BAOIAM is an EdTech company established in 2021 and successfully running for the last 2 years. They would love to connect with the great minds and creative personalities who can bring change to education. Baoiam provides online learning and master classes in multiple domains like Product Management, Digital Marketing, Content writing, and much more.
Roles & Responsibilities
Responsibilities include But Are Not Limited To
Help draft and edit the contract templates
Drafted various court documents, invoices, and enclosures at attorneys’ requests.
The legal intern may also conduct client training, perform legal research as needed, and support smaller projects as requested by the Intel lawyers responsible for providing legal support
Assisted in putting together a standard form of a confidentiality agreement
Organized legal memoranda and client correspondence.
Researched documents and publications for details that would establish evidence.Proofed documents and submitted them to attorneys for review.
Produced retainer agreements, contact letters, and various publications and handouts for clients
Performed client intake and client interviews
Prepared motions and interrogatories
Conducted intake interviews to spot legal issues for presentation at case acceptance
Observed and participated in client meetings, trials, mediations, and outreach
Eligibility
Candidate must be pursuing a Master’s Degree or Ph.D. degree in Law or a related field.
1 year of legal experience which may include internships or freshers can also apply.
Working with confidential documents and under confidentiality obligations.
Contract formation, preparation, negotiation, review, and drafting skills.Identifies key risk areas in a contract.
Contract drafting and negotiation.
Proficient in Microsoft Office products including Word, Excel, and PowerPoint.
Perks
Permanent work from home
Certificate of Internship
Letter of Appraisal & Letter of Recommendation (performance based)
Flexible work timings
Performance-based Incentives, rewards, and much more.
Disclaimer: All information posted by us on Lexpeeps is true to our knowledge. But still, it is suggested that you check and confirm things on your level.
For regular updates on more opportunities, we can catch up at-
Adv. Aranya Moulick is looking for an intern for April 2023.
About the Advocate
Mr Moulick is practising before various Courts in Delhi, having offices situated in both New Delhi & Kolkata. He regularly appears before the Hon’ble Supreme Court of India, Delhi High Court, District Courts, NCLT, NCLAT, NCDRC, Consumer Fora, etc. His practice areas include Arbitration ( International & Domestic), Consumer, Civil, Criminal, Labour, Family, Telecom Disputes, Company Law, and IPR Matters. He deals with drafting and executing commercial and non-commercial agreements for Media, Sports, and Entertainment houses for asset evaluation and due diligence, reviewing and negotiating a high volume of contracts and other related documents, including but not limited to master agreements, service agreements, licensing agreements, material transfer agreements, transmission agreements, consulting agreements, procurement, and confidentiality agreements.
Disclaimer: All information posted by us on Lexpeeps is true to our knowledge. But still, it is suggested that you check and confirm things on your level.
For regular updates on more opportunities, we can catch up at-
Laxmi Kant Pandey, an advocate practising in the Supreme Court of India, wrote a letter in the form of a complaint regarding various welfare agencies and social organisations indulging in various malpractices through the adoption of Indian children by foreign parents. It was found out that the letter was based on a detailed investigation report carried out by a reputed foreign magazine called “The Mail.” It was alleged that when foreign parents adopt Indian children, they are prone to long, tedious journeys and are ill-treated by placing them in shelter homes. Moreover, they are prone to be treated as beggars and prostitutes and other sexual harassment and exploitations. This letter came to be recognized as a writ petition on 1st September 1982. A notice was issued by the Supreme Court to the Indian Council of Social Welfare, Indian Council of Child Welfare, and the Government of India to assist the court in answering the writ petition by stating the principles and rules to decide the matter of adoption by foreign parents as well as to lay down the guidelines to ensure the maximum safety and welfare of the child while being adopted to foreign countries by foreign parents.
Written Submissions and Later Developments
On 30th September 1982, the first set of reports and written arguments based on the court’s notice was submitted by the Indian Council of Social Welfare. Various essential suggestions and recommendations were laid down in the report, which the court must take care of while setting out the guidelines and rules for approving the adoption law. Many organizations like Barnes Framfoer Allt Adoption (Swedish organization), S.O.S Children’s villages of India, etc., and social welfare communities voluntarily expressed their desire to submit their reports and arguments to help the court and participate in the court’s hearing.
The writ petition was further adjourned to 9th November 1982 as the court issued an order allowing these organizations to submit their arguments. As Indian Council for Child Welfare and Indian Council for Social Welfare were already engaged in offering the adoption of Indian children abroad, the Supreme Court directed the Union of India to gather the submissions and required information from every other organization except these two.
Union of India, Indian Council for Child Welfare, and Indian Council for Social Welfare were also asked to provide the court with the names of foreign agencies that are engaged in aiding foreign parents to find Indian children.
By 9th November 1982, the Supreme Court recognised eight specified institutions and permitted them to submit of the affidavit before 27th November 1982. The State of West Bengal was asked to submit its affidavit by the Supreme Court before 9th November 1982. Also, a quarterly report regarding the orders made in the last five years in the Guardians and Wards act, 1890, entrusting the custody of Indian children to foreign parents, was asked to be submitted by the court to the Superintendent of Tees Hazari courts. The final hearing of the writ petition was adjourned to 1st December 1982. The first judgment was passed in the year 1984 followed by a supplement judgment dated 27th September 1985 stating the norms and guidelines for inter-country adoptions.
ISSUES RAISED
Whether the Honourable Supreme Court should accept the writ petition or reject it in the name of no substantial law being involved considering the severity of the issue raised.
Whether the Honourable Supreme Court should provide more laws for better clarity after affirming the fact that the laws existing with respect to inter-country adoption are not sufficient.
LAWS RELATED
Guardians And Wards Act
Certain rights and duties of the guardian are covered under the Guardians and Wards Act of 1890.
Section 7 gives the court the authority to issue a guardianship order. According to this clause, the court may appoint guardians for the benefit of minors. A guardian will be able to look after the minor and their belongings. The court may terminate any guardian. The court can also remove the guardian who is chosen by the court
Section 8 of this act discusses the child’s welfare and states that the child’s welfare should be the primary motive for adoption. The procedures and norms to be followed in the matter of adoption to safeguard the children’s rights were stated in this act.
Section 9 of the Guardians and Guardians Act 1890 gives the court jurisdiction to consider the application. If the application concerns the guardianship of a minor, the court in which the minor’s guardian resides enjoys jurisdiction.
If the application involves the property of a minor, the district court may have jurisdiction either where the minor lives or where the property is located.
Section 11 outlines the application qualification process. This provision states that the court will set a preliminary hearing once it is convinced of the basis for the proceedings. The notification was sent as the C.P.C. (Civil Procedure Code 1908) authorized.
Section 17 lists factors to take into account when choosing a guardian. The court will decide based on the minor’s interests, development, and overall case conditions. In accordance with section 17 (5) of the statute mentions that the court cannot appoint a guardian contrarily or oppose the minor’s wishes.
Section 26 concerns excluding the minor from its ambit. If the child disappears from or is separated from the possession of guardians whom the court appoints, then the court will issue an order for the return of the ward to the guardians.
Article 14
Article 14 of the Indian constitution discussed equality before the law and equal protection of the law. Clause (3) of Article 15 is an exception and states that special provisions can be made for children and women. Article 15 was brought to light in this case.
Article 24
Article 24 abolishes child labour and states that children under 14 should not be made to work in hazardous industries, mines, or factories. This article discussed the importance of child welfare and safeguarding them from being exploited in this case.
Article 39
Article 39(e) and (f) mention that the state is required to guide its policies towards ensuring that young children are not molested and that they are not coerced into careers that are out of character for the children’s age, ability, and capacity to grow in a positive way out of financial necessity.
CARA- Central Adoption Resource Authority
It is a legislative body with the authority to oversee and control both domestic and international adoptions of Indian children. It serves as the coordinating body for such adoptions. With its affiliated, reputable adoption agencies, CARA deals with the adoption of orphan, abandoned, and surrendered children. The parents who want to adopt a kid must be authorised by a social organisation or child welfare organisation approved by the nation’s government where the international pair lives. It is a legislative body with the authority to oversee and control domestic and international adoptions of Indian children. It serves as the coordinating body for such adoptions. With its affiliated, reputable adoption agencies, CARA deals with adopting orphan, abandoned, and surrendered children. The parents who want to adopt a kid must be authorized by a social organization or child welfare organization approved by the nation’s government where the international pair lives.
ANALYSIS
The adoption of children is a concept that has existed in Indian culture since time immemorial. The importance placed on having a “firstborn son” in Hinduism resulted in the notion of adopted sons to conduct family rituals and rites. The established prevalence of adoption in India has ensued in drafting laws, such as the Hindu Adoption and Maintenance Act 1956[1], to ensure that the adoption process is overseen by agencies entrusted with regulating it. However, the pre-existing adoption laws failed to foresee inter-country adoption’s emergence.
Inter-country adoption is a way of adoption that developed due to the improved connectivity of countries with the advent of technology and better transportation methods. It allowed foreign parents to adopt underprivileged children from other countries, usually from countries with lower economic statuses, to provide them with a better life and opportunities. The United Nations validated it in the Draft Guidelines of Procedures Concerning Inter-Country Adoption in 1981. It was seen as a method to ensure that the underprivileged children would receive a congenial environment to grow up in, as they would with their biological parents. Though the thought behind the idea was noble, the lack of regulations made it susceptible to human trafficking, wherein the system in place would be misused. Thus, many children who underwent the process of inter-country adoption would end up getting trafficked and subjected to inhumane living conditions, a stark contrast to the life they were promised.
The case of Laxmi Kant Pandey vs Union of India[2], which shed light on the severe lack of regulations surrounding inter-country adoption and the need for a legal framework to protect the rights of the adopted children, saw the judiciary take part in judicial activism to ensure that the process of inter-country adoption from India would be as shielded from malicious activities as possible. This was done by ensuring that every step of adoption from India would be precise and regulated.
In the judgment for Laxmi Kant Pandey vs Union of India, the Supreme Court laid out guidelines for inter-country adoption. It thus ushered in a new era concerning adoption in India, wherein the government had till then not taken much cognisance of the lack of guidelines regarding inter-country adoption. The judgment, which was delivered by a three-judge bench headed by Justice P.N Bhagwati, recognised the lack of safeguards with respect to inter-country adoption and chose to formulate a detailed set of guidelines to ensure that the adoption of children from India by foreign guardians would only occur under exceptional circumstances, and only if it was deemed that the children were adopted in a hospitable environment, similar to what they would ideally receive from their biological parents.
The bench made one explicitly clear: adopting the child would put the child’s welfare first and foremost. This was in conjunction with the United Nations Declaration of the Rights of the Child[3], where a child’s right to be loved and grow up in an environment where they can receive the affection they deserve was recognised. The judgment stated that the primary focus of the adoption agencies should be to ensure that the child could be reunited with its biological parents, as the care provided by the child’s biological parents would be the ideal environment for the child to grow up in. To ensure this, the adoption agencies should take the necessary steps to track the biological parents and attempt to reunite the child with them. If needed, social service agencies can facilitate these families in reuniting as, in many instances, the children may be given up by their parents due to financial difficulties or mental incapacity to take care of the child. Only if all attempts by the social service agencies fail after 3 months can the adoption agencies move to the next step: aiding the adoption process of the child domestically
The court noted that, as the welfare of the children is what is essential, the next best step other than reuniting the children with their biological parents would be to find adoptive parents for the child in India, as they would thus grow up in the same environment that they are familiar with and would not have to deal with the stress of adapting to a new country’s culture and norms at their tender age. Securing adoptive parents from the native country would be done for two months. At that point, if the child has not been adopted domestically, the adoption agencies will allow applications for inter-country adoption.
As there is no statutory enactment in India providing for the adoption of a child by foreign parents or laying down the procedures to be followed in such cases, the court has instructed that the provisions of the Guardian and Wards Act 1890[4] should be used to facilitate such adoption. This act provides for the appointment of a guardian by a court for the care of a minor or a person of unsound mind.
In the guidelines issued for foreign adoption in the country, the apex court stated that all applications from foreigners seeking to adopt a child must be sponsored by a social or child welfare agency recognised or licensed by the government of the country in which the foreigner resides. It is important to note that social welfare agencies in India working in inter-country adoption or institutions where the juvenile court commits children should not entertain applications directly from foreigners. The bench also emphasised the child’s age’s importance in inter-country adoption cases. The court has stated that a child should be adopted before the age of three in such cases, allowing the child to assimilate more easily into the new environment and culture.
The process for foreign adoption of Indian children involves applying to the court for appointment as guardian, with notice sent to a child welfare agency. The agency must be licensed and maintain a register of children proposed for adoption. The court must be satisfied that the child is legally available for adoption, and the application must be sponsored by a recognised agency in the foreigner’s country of residence.
The judgment in Laxmi Kant Pandey vs Union of India was instrumental in ensuring that inter-country adoption would not fall victim to malpractices like human trafficking and thus helped secure the rights of adopted children in India. Following the judgment, the Government of India instituted the Central Adoption Resource Agency (CARA). CARA serves as a centralised source of information for monitoring both domestic and international adoptions.
This judgment also influenced the creation of the Juvenile Justice (Care and Protection) Act 1986, revised in 2000[5]. This new legislation considered the provisions of the United Nations Convention on the Rights of the Child[6] and other pertinent international treaties. The law adopted a child-centric approach, ensuring that children requiring care and protection receive appropriate care, protection, treatment, and rehabilitation.
Though no formal legislation was enacted to solely overlook the process of inter-country adoption in India, the precise nature of this judgment has ensured that the scope for malpractices with the process of inter-country adoption has decreased gradually and has thus made the process more secure and favourable for the adopted children and the foreign guardians.
CONCLUSION
The case of Laxmi Kant Pandey v. Union of India was and will serve to be the landmark judgement not only for the statutes and amendments that the judgment brought in but also from a petition letter turning into a writ petition. The significance is that the modification of the judgement in 1987 clarified the guidelines. This case also became sensational, starting from one petitioner, i.e. a litigator of S.C., to six petitioners filing six applications. Also, how Indians and other executives came to know about the scam of illegal sale of babies under the cap of Inter-country adoption. This case is considered one of the substantial ones as it not only dealt with exploitation or trafficking that happens in adopting Indian Children by foreigners but also explained how the guidelines and provisions are to be followed. This was due to population restraint and various policies like the one-child policy by developed countries. So this increased the scope for various illegal and non-reputable adopting agencies that sell Indian children for reasonable sums, and the adopted child ended up as a beggar and prostitute. The case will serve and is serving a scrutinised adoption procedure to adopt Indian children, which will create fear in the minds of illegal or profit-making adoptive agencies.
The case of Laxmi Kant Pandey vs Union of India brought in the most productive and safe guidelines and procedures like the three to five-tier adoptive process. Starting from whether the adoptive parents can care for the child to create a fixed deposit for the adopted child. The court also ensured that the child being adopted would be able to adapt to the surroundings and culture of the adoptive country and the people around. The other significant outcome of the judgment is how the maintenance of registers by the Social Welfare Department of India and the Embassy of the country the child is being adopted to keep an eye on the address and other details of the adopted kid from time to time ensure the safety kid. Then the modified judgment also solved and provided remedies for a quick adoption process yet a safer one as there was a delay in inter-country adoption. The big question is whether the judgment is efficacious on inter-country adoption. This case also served as an inevitable precedent that led to the introduction of the Central Adoption Resource Agency (CARA) and later following a few more judgments leading to the Juvenile Justice (Care and Protection of Children). Also, the statistics show that during the past four years, close to 2,134 Indian children have been adopted by parents from five countries.
This case is an excellent illustration of how procedure development in public interest litigation has eased standing limitations in India, leaving the judicial framework more accessible to disadvantaged members of society. It also serves as an illustration of the Indian Supreme Court’s judicial activism. The Supreme Court did not think twice about setting specific instructions to control adoptions and safeguard kids from prostitution and enslaved labour when faced with a legislative gap on a significant social concern. In totality, talking about inter-country adoption is like a double-edged sword with advantages and disadvantages On the one hand, international adoption may be a lifeline for kids who have been abandoned, orphaned, or abused. It may give kids’ devoted families access to higher education and superior medical care. It can also allow escaping poverty, prejudice, and other harsh conditions.
Conversely, international adoption may be troublesome if not conducted ethically and openly. The global adoption system has seen child trafficking, corruption, and abuse. Additionally, some critics contend that international adoption may contribute to exploiting marginalised people and perpetuating system imbalances.
Endnotes
The Hindu Adoptions And Maintenance Act, 1956, No. 78, Act of Parliament, 1956 (India).
Laxmi Kant Pandey v. Union of India, 1987 AIR 232.
UN General Assembly, Declaration of the Rights of the Child, 20 November 1959, A/RES/1386(XIV).
The Guardians And Wards Act, 1890, Act No. 8 Of 1890.
The Juvenile Justice (Care and Protection of Children) Act, 2000, No. 56, Act of Parliament, 2000 (India).
UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3.
Damodaram Sanjivayya National Law University (DSNLU) is a premier educational institution situated at “NYAYAPRASTHA” Sabbavam 30 km from Visakhapatnam the “City of Destiny.” It caters for the needs of law students and research scholars from across the country. Its mission is to design and deliver legal education and promote academic achievement and excellence in legal research. The University offers a 5-year Integrated B.A. LL.B. (Hons.) Degree, One Year LL.M. Degree (with specialization in Commercial & Corporate Laws, Criminal Laws and Constitutional Laws), PhD and LL.D. Degrees. The University has MOUs for student exchange programs with four prestigious National Law Universities. The University is committed to promoting cultural, legal and ethical values with a view to promote and foster the rule of law and the objectives enriched in the Constitution of India and to improvise the ability to analyze and present for the benefit of the public.
DSNLU JOURNAL OF SCIENCE, TECHNOLOGY AND LAW
The DSNLU Journal of Science, Technology & Law published by the Centre for Intellectual Property Rights and Technology, bearingISSN No- 2583-1208, is a peer-reviewed, double-blind, and open-access journal, it allows papers discussing some seminal themes of IP & Technology aspects of contemporary relevance. The issues explore a wide spectrum of thoughts and through their varied articulations attempt to open up dialogues in diverse domains of application of intellectual property laws and Technology.
Eligibility
DSNLU Journal of Science, Technology & Law is accepting original and unpublished submissions from academicians, professionals, research scholars and students.
Theme
The peer-reviewed journal DSNLU Journal of Science, Technology & Law solicits high-quality articles pertaining to areas of intellectual property law & Technology law.
Submission Guidelines
The authors must follow the guidelines given below
Manuscripts must be accompanied by a cover letter in a separate document containing the following details of the author and co-author(s) (if any): Name; Affiliation / Academic Qualification; Contact Number and e-mail address; Postal address.
The maximum number of authors permitted is two e., one author and one co-author
The manuscript shall not contain the name and affiliation of the author(s).
The manuscript must be accompanied by an abstract of not exceeding 300 words, with five This must be the first page of the submission
Similarity must not exceed 10%
Co-authorship is not allowed in the case of Legislative
All submissions should be made electronically in the form of an MS Word (.doc) file by filling out the google form by 31st May 2023 at 11:59 PM.
The title of the Manuscript must be [Your Name & Category of Submission] – Mahith & Long Article.
The Review Process would take a time period of not less than 12 weeks from the last date of
The decision on the manuscripts will be communicated at the end of the completion of the Review
The body of the manuscript should be in Times New Roman, Size 12 and with 1.5 spacing.
Title of the article Times New Roman, Size 14, Bold – Copyright Infringement in the Digital Era
Main headings with Roman Numbers, Times New Roman, Size 12, Bold – I. Introduction
Sub-headings with Numerical Times New Roman, Size 12, Bold and Italics – Perspectives from India
Sub-headings of Level 2 Times New Roman, size 12, Italics – Lessons Learnt
The citation must be given as a footnote and must conform to The Harvard Bluebook style of citation (21stedition).
The footnotes and references should be in Times New Roman, size 10 and single
Note: The submissions will be rejected outright if they do not comply with the above-mentioned formatting guidelines.
All the Articles Must strictly adhere to the following word Limit Long Articles – 5000 – 8000 Words
Long articles must be comprehensive and contain a rigorous in-depth analysis of the contemporary problem(s) and idea(s) relating to Intellectual Property Rights. It should include identification of lacunae in the existing status quo along with alternatives, suggestions, and references to a range of sources.
Short Articles – 3000 – 5000 Words Short articles should rigorously analyze the contemporary problem(s) and idea(s) relating to Intellectual Property Rights. They should ideally identify lacunae in the existing status quo, provide solutions, and alternative suggestions, and should include references to a range of sources.
Legislative Comment – 2000 – 3000 words The comment should provide a rigorous analysis of a recent legislative instrument. It should examine the objective of the legislation and the legal impact the same is expected to have.
Disclaimer: All information posted by us on Lexpeeps is true to our knowledge. But still, it is suggested that you check and confirm things on your level.
For regular updates on more opportunities, we can catch up at-
Orange & Grey is a full-service law firm with a primary focus on litigation. A Litigation Associate shall be entrusted with the task of managing cases under the guidance of the Partner concerned. The Role of a Litigation Associate is vital in our firm, the success of which depends largely on the dedication, diligence and hard work of the Litigation Associate.
Job Position
Litigation Associate
Responsibilities
Drafting of petitions, applications, affidavits, replies etc.
Doing extensive legal research.
Appearing before Courts along with senior partners or otherwise.
Managing the cases of the firm and ensuring that all tasks or steps required to be taken in any case are completed well before the dates of hearing.
Qualifications
LL.B./ LL.M from a reputed University/College.
LL.M. is desirable but not mandatory.
Minimum 2 years post-qualification experience in litigation.
We would desire the candidate to have excellent verbal and written communication skills.
Time should not be a constraint for the candidate.
Application Procedure
Kindly share your cv at info@orangeandgrey.in
Disclaimer: All information posted by us on Lexpeeps is true to our knowledge. But still, it is suggested that you check and confirm things on your level.
For regular updates on more opportunities, we can catch up at-
Established in 2000, they are a law firm, comprising an expert team of senior lawyers, advocates, and a professional advisory panel with extensive courtroom experience and expertise in compliance issues about corporate law, property law, and economic offenses (white-collar crime).
Duties and Responsibilities
1. Conducting research in fields such as CPC, CRPC, and corporate law 2. Drafting suits, appeals, applications, and legal notices 3. Working on analysis
Disclaimer: All information posted by us on Lexpeeps is true to our knowledge. But still, it is suggested that you check and confirm things on your level.
For regular updates on more opportunities, we can catch up at-
At AKJ Attorneys & Solicitors LLP, they maintain the legacy of personal attention to every client. Dedicated and value-driven, they started this firm 30 years ago, compelled by the sole motto of ‘transparency’. That has been their goal ever since! To achieve that, they ensure that their clients know in-depth about their legal cause as much as they do.
Disclaimer: All information posted by us on Lexpeeps is true to our knowledge. But still, it is suggested that you check and confirm things on your level.
For regular updates on more opportunities, we can catch up at-
The Preamble, which is incorporated into the basic structure of the Constitution, demonstrates the relevance of Article 368[1] even to the present day. Recent amendments to the Constitution concerning fundamental rights are made by Parliament. The Constitution, including its fundamental rights, was initially drafted in response to the socio-political requirements deemed necessary at the time. These requirements may not be sufficient or appropriate for the rapidly expanding socio-economic, technological, and legal climate of today. As a result, it is always necessary to amend the Constitution.
For instance, the 86th Amendment to the Constitution in 2002 made the right to education a fundamental right. In a similar vein, Articles 19(f) and 31 of the Constitution were struck down by the 44th Amendment in 1978, rendering the right to property non-essential. The extent of Article 368’s authority to modify fundamental rights has been interpreted by higher Indian courts.
In Sajjan Singh v. State of Rajasthan[2], for instance, the dissenting opinion stated that Article 368 did not grant the Parliament absolute powers and could not be used indiscriminately to usurp citizens’ fundamental rights. Even though there is a lot of literature on how to look at Article 368 from the point of view of changing the basic structure as a whole, very few recent cases have focused on specifically changing fundamental rights from a legal point of view. Therefore, I as an author want to fill that knowledge gap.
From Shankari Prasad v. Union of India[3]in the First Constitutional Amendment Act of 1951 toWaman Rao v. Union of India[4], I will aim to trace the path. I will sincerely put efforts into determining the reasoning behind the bench’s various decisions challenging or upholding certain Parliamentary amendments to fundamental rights, as well as include their own opinion on the subject in the analysis section. I will be using doctrinal methods for in-depth research, also I will address the principles of the law and the constitution, as well as provide a sociopolitical context for the decisions made.
Introduction
The basic structure of the Indian Constitution includes the fundamental or essential elements that run throughout the document or serve as its foundation. It joins significant arrangements of our Constitution, without the ground standards is outlandish.
Because of its goal of achieving equity, for instance, the 2019 Constitution (One Hundred and Third Amendment) Act, which makes reservations for economically disadvantaged groups, has implications for Article 14 of the Constitution, which is the first fundamental right.
Additionally, on February 4, 2022, the Rajya Sabha debated K.J. Alphons, a BJP Kerala MP,’s proposal to amend the Preamble of the Constitution with a private member’s bill. This was gone against by the RJD MP Manoj Jha and MDMK MP Vaiko in December 2021, on the grounds of abusing the standard in the Kesavananda judgment which was that law and order are essential for the fundamental construction of the Indian Constitution.
As a result, Parliament would be unable to alter any aspect of the Constitution’s fundamental structure. Fundamental rights are included in the Constitution’s fundamental structure in Part III. According to A.V. Dicey, a nation is said to adhere to the rule of law only if it upholds citizens’ liberties. Article 368 of the Constitution both grants and restricts Parliament’s powers to amend specific sections of the Constitution.
Constant Turbulence Between Article 13 and Article 368
First Constitutional Amendment According to Article 13 of the Indian Constitution[5], the Parliament cannot enact laws that restrict, infringe, or violate the fundamental rights outlined in Part III. In contrast, Parliament is empowered to amend specific sections of the Constitution by Article 368. There is still no answer to the question of whether the two articles can coexist harmoniously.
The fundamental rights, Preamble, basic structure, and other elements necessary to regulate the three organs of governance and the Indian people are all encapsulated in the Constitution, according to many. The amount of power Parliament has under Article 368 to amend the Indian Constitution is symbolized by the scissors used to cut or change the cloth into something else.
The Constitution only contained seven fundamental rights when the 1st Constitutional Amendment Act of 1951 was enacted, including the right to property under Articles 31A and 31B[6], which was later eliminated by the 44th Constitutional Amendment.
The introduction of this right at the time of independence was motivated by two reasons: first and foremost, to boost agricultural production; secondly, to provide farmers, cultivators, and the rural population, who were oppressed by the pre-independence zamindari system, with opportunities, land, and job security.
They used socialist-welfarist methods and set limits on how much land a person could own to prevent too much land and power from being concentrated in a few hands; a term that is comparable to constitutionalism. In addition, the State was permitted to legally seize someone’s property instead of providing compensation for rehabilitation following displacement.
A revolutionary policy of the Indian National Congress later led to the establishment of such an exploitative structure to close the gap between the widespread inequality in land ownership. Further changes were set up by the ideological group through the Agrarian Changes Council with Administrator J.C. Kumarappa, overcoming the need to keep the right to property as a key right in a free India.
The 9th Schedule and reasonable restrictions stipulated in Article 19(1)(g)[7] were also included in the First Amendment Act, making it possible for the government to completely or partially acquire the person of any individual. Many citizens were dissatisfied with this Act because it reduced the scope of the most important aspect of the Constitution—the fundamental rights— and gave the Centre too much power to interfere with their lives.
They filed a case against this Amendment Act in the Supreme Court of India because the Parliament did not have the authority to change fundamental rights. This case became known as Shankari Prasad v. Union of India[8], which was a landmark decision.
The Supreme Court held that Article 368 allowed Parliament to amend any of the fundamental rights through Constitutional Amendments and that the changes made by the first Constitutional Amendment stand. This proportion smothered the fight for control between the lawmaking body and the legal executive since they explained that Article 13 simply applied to common privileges and not Protected Revisions.
Numerous state governments incorporated their respective Land Reforms Acts into the 9th Schedule of the Constitution as a result of this decision. This had a significant impact because, normally, any law that violates fundamental rights would be invalidated; however, by including it in the 9th Schedule, the laws would not be invalidated regardless of whether they violate fundamental rights.
InSajjan Singh v. State of Rajasthan[9], this provision of the 17th Constitutional Amendment was challenged. With a 3:2 vote, the five-judge bench decided that the 17th Constitutional Amendment Act does not fall under Article 13. Chief Justice P.B. Gajendragadkar looked into the deeper intentions of the people who wrote the Constitution and concluded that they didn’t want to protect fundamental rights completely because they didn’t put in place a clause that said fundamental rights couldn’t be changed. As a result, both Shankari and Sajjan appeared to favour Article 368 over Article 13.
The disagreeing assessment given by Equity M. Hidayatullah and Equity J. R. Mudholkarset forward the inquiry with regards to whether changing an essential element of the Constitution would be considered as a revision or as a revamping, and thus, whether the ability to roll out this improvement was presented by Article 368.
This reexamining of the composers’ aim drove the Court to allude the case to a bigger seat, forming it into the Golaknath v. State of Punjab[10], which tested the Sajjan choice. By the majority’s decision in Sajjan, the 11-judge bench ruled that the parliamentary powers granted by Article 368 were not absolute and that the Parliament cannot curtail fundamental rights because they are included in Part III, giving them a transcendental status outside of the Parliament’s purview. In addition, it stated that any amendment violating a fundamental right granted by Part III is unconstitutional, restricting the Parliament’s authority and requiring a judicial review.
Golaknath, in contrast to Shankari and Sajjan, prioritized Article 13 over Article 368 because the Supreme Court ruled that Parliament can enact a Constitutional Amendment. This decision by a larger bench of the Supreme Court effectively overturned its previous two decisions and sided with those who opposed amending fundamental rights.
The Parliament’s Comeback
The 24th Constitutional Amendment, which removed the right to property as a fundamental right that had been included in the 1st Constitutional Amendment, was challenged in the courts shortly after Golaknath by a large number of cases brought by the general public. The Supreme Court had to clarify that Golaknath would apply retroactively to previous amendments to prevent all of this chaos.
The Golaknath case narrowed the scope of Parliament’s powers, while the first constitutional amendment restricted the scope of fundamental rights. The decision to enact the 24th Constitutional Amendment, which effectively added a fourth sub-clause to both Articles 13 and 368, was made by Parliament to expand its power to amend.
The 24th Amendment stated in Article 368(4) that if Parliament enacts another Constitutional Amendment, it will not apply to Article 13, whereas Article 13(4) stated the opposite to reverse the Golaknath decision. As a result, following the passage of the 24th Amendment Act, the position was that Parliament could alter any section of the Constitution, including fundamental rights.
Following the 24th amendment, additional constitutional amendments were enacted to repeal previous amendments that restricted citizens’ rights. The 29th Amendment introduced land reforms, while the 25th Amendment restricted property rights. In 1947, the Privy Purse, a payment made to ruling families to give up their powers and merge their princely states, was made obsolete by the 26th Constitutional Amendment. In Kesavananda Bharati v. State of Kerala[11]andGolaknath’s position as well, the 24th, 25th, 26th, and 29th Constitutional Amendments were challenged.
The Supreme Court made it clear that Parliament has the full power to change fundamental rights even before the 24th and 26th Amendments to the Constitution. The 24th Constitutional Amendment, which clarified parliamentary powers, was also upheld by the Court. In this instance, the issue of how much power the Parliament has over the applicability of fundamental rights came up once more. The Court decided to take a balanced approach in support of a harmonious interpretation, which is referred to as the basic structure doctrine. It did not investigate whether Article 13 or Article 368 is more powerful.
The Conflict Between the Judiciary and Former Prime Minister Indira Gandhi: 39th Amendment
On the twelfth of June 1975, Allahabad High Court set out a verifiable choice wherein they suppressed the discretionary triumph of Indira Gandhi’s administration, referring to proof of constituent misrepresentation. They also decided that no one in her cabinet could hold an election office position for six years as punishment.
After that, Indira Gandhi appealed to the Supreme Court. Just one day before the hearing, she enacted the 39th Constitutional Amendment Act and declared a national emergency on the grounds of internal unrest.
The 39th CAA resulted in the addition of Article 329A and the elimination of Article 71. The dispute over the election was still before the Court at this point. According to Article 329A, an independent body would handle all electoral disputes involving the Speaker of the Lok Sabha, the Prime Minister (at the time, Indira Gandhi), the President, or the Vice President.
Because of the death of this CAA, the forthcoming legal dispute against her could as of now not be active. As a result, the 39th CAA’s goal was clear: to allow Indira Gandhi to continue serving as India’s Prime Minister without interference. The constituent outcomes incidentally showed that Janata Dal Party won the political decision overwhelmingly, making Morarji Desai the new State head.
As a result, Indira Gandhi was forced to resign from her position reluctantly. The ruling party then decided to remove Article 329A, which was found to be unconstitutional in the case of Indira Gandhi v. Raj Narain[12], applying the principles of the Kesavananda case, to undo everything the previous government had done wrong, including the 39th CAA and the unsolicited national emergency. Article 71 was likewise brought back, which offered back the powers to attempt constituent questions to the High Court.
The Contextual Constitution
After the emergency period under Indira Gandhi’s rule in 1975, the 42nd Amendment to the Constitution made a significant number of changes to prevent similar power abuses from occurring again. It underwent two significant modifications: To begin, it added sub-clause 4 to Article 31C, which discusses property rights; Second, it added paragraphs 4 and 5 to Article 368.
Article 368(4) stated that Parliament can amend, alter, or remove any fundamental rights under Part III and cannot be subjected to judicial review like Article 31C(4). On the other hand, Article 31C(4) stated that any law could be put in Part IV under the Directive Principles of State Policy (DPSP), even if it violates fundamental rights under Part III. This made it immune to even someone challenging it before the courts.
As a result, Parliament can add or change any provision in Parts III and IV. The Parliament was granted absolute amending powers by Article 368 (5). Since the legal powers were diminished and the decent methodology in Keshavananda, the 42nd Established Alteration was tested in Minerva Mills v. Union of India and Ors[13].
Conclusion
The petitioners in Minerva owned the Bombay Minerva Mills company, which the government occupied under the guise of nationalization. In this case, the Supreme Court ruled that the 42nd Amendment and all of its amendments were unconstitutional because of the following three fundamental characteristics:
First, judicial review, in which rights granted by courts of law are regarded as fundamental features and cannot be suppressed through an amendment by Parliament;
Second, Parliament’s limited amending power, which means that Parliament cannot use its limited amending power to expand its capabilities; Thirdly, the balance between Parts III and IV must be maintained so that DPSPs and fundamental rights do not conflict.
All the Established Alteration Acts after the Kesavananda essential regulation case were tested in Waman Rao v. Union of India[14], where the most relevant issue that emerged under the watchful eye of the court was regardless of whether these alterations sabotaged the fundamental construction.
The Court provided an odd solution to this question by stating that the Kesavananda-based basic structure test will be applied in future amendments and laws. As a result, the Court made it clear that any amendment to the Constitution made after April 24, 1973, can be challenged if it does not adhere to the basic structure doctrine.
As a result, this case reaffirmed the significance of the Kesavananda rule by allowing Parliament to alter a portion of the fabric—representing the Constitution—but not the entire fabric. Even though Parliament had the power to change any part of the Constitution, including the Fundamental Rights, this did not mean that the Constitution’s fundamental structure could be changed even by a Constitutional Amendment. This shows how strong the Constitution still is in the social and political context of today.
Endnotes
The Indian Constitution, Article 368
Sajjan Singh v. State Of Rajasthan, 1965 AIR 845, 1965 SCR (1) 933
Shankari Prasad v. Union of India, AIR. 1951 SC 458
Waman Rao v. Union of India, (1981) 2 SCC 362
The Indian Constitution, Article 13
The Indian Constitution, Article 31(A) and Article 31(B)
The Indian Constitution, Article 19(1)(g)
Ibid 3
Ibid 2
Golak Nath v. State of Punjab, AIR. 1967, SC 1643
Kesavanand Bharti v. State of Kerala, AIR. 1973 SC 1461
Indira Gandhi v. Raj Narain, AIR 1975 S.C. 2299
Minerva Mill Ltd. v. Union of India, (1980) 3 SCC, 625
Ibid 4
This article is written by Shaurya Sharma, a third-year law student from Fairfield Institute of Technology and Management.
In the case of Arup Bhuyan v. State of Assam Home Department and anr. 2023 (SC) 234, the Supreme Court ruled on Friday that membership in an organization deemed unlawful by the Central government is sufficient to establish an offence under the Unlawful Activities Prevention Act (UAPA). In the decision, the court reversed its previous ruling from 2011, in which it had concluded that mere membership in a prohibited organization under the Act could not be grounds for conviction unless it was accompanied by some overt violent behaviour. Whereas the Solicitor General of India represented the respondents, Senior Advocate Sanjay Parikh represented the appellants.
FACTS:
In 2011, a two-judge bench comprising justices Markandey Katju and Gyan Sudha Mishra exonerated Arup Bhuyan and Indra Das for the violations of the Terrorist and Disruptive Activities (Prevention) Act (TADA). The judgment was reached relying on an alleged confession statement and that mere membership in a prohibited organization under the Act could not be considered a valid ground for conviction under the Act.
In State of Kerala v. Raneef, the 2011 Bench made the pertinent observation that, among other things, the American Bill of Rights and a few US Supreme Court decisions maintaining that Section 3(5) of the Act cannot be properly interpreted without violating Articles 19 and 21 of the Constitution. Therefore, a person is not necessarily a criminal just because they belong to a prohibited organization until they use violence, inspire others to use violence, or cause a commotion by using violence or inciting others to use violence. “
When the Union Government filed a request for reference in 2014, a two-judge panel composed of Justices Dipak Misra and AM Sapre referred the case to a larger bench. The matter was finally heard on February 8, 2023, and a conclusion was reached on March 24, 2023.
APPELLANT’S CONTENTIONS:
Senior Attorney Sanjay Parikh argued for an intervenor-NGO that in cases involving substantive rights, such as personal liberty, provisos might be read down even when not directly challenged. He argued that as civil freedoms are protected by the Indian and American constitutions, it would be improper to invalidate the orders that are being challenged because they were based on US court decisions.
RESPONDENT’S CONTENTIONS:
Solicitor General Tushar Mehta, appearing as counsel for the Central Government asserted that it was intrinsically difficult to show formal involvement in prohibited organizations since the requirements mentioned were a barrier and a safeguard. The SG further emphasized that under the current structure, terrorist activity might be permitted as long as it wasn’t ostensibly committed under the banner of groups that were outlawed or considered a terrorist.
The Union government and certain state governments contended that the supreme court’s reading of the UAPA cases had effectively read down the aforementioned proviso by referencing the American Bill of Rights, making it more challenging to fight terrorism. The Central Government argued that the Court could not pronounce the contents of an anti-terror law unconstitutionally without first hearing its defences and relying on probable legal abuse.
The Court’s reliance on the Bill of Rights was improper in light of the Supreme Court’s prior decision in Babulal Parate v. State of Maharashtra, which was decided by a five-judge panel. Consequently, American jurisprudence could not be authorized under the constitution as there are not any provisions in the American Constitution that equate to Article 19 Clauses (2) through (6).
JUDGEMENT:
The decision came from a three-bench judge comprising of justices MR Shah, CT Ravikumar, and Sanjay Karol holding the validity of section 10(a)(i) of the Unlawful Activities Prevention Act (UAPA). Since the primary intention of the UAPA act is to prevent certain unlawful activities and penalize people who are members of such unlawful groups under the Act. As a result, Section 10(a)(i) is fully compliant with Articles 19(1)(a) and 19(2) of the Constitution and, as a result, with the purposes of the UAPA.
Another issue that the Court had to address was whether or not sections of central legislation may be read down in a situation where those provisions were not challenged and the central government had not been heard. In this regard, the Court found that the State would suffer severe injury if the same was not heard. The Centre was required to submit arguments to support 10(1)(i) and to establish the goals and objectives. Hence, this Court should not have read down Section 10(a)(i), especially when the Section’s constitutionality was not in doubt.
FINAL WORDS:
The bench stated in its ruling today that the 2011 decisions were made in bail petitions when the constitutionality of the rules was not contested. In addition, past decisions have upheld the constitutionality of the UAPA and TADA. The 2011 pronouncements were also heavily criticized for interpreting the laws without addressing the Union of India.
In the matter of BHUSHAN KUMAR GUPTA & ORS. vs. RAJINDER KUMAR GUPTA, Order XII Rule 6 of the Code of Civil Procedure, 19081, the drawl of a preliminary decree of partition with regard to property is requested.
FACTS
The late Sh. Hem Chander Gupta unquestionably bought the suit property on September 12, 1976. The following information about Sh. Hem Chander Gupta’s wife and five boys who he is said to have left behind after his intestate death on December 31, 1999: –
i. Smt. Premwati Gupta
ii. Shri Mange Ram Gupta
iii. Shri Rajinder Kumar Gupta
iv. Shri Santosh Kumar Gupta
v. Shri Satish Chander Gupta
vi. Mr. Bhushan Kumar Gupta
On July 12, 2018, the mother, Premwati Gupta, also passed away intestate. Her 1/6th undivided portion in the suit property, therefore, passed to her five surviving sons, and the plaintiffs claim that as a result, each of the five surviving sons acquired a 1/5th undivided stake in the suit property.
According to reports, Sh. Mange Ram Gupta, the oldest son of the late Sh. Hem Chander Gupta and Smt. Premwati Gupta gave his daughter-in-law Smt. Shalini Gupta his 1/5th undivided share. It is important to highlight that the plaintiffs in the current lawsuit are Sh. Santosh Kumar Gupta, Sh. Satish Chander Gupta, Sh. Bhushan Kumar Gupta, and Smt. Shalini Gupta. Only Sh. Rajender Kumar Gupta, the other son of the late Sh. Hem Chander Gupta and Smt. Premwati Gupta, and Smt. Premwati Gupta, are opposed to the relief for division.
APPELLANT’S CONTENTION
The plaintiffs addressed the defendant to request a mutually agreeable division of the subject property, with each party having a right to a 1/5th portion. It is claimed that the plaintiffs approached the defendants regarding a partition that would be impacted by metes and bounds. The current lawsuit was filed on April 18, 2022, as a result of the aforementioned request not being granted.
Learned lawyers appearing on behalf of the plaintiffs argued that, given the accepted position in the parties’ briefs that the property was itself acquired, the plea of oral division could be clearly rejected. Furthermore, since the property was acquired by the father of the parties himself and he remained the owner during his lifetime, there could have been no division, at least until his death, according to which the property could have been divided between his legal heirs. It was also claimed that if the father wished at all, the property could have been transferred either by gift or by transfer. It was argued that neither the plea of oral division nor the plea of such division raised by the father while he was alive could possibly stand.
RESPONDENT’S CONTENTION
In these proceedings, the defendant has submitted a written statement. It is important to note that the written declaration does not contest the fact that the suit property was bought by the late Sh. Hem Chander Gupta. The property would unquestionably be seen as having been bought by the late Sh. Hem Chander Gupta on his own. The sole argument put out is that the late Sh. Hem Chander Gupta, who was the Class-1 legal heir, requested all of his sons during his lifetime to divide the suit property on or around March 1999. According to the defendant, parties agreed to an equitable split of the suit property and that an oral partition came about at that time.
JUDGEMENT
1. The Court is adamant that the presented defence is completely unworthy of consideration after giving it full attention. The defendant has not provided any evidence to support how an oral partition could have been created or established during the father’s lifetime. It was also uncontested that the fathers of the parties were the only ones to obtain the land.
2. As a result, a preliminary partition decree for the property at 14/1 Shakti Nagar, Delhi, is issued, designating plaintiffs Bhushan Kumar Gupta, Satish Chander Gupta, Santosh Kumar Gupta, Shalini Gupta, and defendant Rajinder Kumar Gupta as each owning a fifth undivided portion of the property.
3. The creation of a preliminary decision for division.
4. It is regarded as necessary to give the parties some time to decide if they can divide the property by metes and bounds. If not, a definitive decree of partition and/or sale of the property, including through the parties placing inter se bids, shall be made on the next hearing date.
