is neither too rigid (as some provisions can be amended by a simple majority) nor flexible (as some provisions require special majority for amendment)

Order of Arrest, Seizure and Custody

 Order of Arrest, Seizure and Custody

#Arrest

#Remand

#custody

#Judicial custody

#Arrest

Arrest is the taking into custody of another person by a police officer or a person authorized by law

Remand

The term remand is used in law only after a person has been arrested and handed over to the court.

Remand means the court takes an arrested person into judicial custody. Police officers have no power to remand a person only the court has.

custody

Self-control is self-control.

There is a difference between arrest and custody.

Arrest in custody Arrest does not have custody. This means that all arrests and custody do not come under arrest.

Once a person is arrested by the police, the arrested person can be detained in two ways.

Judicial custody and police custody

CRPC section 57 states that when a police officer arrests a person in connection with an offence, the arrested person shall not be detained in the police station for more than 24 hours.

Article 22 of the Constitution of India makes it clear that detaining a person for more than 24 hours is a violation of human rights and is against fundamental rights.

If someone is detained illegally in the police station, it is called illegal custody.

Section 97 of the Code of Criminal Procedure says that the Judicial Magistrate may appoint a member of the court to search the police station to search for the person detained in the police station.

A person who has been illegally detained in a police station can be brought to court and filed a writ petition in the High Court under Article 226 of the Constitution of India and in the Supreme Court under Article 32.

These 24 hours are for the investigation of the case itself and not for beatings and torture.

Travel time for arresting the arrested person and bringing him to court is not taken into account.

If the arrested person is a sick person or a pregnant woman, the police department can keep them under their control for 24 hours by admitting them to the hospital and after that they have to get the permission of the judicial referee.

CrPC section 76 states that an arrested person must be handed over to a judicial magistrate within 24 hours.

Section 167 CrPC allows the court to take the arrested person into judicial custody after the police hand over the arrested person to the judicial magistrate.

The police officer investigating the case may file a petition with the Judicial Magistrate to hand over the arrested person to the custody of the police station on the grounds that there is a need for further investigation of the arrested person.

A judicial arbitrator can order detention for up to 15 days, often 15 days of detention is not granted but within 7 days.

Police confinement cannot be ordered for bailable offences.

While issuing the order of detention, the Judicial Magistrate should ask the detainee whether he has any objection.

 An arrested person can be subjected to torture only if ordered to be locked up in the police station.

A police station may refuse to order detention or may order detention on necessary conditions if serious objection is raised that even death may occur.

A lawyer may be present during detention. From time to time the person under custody must be produced before the court.

A judicial arbitrator may impose conditions not to be kept in the police station during night hours.

The reason why the police officers take the arrested person to the police station is to beat and torture him to find out the truth. In some cases, it is common to automatically accept a crime that has not been committed and to accept it because it is forced to accept it.

Judicial custody

Judicial custody means that the arrested person is under the control of the court rather than the police. Placement under court supervision often means placement in prison.

A person under court control should not be kept in jail cells in police stations without the permission of the court.

The court can order only up to 15 days to imprison the person arrested under the control of the court. If the prosecution requests an extension of the court's custody on the grounds that the investigation of the case has not been completed, the court shall grant an extension of custody once every fifteen days.

However, if the investigation is not completed within 90 days, the court should refuse to extend the custody and release the arrested person on bail.

 The prosecution must complete the investigation within 60 days for the offense punishable by up to ten years.

It does not apply to the Detention Act. Under the Detention Act, an arrested person can be kept in a police station for more than 24 hours. CrPC does not apply to this.

"Preamble" of the Constitution of India

 What are the essential features of the Preamble of the Constitution of India?

Write notes on Preamble to the Constitution of India.

The Preamble of the Constitution sets out the aims and aspirations of the people of India and these have been translated into the various provisions of the Constitution. The Preamble of the Constitution is as under-

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty sixth day of November, 1949, do HEREBY ADOPT,

ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

The Preamble, being the key to know the intention of constitution framers, enshrines the ideas and philosophy of the constitution. Its importance is in role to be played in interpretation of statues, also in the interpretation of provisions of the Constitution.

Constitution should be read and interpreted in the light of grand and novel vision expressed in the preamble. The ultimate aims of the Constitution framers was to have a welfare State and an egalitarian society projecting the aims and aspiration of the people of India who made the extreme sacrifice for attainment of the country’s freedom.

It is valuable to note that the Preamble was adopted by the Constituent Assembly after the draft Constitution has been approved.

The idea was that the Preamble should be in conformity with the provisions of the Constitution and express in a few words the philosophy of the Constitution. After the transfer of power, the Constituent Assembly became sovereign, which it reflected in its words “give to ourselves this Constitution” in the Preamble.

It is also implied that the Preamble emanated from the people of India and sovereignty lies with them.

Allahabad High Court in U.P. State Electricity Board v. State of U.P., (1995) IIIIJ 469. All quoted that the aims and object intended in the preamble of the Constitution indicate the aspirations of the people.

Supreme Court in Kesavananda Bharathi v. State of Kerala, (1973) 4 SCC 225 overruled its earlier decision (In Re: The Berubari Union, AIR 1960 SC 845) and made it clear that the Preamble is a part of the constitution and is subject to the amending power of the Parliament as any other constitutional provisions, subject to basic structure of the constitution. However, it is not an essential part of the constitution; still it serves as an important guide to interpret the true spirit of the Constitution.

Constitution of India called the ‘Living Law’?

 The Constitution of India called the ‘Living Law’ because it has been framed in a way to adjust to the changing times and the situations of the country. It accepts modifications and amendments easily according to the needs and requirements of present and future.

A day before Constitution of India was formally adopted on November 26, 1949 after nearly three years of intense deliberations, Dr. Bhimrao Ambedkar delivered one of his finest speeches. Summing up the work of the Constituent Assembly, he said, “However good a Constitution may be, it is sure to turn out to be bad because those who are called to work it happen to be a bad lot. However, bad a Constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot.”

It is very easy to bring about an amendment in the Indian Constitution as compared to the Constitutions of other countries like the American Constitution and Australian Constitution.

It is extremely difficult to bring about an amendment in the American Constitution. But our Constitution makers were very careful that it would neither be very difficult for the government to change the constitution nor be extremely easy which would otherwise lead to constitutional breakdown.

Indeed, the provisions for amendment is what makes a constitution a living document, and successive governments have not been shy of using it. So far the Indian Constitution has been amended 101 times and there are plenty more on the way.

Thus, the Indian Constitution changes with changing times and hence, it is known as a Living law.

“The Preamble to the Constitution sets out the aims and aspirations of the people of India”. Critically examine the above statement.