Category: Constitutional Law

All about the 105th Amendment Act of the Indian Constitution and its Impacts
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S.no Contents 1. Introduction 2. Reservation for Economically Weaker Sections (EWS) 3. Impact on Education and Employment 4. Disagreements and Criticisms 5. Transformation of the Socioeconomic System 6. Implications for the Future and Problems Introduction to the 105th Amendment Act The Indian Constitution’s 105th Amendment Act, officially known as the Constitution (One Hundred and Fifth Amendment) Act, 20191, is a crucial legislative measure that introduced important changes in the field of reservations in India. This amendment passed on January 12, 2019, and adopted on August 5, 2019, marked a turning point in India’s lengthy history of affirmative action legislation. The major goal of the 105th Amendment Act was to expand reservations to economically disadvantaged sectors (EWS) of the general population. It intended to provide equitable opportunity for individuals who were economically disadvantaged while not belonging to the Scheduled Castes (SC), Scheduled Tribes (ST), or Other Backward Classes (OBC). This modification sought to address the long-standing complaint that reservation systems disproportionately benefited specific castes, potentially leaving economically disadvantaged individuals out of the general category. The inclusion of Articles 15(6) and 16(6) to the Indian Constitution was one of the significant measures established by this amendment. These provisions allowed the government to give up to 10% reservation in educational institutions and public employment for the EWS2, allowing them to enter the intensely competitive Indian education and job sectors. The passage of the 105th Amendment Act was a watershed point in India’s quest for social justice and equality. It triggered heated debates and discussions on what constitutes “economic backwardness” and the practical implications of such reservations. It generated both support and criticism, as with every big constitutional amendment, prompting a full assessment of India’s complicated confluence of caste, class, and affirmative action. Reservation for Economically Weaker Sections (EWS) The Economically Weaker Sections (EWS) quota policy was implemented in India through the 105th Amendment Act, which signified a substantial break from the traditional framework of caste-based reservations. This programme, which went into force in 2019, intends to reduce economic disparities and provide chances to those from economically disadvantaged backgrounds in general.  Individuals in the EWS category are entitled to up to 10% of seats in educational institutions and government positions under the EWS reservation policy. Individuals or families must meet certain income and wealth requirements to qualify for EWS. The income restriction often takes into account factors such as family income, property, and agricultural holdings. By giving reservation benefits to people who are struggling financially but do not belong to any reserved category, this tactic aims to level the playing field. One of its main benefits is that the EWS reservation policy does not conflict with currently held reservations for Scheduled Castes (SC), Scheduled Tribes (ST), or Other Backward Classes (OBC). Instead, it adds a new category within the broader category for economically disadvantaged people. The implementation of EWS reservations has received both praise and criticism. Proponents say that it tackles the issue of economic inequality, while detractors worry about the potential impact on current quotas and call the criteria of economic backwardness into doubt. Impact on Education and Employment The 105th Amendment Act’s inclusion of Economic Weaker Sections (EWS) reservations in education and employment has had a significant impact on access to these critical fields. This programme attempted to increase chances for economically disadvantaged individuals in the general category by allocating up to 10% of seats and posts in educational institutions and public jobs to EWS candidates. The impact has been substantial in the field of education. EWS reservations have increased access to quality education for pupils who would not otherwise have had such possibilities. This change has enhanced competition and diversity in classroom settings, resulting in a more inclusive educational experience. However, it has raised concerns about the infrastructure and resources needed to accommodate the increasing student intake, which might put institutions under strain. In terms of employment, EWS reservations have opened up new opportunities for job seekers from economically disadvantaged backgrounds. EWS candidates now have more access to government career possibilities in particular. This has the ability to generate greater social inclusion by creating a more varied and representative workforce. However, difficulties occur when attempting to balance the demands of employment quotas with the necessity for merit-based selections. The impact of EWS reservations on education and employment is a source of contention, with continuous debates over implementation, effectiveness, and the difficult balance between eliminating economic disparities and maintaining the quality and efficiency of these institutions. Disagreements and Criticisms Since its beginnings, the 105th Amendment Act, which introduced reservations for the Economically Weaker Sections (EWS), has been the subject of various disputes and critiques. While supporters say that it reduces economic inequality, detractors have legitimate concerns about its possible consequences. One major point of contention is the notion of “economic backwardness” used to determine eligibility for EWS reservations. According to critics, the income and asset limitations are arbitrary and do not reflect the genuine amount of economic need. This has raised concerns about whether qualified candidates are being denied, despite the fact that persons who are not genuinely economically disadvantaged may profit from the approach. Another issue is that the existing reservation quotas for Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes (OBC) may be diluted. Some are concerned that the 10% EWS reserve may limit possibilities for historically marginalised communities, undercutting the basic purpose of affirmative action policies. Furthermore, there are issues regarding the viability of efficiently enforcing EWS reservations, particularly in highly competitive industries like as education and public jobs. Critics say that the sudden surge of EWS applicants will strain resources and infrastructure, lowering overall educational and administrative quality. Critics of the 105th Amendment Act also criticise the timing and intentions for its passage, implying that it was motivated by political considerations rather than a genuine desire to redress economic inequality. These debates and criticisms underscore the complexities of EWS reservations, as well as the necessity for continual examination and revision to ensure they achieve theirRead More

Amendment of Article 370 – A Constitutional History
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S.no Contents 1. Introduction 2. Genesis of Article 370 3. Article 370 and Constitutional Provisions 4. Special Status and Autonomy 5. Evolution of Article 370 6. Legal and Political Debates 7. The Revocation of Article 370 8. Implications and Controversies 9. Constitutional and Legal Validity 10. Future of Jammu and Kashmir 11. Conclusion Introduction The state of Jammu and Kashmir was given a special status under Article 370, a crucial clause in the Indian Constitution1. The background history of the state’s 1947 admission to India is what led to the creation of this article. Princely states were given the option to join either India or Pakistan after British India was divided. Geographical, religious, and political reasons all had a role in the decision of Jammu and Kashmir to join India. This choice was significantly influenced by Maharaja Hari Singh, who was in charge of Jammu and Kashmir at the time, a state with a large Muslim population2. Despite having a high level of state autonomy, Maharaja Hari Singh’s agreement to sign the Instrument of Accession imposed some restrictions on India’s ability to manage communication, foreign policy, and defense. In 1949, Article 370 was added to the Indian Constitution to recognize the special circumstances surrounding Jammu and Kashmir’s accession. This article gave the state the authority to create its own laws and regulations, establish its own constitution, and maintain internal autonomy. This unique autonomy attempted to facilitate the state’s incorporation into the greater Indian Union while respecting the distinct population, religion, and culture of the region. The importance of Article 370 resides in its function as a constitutional link that struck a compromise between the needs for national unification and the aspirations of the people of Jammu and Kashmir. However, arguments concerning the level of autonomy and its effects on the state’s growth, security, and unity with the rest of India have surfaced throughout time. The result of these discussions was the repeal of Article 370 in 2019, a decision that sparked support and criticism and opened a new chapter in the history of the area. Genesis of Article 370 Jammu and Kashmir’s admission to India was significant historically following the partition of British India in 1947. Due to its complicated population makeup and strategic location between Pakistan and India, the area experienced unrest. The princely kingdom’s fate was heavily influenced by Maharaja Hari Singh, the monarch of that realm3. Maharaja Hari Singh sided with India in exchange for military support to ward off invading tribal militias supported by Pakistan after facing internal instability and pressure from the outside world by signing the Instrument of Accession. The conflict between India and Pakistan over Kashmir started after the accession when Indian forces were deployed4. This crucial choice not only established the state’s allegiance but also sparked protracted geopolitical unrest in the area, which influenced the direction of later events. Article 370 and Constitutional Provisions The Indian Constitution’s Article 370 grants special autonomy to the state of Jammu and Kashmir. The state was able to have its own constitution, flag, and substantial legislative independence because of this. This clause restricted the Indian Parliament’s ability to pass laws to those that were specifically mentioned in the Instrument of Accession and approved by the state legislatures. The President’s authority to implement Indian Constitutional provisions to the state was also constrained. This meant that, with the exception of the aforementioned areas, Jammu and Kashmir retained control over its internal affairs. The article’s transient nature and its intended use: Article 370 was intended to be a short-term, transitional rule. Its “temporary provisions” were designed to acknowledge the unique conditions that Jammu and Kashmir had joined India in 1947. The goal was to allow the state enough time to build its own legal system and governing body5. The temporary nature of Article 370 was, however, gradually diminished by subsequent changes, and its prolonged existence raised discussions regarding its relevance and usefulness. Special Status and Autonomy Jammu and Kashmir were granted special rights and autonomy inside the Indian Union under Article 370. The state had its own constitution, which served as the foundation for its administration, and it had extensive legislative authority. This model gave the state authority over internal issues, such as laws governing citizenship, property rights, and fundamental freedoms. Dual citizenship, which included both Indian citizenship and the right to remain in the state permanently, furthered the development of Jammu and Kashmir’s unique identity6. The independence provided by Article 370 had a significant impact on how Jammu and Kashmir’s politics and judicial system developed. It promoted a feeling of identity and gave local leaders a platform to rule in accordance with the particular requirements and desires of the state’s populace. However, this autonomy also sparked discussions over the efficacy of specific policies and their effects on social justice, development, and integration with the rest of India. A distinctive set of laws was produced as a result of the distinct legal framework, resulting in a complicated legal environment that occasionally deviated from the larger Indian legal system7. Evolution of Article 370 Through numerous additions and alterations, Article 370 underwent considerable changes over time. These modifications attempted to bring Jammu and Kashmir’s special status into line with the Indian Constitution’s overarching structure. The state’s constitutional rights were expanded it, its autonomy was gradually reduced, and it became more integrated into the Indian Union, among other significant reforms. For instance, the 1954 Presidential Order extended several Constitutional provisions to Jammu and Kashmir, while later modifications added more domains within the Indian Parliament’s purview8. Political and historical forces influenced the revisions to Article 370. A key factor was the changing relationship between Jammu & Kashmir and the Indian Union as well as the larger geopolitical environment and regional aspirations. The dynamics of the region were further changed by the conflicts with Pakistan in 1965 and 1971, which resulted in the foundation of Bangladesh. The course of these changes was also influenced by shifting political environments within Jammu and Kashmir asRead More

A comparative study of Articles 15, 29 & 30 of the Indian Constitution
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S.no Contents 1. Introduction 2. Article 15 of the Indian Constitution 3. Significance and Challenges of Article 29 in the Indian Constitution 4. Realm of Educational Autonomy under Article 30 5. Diverse Perspectives and Common Goals of Articles 15, 29, and 30 in the Indian Constitution 6. Intersectional Application of Minority Rights in Indian Education 7. Conclusion Introduction The Indian Constitution, adopted in 1950, is a forward-thinking framework that upholds all citizens’ social, political, and economic justice and fundamental rights. The Indian Constitution’s drafters understood how crucial it was to protect individual and community rights, particularly in a nation as varied as India. The Constituent Assembly undertook the enormous task of crafting the Indian Constitution. The Constitution’s drafting committee’s chairman, Dr B.R. Ambedkar, was instrumental in its creation. The French Revolution’s tenets of liberty, equality, and fraternity, the U.S. Constitution’s Bill of Rights, and the experiences of other nations with the constitutional government were among the many inspirations the framers drew from. To address particular issues of non-discrimination, minority rights, and educational autonomy, respectively, Articles 15, 29, and 30 were added to the Constitution. These items are essential for advancing diversity, safeguarding cultural variety, and maintaining educational autonomy in Indian society. The Constitution’s Articles 15, 29, and 30 were added to address marginalised people’s difficulties, promote inclusivity, safeguard minority rights, and advance educational autonomy. Article 15 forbids discrimination on several grounds, including race, caste, sex, place of birth, and religion. It seeks to establish a society where everyone is treated equally and to do away with prejudice in public places. The right of minorities to maintain their unique language, script, or culture is protected by Article 29. It guarantees that minority populations can use and promote their languages and cultures and acknowledges the value of cultural preservation. Religious and linguistic minorities are free to create and run the educational institutions of their choice, thanks to Article 30. It supports the independence of minority institutions and enables them to maintain their cultural and academic identities. These provisions provide equal opportunities, defend the rights of minorities, and support educational autonomy, all of which are essential for maintaining a pluralistic and diverse society. Article 15 of the Indian Constitution: A Pathway to Equality and Inclusion A crucial clause that guarantees the right to equality is Article 15[1] of the Indian Constitution. It encourages equality among all citizens and forbids discrimination on several grounds. The Constitution’s dedication to establishing a society devoid of discrimination and guaranteeing equal opportunity for all is reflected in Article 15. While Article 15 mainly forbids discrimination, some safeguards, legal interpretations, and limitations are related to its application. These consist of the following: Article 15 has considerably influenced advancing social justice and eradicating discrimination in Indian society, as have its court declarations. Affirmative action programmes have been made easier to implement, discriminatory practices have been exposed, and understanding of the value of equality and inclusivity has increased. Preserving Diversity: Unveiling the Significance and Challenges of Article 29 in the Indian Constitution The Indian Constitution’s Article 29[5] is a crucial clause that protects minorities’ rights. It acknowledges the value of maintaining minority communities’ unique languages, scripts, and cultures. In India, Article 29 significantly contributes to advancing diversity, inclusiveness, and defending minority rights. The preservation of language, script, and culture is one of the central tenets of Article 29. In a heterogeneous country like India, it acknowledges the importance of linguistic and cultural variety. The right to preserve and advance their language, writing, and culture is guaranteed under this clause, which adds to the rich fabric of Indian diversity. In contemporary India, where minority populations struggle to maintain their identities, Article 29 is still very relevant. But several obstacles prevent the practical realisation of minority rights: Empowering Minority Education: Exploring the Realm of Educational Autonomy under Article 30 The term “educational autonomy” describes the capacity of educational institutions to make decisions about their administration, admissions, curriculum, and other areas without excessive influence from outside parties[6]. As it enables individuals to customise the educational experience in accordance with their cultural, religious, and linguistic values, Article 30[7] recognises the importance of academic autonomy for minority communities. The distinctive character and values of minority populations are promoted and preserved in large part thanks to minority educational institutions. In addition to providing educational opportunities, these institutions also support the minority community’s cultural, religious, and linguistic legacy. They foster a climate in which minority students can pursue their education while yet feeling rooted in their communities. Numerous legal rulings and challenges have been made about the meaning of Article 30. Among the crucial elements are the following: Unity in Diversity: Exploring the Diverse Perspectives and Common Goals of Articles 15, 29, and 30 in the Indian Constitution Despite having similar goals, Articles 15, 29, and 30 have several significant discrepancies and reflect various viewpoints: In actuality, Articles 15, 29, and 30 are linked to one another and support social fairness, cultural variety, and freedom of education. They establish a compelling foundation for defending the civil rights of marginalised groups and guaranteeing inclusion in society: Guardians of Autonomy: Intersectional Application of Minority Rights in Indian Education A case involving the interpretation of Article 30 and the autonomy of minority educational institutions was T.M.A. Pai Foundation v. State of Karnataka[10]. While admitting the necessity for regulations to maintain standards, the Supreme Court found that minority colleges can accept students of their choosing and set their admission requirements. In the case of Ashok Kumar Thakur v. Union of India[11], the Supreme Court discussed the question of reservations in for-profit educational institutions. It was decided that minority institutions are immune from having admission reservations because doing so would violate their Article 30 rights. Examples of Intersectional Application in the Real World- Towards a Just Society: Assessing the Implementation Challenges and Future of Articles 15, 29, and 30 in India Articles 15, 29, and 30 must be continually assessed for their success in advancing social justice, cultural diversity, and educational autonomy.Read More

Suspension vs Dismissal – Understanding the Dimensions of the Indian Parliamentary System
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S.no Contents 1. Introduction 2. What is Suspension? 3. What is Dismissal? 4. Decoding the Differences between Suspension and Dismissal in the Indian Parliament 5. Legal Statutes Involving Suspension and Dismissal 6. Case Laws 7. Conclusion Introduction To be known as the World’s Largest and Fastest Growing Democracy isn’t as easy as it seems to be on paper. The daily reports and the Analysis would present the Nation to be at the zenith of its Democratic Practices, but deep down, are some rooted issues which are highlighted quite scarcely The halls of Parliament are often filled with heated debates, passionate arguments, and fiery rhetoric. However, amidst all the chaos, there is one thing that is essential for maintaining order and decorum – the power to suspend or dismiss a member. The functioning of a parliament or legislative assembly is essential for any democracy. It is the place where representatives of people sit together to discuss and make laws for the welfare of the country. But what happens when the power to suspend or dismiss a member is abused? What happens when the disciplinary mechanism is used as a tool to suppress dissent or opposition? These questions have become increasingly relevant in recent times, as lawmakers around the world grapple with issues of free speech, political correctness, and political correctness gone wrong. In such cases, the speaker or the presiding officer of the house has the power to take action against the errant members by suspending or dismissing them from the house. This article aims to discuss the difference between suspension and dismissal and their relevance in parliamentary proceedings. The power to suspend or dismiss a member is derived from the rules and procedures of the house, as well as the Constitution in some cases. The presiding officer of the house, such as the Speaker in the UK or the Lok Sabha in India, is typically responsible for enforcing disciplinary actions. Recently, in the Indian parliament, several opposition MPs were suspended for their unruly behaviour during the monsoon session. The speaker suspended them for the remaining period of the session, which led to a controversy over the extent of the speaker’s powers to suspend members. This incident once again highlighted the need to understand the difference between suspension and dismissal. What is Suspension? Suspension means to bar a member from attending the house proceedings for a specific period. The presiding officer of the house has the power to suspend a member if they violate the rules of the house or indulges in any disruptive behaviour. The power to suspend a member is derived from Article 105(2) of the Indian Constitution[1], which grants each house of parliament the power to punish its members for contempt or disorderly conduct. The rules and procedures of the house further elaborate on the circumstances under which a member can be suspended. According to Rule 373 of the Lok Sabha Rules of Procedure and Conduct of Business[2], a member can be suspended for any of the following reasons: Similarly, Rule 256 of the Rajya Sabha Rules of Procedure and Conduct of Business[3] provides for the suspension of a member for any of the following reasons: Once a member has been suspended, he or she is barred from attending any meetings of the house or any committee of which he or she may be a member. The member is also not allowed to enter the parliamentary premises during the period of suspension. The period of suspension can vary depending on the severity of the offence and the discretion of the presiding officer of the house. In some cases, a member may be suspended for a few days or weeks, while in other cases, the suspension may last for the entire duration of the session. It is important to note that a suspended member continues to be a member of the house, and his or her seat is not declared vacant. However, during the period of suspension, the member is not entitled to receive any salary or allowance from the parliament. What is Dismissal? In the Indian Parliament, dismissal refers to the expulsion of a member from the house. It is a severe disciplinary action that is taken when a member has committed a serious offence that is considered to be a breach of the privilege of the house. The power to dismiss a member is derived from Article 105(3) of the Indian Constitution[4], which grants each house of parliament the power to expel its members for misconduct or breach of privilege. The rules and procedures of the house further elaborate on the circumstances under which a member can be dismissed. According to Rule 374 of the Lok Sabha Rules of Procedure and Conduct of Business[5], a member can be dismissed for any of the following reasons: Similarly, Rule 256 of the Rajya Sabha Rules of Procedure and Conduct of Business[6] provides for the dismissal of a member for any of the following reasons: Once a member has been dismissed, his or her seat is declared vacant, and a by-election is held to fill the vacancy. The member is also not eligible to contest any by-elections for the remainder of the term of the house. It is important to note that the power to dismiss a member is a discretionary power of the house, and is exercised only in the most extreme cases. The decision to dismiss a member is taken by a vote of the house and requires the support of a majority of the members present and voting. Dismissal stands to be a severe disciplinary action that is used in the Indian Parliament to maintain discipline and uphold the privilege of the house. The power to dismiss a member is derived from the Constitution and the rules and procedures of the house and is exercised only in the most extreme cases. The decision to dismiss a member requires the support of a majority of the members present and voting, and the seat of the dismissed memberRead More

A Legal take on Safeguards of Liberty in India
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S.no Contents 1. Introduction 2. Safeguard Of Liberty 3. Essential elements in Safeguards of Liberty 4. Safeguards the protected liberty of Indian citizens 5. Right in Safeguard of Liberty 6. Landmark Judgment 7. Conclusion “Without freedom of thought, there can be no such thing as wisdom – and no such thing as public liberty without freedom of speech” By Benjamin Franklin Introduction Safeguards of Liberty in India was to protect people who are suffering and aged 16 or above 16 and also who needed it. Liberty Protection Safeguards(LPS) care for those people and treated their mental capacity with the proper agreement. In India basic right of the human being is liberty, the right to live life without fall of dignity.  Every Individual who could have a Liberty Protection Safeguards authorization incorporate those with dementia, mental imbalance, and learning handicaps who come up short on the pertinent limit. The Liberty Protection Safeguards were presented in the Mental capacity (amendment) Act 2019 and will supplant the Hardship of Liberty Safeguards (DoLS) framework. The Liberty Protection Safeguards will convey further developed results for individuals who are or who should be denied their liberty. The Liberty Protection Safeguards have been intended to put the privileges and wishes of those individuals at the focal point of all dynamics on the hardship of liberty. The liberty protection safeguards are wanted to come into force in April 2022.[1] Safeguard Of Liberty Liberty is the most valuable thing for an individual and viable advances are required for its safeguards. From days of yore, there is a tussle between the state’s power and individuals’ liberties. An individual appreciates more freedoms assuming that the power of the state is abridged. Liberty can’t exist in a domineering state. Prof. Laski calls attention to specific strides for protecting freedom. “Opportunity, right off the bat, won’t be accomplished for the mass of men clear under unique certifications” and it can’t “exist in that frame of mind of honor”. Besides, “extraordinary honor is incongruent with opportunity”. Thirdly, “liberty can’t be acknowledged in that frame of mind in which the privileges of some rely on the joys of others”. Fourthly, “What is the state’s fundamental duty for safeguards liberty”. Essential elements in Safeguards of Liberty The democratic form of Government Democracy system is a type of govern­ment where everyone has an offer in the organization. Just democrat; states can give an amiable environment to the turn of events: human character. It is helpful for the full pleasure in liberty. The Foundation of a majority rule framework is a fundamental shield of freedom. Both liberty and a democratic rules system are valuable to each other. We can’t imagine a majority rules government without the presence of common, financial, political, and individual freedom. Moreover, without even a trace of the right to opportunity, there can be no genuine majority rules government. Liberty is more secure and safer in the Majority rules system than in some other type of government. Popularity-based government is the public authority of individuals though in different types of government (like Outright Government and Fascism) all powers are focused and brought together under the control of one individual or a gathering of people. The individual in power or a gathering of people in power can’t endure his or their analysis. The nature of A majority rules system inverse gatherings is given due regard in Majority rules government. The contrary gatherings structure the public authority after the disappointment of the decision party. Analysis of the public authority is invited in Majority rule government. Fundamental Rights There should be a reasonable and unambiguous rundown of essential fundamental rights in the Constitution. Individuals should be con­versant with their freedoms and the public authority should know about the limita­tion of abilities. These freedoms are justiciable and any demonstration that contradicts the arrangements of the Constitution can be announced ultra vires. One of the vital strategies for safeguarding liberty is to consolidate a sanction of central privileges and opportunities in the constitution of the State. Alongside it, legal insurance ought to be given privileges. They safeguard our freedom to an exceptionally extraordinary degree. These basic freedoms likewise restrict the power of the state. In the presence of crucial freedoms, the state can’t meddle in that frame of mind of individual life. Without a trace of key freedoms freedom of the individual is never out of risk and without freedom improvement of human character is preposterous. Separation of Power The powers of the public authority ought to be isolated among the chief, law-making body, and legal executive. This will help in forestalling any organ of the public authority. To turn out to be outright. Each organ of the public authority. Will work in its system. As indicated by popular French Researcher Montesquieu, detachment of abilities is a fundamental condition for pleasure in the freedom and the nations where there is the partition of abilities, individuals appreciate more freedom. This interaction is finished through the utilization of balanced governance. Lord  Acton believes that “Power taints an; outright power undermines totally.” Power has an internal pattern for abuse and power ought to go about as a check to drive. Responsible Government An administration framed by the representa­tives of individuals will undoubtedly be capable. Any error concerning the public authority will sound its mark of the end and the resistance will exploit it. A bi-party framework with solid resistance will guarantee essential safeguards for liberty. Love for Liberty For the security of freedom, individuals ought to have limitless love for freedom. On the off chance that it is thus, individuals might never want to lose their freedom and will be ready to make each penance for its insurance. During the opportunity battle, lakhs of Indians made penances of their lives as they went to gallows and prisons for the fulfilment of opportunity for their homeland. Rule of law The idea of Law and order implies all people are equivalent under the watchful eye of law and regulation. This law and Regulation see noRead More

Laxmi Kant Pandey v. Union of India
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S.no Contents 1. FACTS AND PROCEDURAL HISTORY 2. ISSUES RAISED 3. LAWS RELATED 4. ANALYSIS 5. CONCLUSION CITATION 1984 AIR 469 DATE 6/02/1984. FACTS AND PROCEDURAL HISTORY Background of the case 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 andRead More

Applicability of Fundamental Rights to the Constitution in Light of Article 368
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S.no Contents 1. Introduction 2. Constant Turbulence Between Article 13 and Article 368 3. The Parliament’s Comeback 4. The Conflict Between the Judiciary and Former Prime Minister Indira Gandhi: 39th Amendment 5. The Contextual Constitution 6. Conclusion 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 to Waman 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 theRead More

A.K. Gopalan v. The State of Madras
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Year 1950 Citation AIR 1950 SC 27 Court The Supreme Court of India Bench Harilal Kania (C.J.), Justice M. Patanjali Sastri, Justice Mehr Chand Mahajan, Justice B.K. Mukherjee and Justice Sudhi Rajan Das, Justice Fazal Ali Saiyid. Introduction A.K. Gopalan was the political opponent of the government. He filed the writ petition of habeas corpus. Habeas Corpus which means you may have the body is a writ that institutes the court to determine whether a criminal defendant has been lawfully imprisoned or not. A.K. Gopalan filed this writ petition challenging Article 19(1) (d)[1] which is the right to freedom of movement and article 21[2] which states the right to life and personal liberty. He filed this writ petition against the detention in pursuance of an order of detention made under the Prevention Detention Act, of 1950[3]. Prevention Detention Act detains the person without giving any valid reason and detention is being done because that detention is important. He challenged the validity of the order given by the court in pursuance of the Prevention Dentition Act to be “Mala Fide”. Facts of the case Since December 1947 A.K. Gopalan was detained several times illegally and even after the order of the court which makes him free he was kept under detention by the government under the Prevention Detention Act, of 1950. So, he filed a writ petition under article 32 for seeking the writ of habeas corpus of The Indian Constitution. He challenged the legality of order by the government as it opposes some of the articles of The Indian Constitution. He further argued that Sections 7, 8, 10, 11, 12, 13, and 14 of the Prevention Detention Act, 1950 violate Articles 13, 19, and 21 of the Indian Constitution. But majorly he asked for this writ on the ground that the Preventive Detention Act[4] curtails his personal liberty under Article 21 of the Indian Constitution. He contended that the law under Article 21 is not just the enacted law but it also includes the Principle of Natural Justice as well as some others laws associated with it that deprives the individual’s personal life and liberty.  Petitioner contention M.K. Nambiar appeared as a petitioner’s council. Some of the arguments put forward by the petitioner’s side were – The first and foremost argument was about the legality and validity of the provision of the Preventive Detention Act, of 1950 which they believed had violated Articles 13, 19, 21, and 22. We have article 19(1) (d) of the Indian Constitution which states the freedom to move freely within the territory of India but in this case, the State Government of Madras restricted this right by the detention of A.K. Gopala even after the decision by the court which made him free. The provisions of the Preventive Detention Act, of 1950 were against article 19 and challenged the statute’s failure as the petitioner’s freedom of speech and expression was revoked. Article 21 is in the Right to Life and personal liberty but after the prolonged detention, it seems to have no importance of Article 21 for the petitioner. The detention order was also arbitrary as it violates article 22. Article 22 deals with protection against arrest and detention in certain cases. Section 14 of the Preventive Detention Act, of 1950 violates the fundamental right under article 13 of the Indian Constitution Respondent’s Contention Advocate K. Rajah Ajyar (Advocate General of Madras), and M.C. Setalvad (Attorney General of India) appeared as respondent’s council  The respondent said that Articles 19 and 21 should not be read together as it depends on the perspective and the nature of the case in which context both the articles should be read together. Detention that is being done is not arbitrary, according to Article 22 which states protection against arrest and detention in certain cases. The legal procedure that is followed, everything is as per the constitution of India.  Detention does not violate any of the rights of the petitioner i.e. of articles 12, 19, 21, and 22. The Prevention Detention Act is completely legal and not arbitrary. There is no point in filing a writ petition of habeas corpus under article 32 of the Indian Constitution. Issues raised in the case The Prevention Detention Act, of 1950 does violate the prevailing articles 19 and 21. Article 19 – Protection of certain rights regarding, speech and expression, assembly, association, residence, and profession. Article 21 – Protection of life and personal liberty is there any kind of relation between these two, and can they be read together? This was one of the major issues as it could turn out to be the deciding factor. Due process is a requirement that legal matters are resolved according to the established rules and principles and everyone should be treated fairly. So the issue raised was whether the procedure established by law under Article 21 is the same as that of due process of law. Judgment This case is a landmark case in constitutional law and is popularly known as the Prevention Detention case. After extensive discussion and wide research, the bench of judges came to the last point of the case where they were expected to give the judgment on this particular case. The court rejected the argument that Article 19 and Article 21 of the Indian Constitution are being violated because of the Prevention Detention Act, of 1950. The next particular topic on the discussion was being done was that whether the Prevention Detention Act, 1950 is ultra-vires or not, however in this particular question section 14 of the act was declared as the ultra-vires as it violates the rights guaranteed by Article 22(5) of the Indian Constitution. The court also said that being ultra-vires of section 14 of the act does not affect the validity of the whole act. The next question was whether article 19 and article 21 should be read together and if there is any kind of relationship between both articles. The court rejected this argument and said thatRead More

UNDERSTANDING THE CONSTITUTIONAL THEORY
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S.no Contents 1. Abstract 2. Introduction 3. Constitutional Theory in Different Countries 4. Constitutional Theory in the Indian Context 5. Background of Formation of the Constitution 6. Salient features of the Indian constitution 7. Conclusion Abstract This article aims to present an overview of Constitutional Theory, its types, and its evolution over the period of time. Further on it explains in detail the constitutional principles of some of the world’s strongest constitutions, particularly the Indian and US constitutions. Introduction Constitutional Theory is an aspect of constitutional law that focuses on the underpinnings of constitutional government. A constitutional theory tries to draw upon bases of agreement that exist within a legal culture and to extend those agreed-upon principles to solve issues and problems in society. Its main aim is an organization of all points of agreement together in a formal manner in cases where there is no agreement. This theory can be both subjective as well as prescriptive. On one hand, the constitutional theory is prescriptive as it purports to tell what to do but at the same time, it is also descriptive as it cannot call for a wholesome departure from existing practices.Constitutional theory can be best understood if seen as an exercise of justification. More or less, it is an effort to justify a set of prescriptions about how certain controversial constitutions should be decided. The justification is then addressed to people within a particular legal culture There are broadly two aspects of constitutional law: The first aspect which is more of a formal theory covers The overall structure of the government Relations amongst branches of government Relations between various levels of government The second aspect relates to the theories of judicial review, which provides justifications for the occasions on which the courts, ruling on constitutional issues, will and will not displace the judgments of elected officials. A constitution is a set of fundamental principles or established precedents, all of which altogether constitute the legal basis of an organization, and polity and determines how that entity is to be governed. When all the principles (to be followed) are written down in a single document or multiple legal documents and are written in a single, codified, comprehensive document it is said to constitute a constitution. Constitutionalism is a legal political philosophy that recognizes the need for a government but at the same time also emphasizes restraining its power. This evolutionary philosophy is essential for a democratic setup. Like constitutional theory, there is no uniform definition of constitutionalism but in modern times it emphasizes restraining the powers of government to an extent that it doesn’t hinder the self-development of the society and economy. Constitutions concern different levels of organizations, from sovereign countries to companies and even unincorporated associations. Moreover, even a treaty that establishes an international organization can be termed to be a constitution since it describes how that organization was constituted. Constitutions especially codified one act as limiters of state power, by establishing lines that a state’s rulers cannot cross such as fundamental rights. The constitutional theory differs from one country’s constitution to another’s. Constitutional Theory in Different Countries CONSTITUTIONAL THEORY AS ESTABLISHED IN THE UNITED STATES OF AMERICA is more of an academic discipline that focuses on the meaning of the US constitution, which draws attention to all aspects ranging from ethical, political, linguistic to sociological to historical. US’s constitutional theory emphasizes a lot of Judicial Review. Judicial Review is a process wherein the judiciary reviews the legislative, executive, and administrative actions. It is one of the checks and balances in the separation of Power wherein the judiciary has the power to supervise the legislative and executive branches when the latter exceeds their authority. The types and general principles vary according to the jurisdiction and the country. This idea of Separation of Power; initially introduced by Montesquieu, is based on the idea that no branch of government should be able to exert power over any other branch without due process of law, each branch should keep a check on the other to create a “regulative” balance amongst all. When carrying out judicial review a court may ensure that the principle of ‘Beyond the Powers’ (ULTRA VIRES) is followed i.e. the public body’s actions must not exceed the powers given to them by legislation. The great influence of judicial review in constitutional theory was established in Marbury v. Maddison[1]. Broad concepts explained by the Constitutional Theory: It seeks to understand the relationship between Branches of government Individual rights and state power Federal government and state It seeks to understand how the constitution’s meaning shifts with changes in cultural norms changes in Political structure Some of the US’s constitutional theorists are: Bruce Ackerman Jack Balkin Ronaldo Dworkin Robert Post Class Sunstein GERMANY’S CONSTITUTIONAL THEORY was established by Immanuel Kant and is based on the supremacy of a country’s written constitution This idea is the foundation for the constitutional theory of the 21st century.Similarly, based primarily upon the German legal tradition, the Russian legal system was borne out. Russian legal state concept adopts the written constitution as a supreme law of the country, it consists of 6 democratic federative legal states with a republican form of governance. Constitutional Theory in the Indian Context The Constitution of India is the supreme law of the land in India. The constitution lays down the framework that demarcates fundamental political code, structure, powers, and duties and lays down fundamental rights, directive principles, and duties of citizens. The democratic values in Indian society are deeply rooted in REPUBLICS since the era of the Janpadas, which can be traced back to 600 BC. The constitution very well upholds the principle of equality in all fields like ethnicity, gender, religion and creed. The success of the constitution in such a vast and diverse country like India can be traced to the fact that India has successfully accommodated the aspirations of people since its creation. Despite many internal challenges in illiteracy, inequality and diversity of cultures, traditions, and religionsRead More

THE NOTEWORTHINESS OF PARLIAMENTARY PRIVILEGES IN A DEMOCRATIC COUNTRY LIKE INDIA
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{This article is written by Prashant Prasad, a second-year law student from University Law College. This article intends to describe the role of parliamentary privileges in safeguarding the interest of members of the house.} Introduction  The Parliament holds one vital position in a country and is responsible for the legislation of laws. It’s a place where people i.e. members of the house, sit and discuss the problem related to national and international issues. The composition of parliament is as such there is a Rajya Sabha (Upper House), Lok Sabha (Lower House), and President all these 3 entities together are known as a Parliament. Because Parliament should work without any restraint and fear certain privileges have been provided collectively and individually. These rights and immunities have been provided to the members of parliament so that they can effectively discharge their functions.  Collectively – Privileges are being enjoyed by the members of parliament as a whole.  Individually – Enjoyed by each present is the house. The Parliamentary Privileges1 are not only available to the members of the houses but are available to the ones who are constitutionally entitled to speak and take part in proceedings of each house such as ministers, Attorney Generals, etc. For the privileges in the state legislature, we do have Article 194 which jots down the power, and privileges of the house of the state legislature. These parliamentary privileges have been provided in the Indian constitution so that the working of the house and proceedings should take place without any kind of fear and restraint which will eventually enhance the process of legislation. This article will explain in detail what the different kinds of parliamentary privileges are and how these privileges safeguard the members of either house.   To what extent there is Freedom of speech in the Parliament? For the members of parliament to discuss and participate in the debates during the preceding house freedom of speech has been provided. This immunity allows the members to discuss and present their views effectively without having a fear to get penalized for the words they are saying. This privilege allows the members to present their views in a free, frank, and fearless way.  In the case of Tej Kiran v. Sanjiva Reddy2 there was a world Hindu Religious Conference that was going on in Patna, in that conference Jagadguru Shankaracharya said some statements on untouchability. Subsequently, after a few days, a derogatory statement was spoken against Jagadguru Shankaracharya on his remark on untouchability. One of the disciples of Jagadguru Shankaracharya filed a suit for damages against the six members of the parliament. The High Court rejected the plaint of the plaintiff, plaintiff again appealed to the Supreme Court. The Supreme Court emphasized Article 105(1) and held that whatever is said in parliament i.e. during the sitting of the parliament is immunized and hence members of parliament are not liable. Limitations Freedom of speech in the Parliament Article 118 has given that Freedom of Speech should be following the constitutional provisions and rules. Further, under Article 121 the members of parliament are restricted from discussing the conduct of judges of the Supreme Court and High Courts. These are a few limitations regarding Freedom of Speech in the Parliament apart from this the members of parliament during the session of the houses do have full right to exercise Freedom of Speech. Publication of proceedings under the Parliament Authority The Parliament Papers Act, 18403 was passed which provides that publication of any reports, proceeding, papers, etc. of the houses which are to be published under the authority of the Parliament is completely privileged. Article 105(2) provides that no person shall be liable for publishing any reports, discussion, etc. of the house under the authority of members of the house. Therefore we can say that all the people who are connected with the publication of any stuff related to the parliament under the authority of parliament are completely immunized provided that the authority of parliament must be there. In the case of Dr Jatish Chandra Ghosh vs. Hari Sadhan Mukherjee4, the member of the state legislature gave notice to the speaker regarding whether he can ask certain questions in the assembly. The speaker disdainfully disallowed the asking of a question. The member published this news in a local journal. In turn a govt. servant filed a suit against that member and also against the editor (under 500 and 501 of IPC5) who published that news and it was contended that this news defamed the reputation of the speaker. The matter came before the Supreme Court and it was held by the court that the said publication does not fall under the scope of Article 194(2), as it was not under the authority of the house and hence the Member of Parliament is not privileged in this case. The court however led the question open that whether the disallowed question can be said to form a part of a parliament proceeding or not.  What is Freedom from arrest if anyone is a Member of Parliament? The Member of Parliament enjoys Freedom from arrest in any civil case 40 days before and 40 days after the session of the house. The main reason behind the inculcation of this privilege is to make sure the safe arrival of and regular attendance in the Parliament. However, one main point is to be noted that this arrest is only for civil cases and not for criminal cases, contempt of court, or preventive detention. Therefore in July 2021, the Supreme Court rejected the Kerala government’s plea to withdraw the criminal charge from the MLA6. If any member is being arrested in the parliament then in that scenario the chairman and speaker must be informed by the concerned authority and also the reason for the arrest. There are main other privileges enjoyed by being a member of parliament and those privileges are also regarded as Parliamentary Privileges. Such as – Rule making power, Internal Autonomy, the Right to exclude strangers, the Right of the house to regulate itsRead More