Tag: #constitution

Undertrials’ strip searches are humiliating and violate their fundamental right to privacy, according to a Mumbai Court

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-Report by Utkarsh Kamal

In this case, we are going to discuss the rights of the prisoners, and also as the fundamental right ( right to privacy) of a prisoner and the right to live with dignity, in this case, the prisoner is an accused and he asked to be nude in front of the prison official while there are electronic gadgets available to check him whether he has anything under his clothes or not but still the prison officials asked him to be nude so they can check him. when the accused took this to the  Court where the court held that it was a clear violation of his rights.

FACTS:

An application had been submitted to the judge by Ahmed Kamal Shaikh, one of the defendants in the 1993 Bombay bombings case. The 1993 Bombay bombings trial is currently in its third round. The accused had stated that every time he is brought before the court and hauled back to jail, he is strip-searched at the jail’s entrance, which is humiliating and against his rights, in the motion submitted through counsel Farhana Shah. Shaikh asserted that he had objected to it, but the jail staff began abusing, humiliating, and threatening him with unparliamentary words. He approached the court in distress.

ISSUE:

Whether misbehaving with an accused person in jail is a violation of his rights or not. 

RELATED LAWS:

Article 21: Protection of life and personal liberty, no person shall be deprived of his liberty except according to the procedures established by law. 

This article also includes the right to privacy as well as the right to live life with dignity.

APPELLANT’S CONTENTION:

The applicant/accused Ahmed Kamal Shaikh is upset because after appearing before the court, he is returned to jail. He is made naked in front of other prisoners and staff members while being searched by the searching guard at the entry, which is humiliating and a violation of his right to privacy. When he objected to the same, the concerned searchers misbehaved with him, used unparliamentary words towards him, and humiliated him in front of other people. Threats were made to him as well as detainees. Therefore, he asks for instructions from the Superintendent or Jail Authorities not to misbehave, embarrass him, or speak to him in an offensive manner. He also asks for guidance on how to conduct his own search using a scanner or other technical devices.

Respondent contention: The superintendent of Mumbai Central Prison informed the court that the accused had not received any such degrading treatment. The superintendent contended that the current “false” application was only submitted to put pressure on the jail administration. Hence the court should reject the application.

Judgment: The claims made by the accused had some merit, according to the special judge. When conducting personal searches, the judge instructed the prisons’ superintendent and search guards to employ scanners and electronic tools. The judge further stated that the officers are not obligated to act inappropriately, humiliate the accused, use profane language, or strip them naked if such devices are not accessible and a physical search must be undertaken. The Court further highlighted that in addition to the current applicant, several prisoners who were awaiting trial had come before it with comparable grievances. The same judge had instructed the superintendent and search guards of Arthur Road Jail in February of this year after an accused

READ FULL JUDGEMENT: https://bit.ly/3MOgtq8

POWER OF THE HIGH COURT TO GRANT INTEREST ON LAND ACQUIRED BY THE GOVERNMENT UNDER ARTICLE 226

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-Report by Moksh Kapoor


Interest was granted to the petitioners in the case of ROSHANBI AZIZ MOTIWALA THROUGH POA MR. ILIYAS AZIZ MOTIWALA AND ORS. Vs THE COMPETENT AUTHORITY AND DEPUTY COLLECTOR AND ORS. Decided on 06-04-2023.


FACTS:


The properties of the petitioners in the present case were acquired by the Competent Authorities. It was contended by the petitioners that the authorities passed an order under section 3(G) of the national highways act dated 15th July 2017 that the compensation awarded to the petitioners according to their building structure will be for an amount of Rs. 1,08,92,995/-. The petitioners contended that the compensation amount which was paid had not been added with the interest on the amount determined by the Competent Authority under the Award from the date of declaration of the Award till the date of payment of the amount of compensation. A similar claim was rejected by the Competent Authority and the petitioners moved to the high court for redressal under Article 226 of the Indian constitution.


APPELLANT’S CONTENTION:

Petitioners claimed they are entitled to interest on the sum given under the Award from the date of the Award until the date of payment. They also claimed that the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement (Removal of Difficulties) Order dated August 28, 2015, which went into effect on September 1, 2015, provided that the provisions of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 (“the said Act of 2013”) relating to the determination of compensation. They further contended that it was the duty of the competent authority to disperse the compensation amount after passing the reward and the competent authority has failed to do the same. Petitioners also stated the case of Tarsem Singh, in which the apex court held that Sections 23(1-A) and (2) of the Land Acquisitions Act relating to Solatium and interest, as well as Section 28 in which interest is payable this provision will also apply to any acquisition made under the 1956 Act.


RESPONDENTS CONTENTION:

The respondent contended the notice to collect the reward to both the petitioner was issued and the petitioner by their will claimed the award in February/March 2015 and the amount was given to them during that time only. The competent authority also contended that after the award was issued the valuation of the property can’t be done therefore the award concerning structure was not passed. They stated that the supplementary compensation amount was deposited in the petitioner’s account as per the letter issued by NHAI dated 27, September 2017 and the notice for the same was issued on 28th September 2017. They claimed the petitioner is provided with the full compensation of their land therefore they are not liable to pay any interest.

JUDGEMENT:


The Bombay High Court in this case held that the claims made by the competent authority of issuing notices to both the petitioners are not maintainable in the court as there is no proof for the same. There was no material produced in the court to back up the claim. The court also held that the question here is not of providing the actual compensation, but rather providing the interest for the delay of providing the compensation by the competent authority. If there is a delay in the actual payment of compensation amount from the date of respective Awards in Petition, the Petitioners would, in our opinion, be entitled to interest from the date of respective Awards. Award valid till the date of payment. In light of the facts and circumstances of both Writ Petition and for the reasons stated above, it would be necessary to direct the Respondents to pay the Petitioners interest at the rate of 9% per annum from the date of award until the date of actual payment.

READ FULL JUDGEMENT: https://bit.ly/3nUWs6T

NO MERIT IN WRIT PETITION FILED BY PETITIONER U/A 226 OF THE CONSTITUTION

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–Report by Shreya Gupta

The petitioner, in this case, was Masudeo s/o Rama Kusalkar and there were 8 respondents, The State of Maharashtra, The Divisional Commissioner, The Collector, The Additional Collector, The Sub-Divisional Officer, The Tahsildar, The Talathi, Bhalchandra Dattatraya Sawant. The history of the case lies in 1989 when the government of Maharashtra ordered to allot 1 acre of land to each beneficiary of the backward class.

FACTS:


The case is filed under article 226 of the Indian constitution. The government of Maharashtra allotted 1-acre land to 179 people of backward class for rehabilitation provided to some terms and conditions. The issue arose since land is a part of the revenue village Limpangion known as Joshi Vasti and was getting separated from it to become a different village. For this, the notification to raise objections was sent which caused the main dispute since it was contended that no such notification was issued.

PETITIONER’S CONTENTIONS:


According to the petitioner, the notification declared by respondent no. 4 is bad in law and contrary to section 4 of the Maharashtra land revenue code, 1966 and section 24 of the Bombay general clauses act. The petitioner contends that there should be an issuance of a writ of certiorari to quash and set aside the notification. It was contended that the notification was not given publicity by law. He contends that the action of the respondent is arbitrary and illegal. He took the support of previous judgements like Prashant Bhausaheb Ghiramkar Vs. The state of Maharashtra reported in 2013 (6) Mh.L.J. 703 and Dr Avinash Ramkrishna Kashiwar and others Vs. The state of Maharashtra and others reported in 2015 (5) Mh.L.J. 830.

RESPONDENT’S CONTENTION:


According to the respondent’s contention, the proposal for consideration of a new revenue village with details was received. It is also contended that under section 4 (1) of the code, the collector can carry out the powers vested in the state government. They also contended that a village that has more than 300 population needs to be separated and created as a new village. They also contended that the call for objection from the public was issued, published on the notice board and a further hearing was also done. They further contended that the report from the District Superintendent of Land Record, Ahmednagar opined towards the creation of the new revenue village. They contend that they have compiled section 4 of the Maharashtra land revenue code, 1966 and section 24 of the Bombay general clauses act.

JUDGEMENT:


The court declares that the respondents have compiled by the law, issued the notifications, heard the objections and further published it too. The court stated that “We cannot sit in the appeal and appreciate the minor procedural lapses caused during the process undertaken by competent authority towards creating separate revenue village. We are concerned with substantive compliance with the provisions keeping in mind the object sought to be achieved. We are satisfied that there is the compliance of requirements indicated under section 4 of the Code.” The court stated that the petitioner cannot derive any advantage from the previous judgements that they have mentioned for reference. The court declared that no such evidence has been brought to our notice that shows that the notification issued impeded any provisions of the Forest act or rules. The court further declared that there is no merit in the writ petition and is therefore dismissed.

READ FULL JUDGEMENT: https://bit.ly/3I3HaUZ

CITATION: WP-11923-2018-J..odt

Exclusion of public employees from Employee Compensation Policy

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–Report by Sneha Sakshi

In the case of MAHARASHTRA STATE FINANCIAL CORPORATION EX-EMPLOYEES ASSOCIATION & ORS.
VERSUS STATE OF MAHARASHTRA & ORS., the appellants had brought a discrimination claim against the Maharashtra government’s Industry, Energy and Labour Department’s decision dated 29.03.2010 in that procedure.

FACTS:


The workers of the Maharashtra State Financial Corporation who retired or passed away between January 1, 2006, and March 29, 2010, were not granted the benefit of the pay scale change that the Fifth Pay Commission had recommended. The modification, however, became effective on January 1, 2006.


The determination of the implementation date for the Fifth Pay Commission’s recommendations as they relate to the respondent corporation is at issue in this case. That formulating a policy on fixation of pay for the wages of its employees, the scope of its revision, as well as the date of its execution, are undeniably matters of exclusive executive decision-making power. Special leave to appeal granted.

The appeal was finally heard with the parties’ knowledgeable counsel’s permission. A ruling by the Bombay High Court is being contested by the appellant organisation.


CONTENTIONS OF APPELLANT:


➢ The expert counsel for the appellants, Mr Jay Salva, asserted that, notwithstanding the fact that the most recent pay modification had been in effect for its employees from 1986 to 1989, MSFC believed it had gone into effect on January 1, 1999. While the previous version was being authorised, five more revisions were due.
➢ The board of directors decided to follow the pay commission’s recommendations starting in January 1996 without giving those modifications any thought.
➢ Only the 115 current employees who were working at the time that the benefits were passed on were subject to the enhanced salary, depriving the 900 previous employees of comparative advantages.
➢ All people who were employed received temporary reliefs beginning in September 1993, including those who ultimately lost out on the pay revision owing to retirement.
➢ Mr Salva contended that the MSFC owed no more than 32 crores to all former workers, including those who had retired, asked for VRS, or had passed away. He said the GR failed to recover the money paid for interim relief and ad hoc amounts paid to current employees between September 1993 and July 2001.


CONTENTIONS OF RESPONDENT:


➢ The employee in question was not subject to any scheme and chose to leave the company of his or her own volition. However, the Corporation had less obligation to pay salary dues.
➢ The defence attorney for MSFC contended that the state government shouldn’t intervene because of the contested judgement.
➢ It was contended that MSFC is an independent company and is exempt from Maharashtra Government regulations.
➢ Expert counsel emphasised that by paying the benefits on the terms proposed by the appellants, the Corporation was suffering losses.
➢ These characteristics made these workers eligible for benefits above and beyond what they would have gotten if they had remained in their jobs.
➢ Before issuing such a ruling, the Court, according to Mr Patil, must consider the financial impact on the employer.


JUDGMENT:


On January 1, 1996, the State Government adopted and put into practice the Fifth Pay Commission’s recommendations. Without choosing whether to impose those scales for its employees, the MSFC forwarded the idea to the State Government (as required by S. 39 of the State Financial Corporations Act). During this period, all present employees received a little reprieve in the form of wage revision.


The Fifth Pay Commission’s recommendations for pay modification were put into action by MSFC on March 29, 2010. The State of Maharashtra letter dated 29.03.2010 served as the basis for the decision to apply the wage revision to the workers who were already working there and to minimise the arrears that would be due as of the first of January 2006 in the future.


By Office Order dated 09.04.2010, the MSFC decided to implement the decision of the Government of Maharashtra and grant the benefits of the Fifth Pay Commission to employees of the Corporation who were on its rolls on that date.


The highest court in India has ruled that voluntarily leaving one’s job before finishing it is still eligible for rewards. The employer cannot discriminate against or split a homogeneous class of workers using a fake cut-off date, the court said.


It was held that VRS employees cannot claim parity with others who retired upon achieving the age of superannuation. Those who died during that period shall be entitled to arrears based on pay revision, accepted by the Corporation. The Corporation was directed to pay interest @ 8% p.a. on these arrears from 01.04.2010 till the end of this judgment.

LINK TO FULL JUDGEMENT: https://bit.ly/3Rw1Qbk

National Seminar: by CMR University, Bangalore

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The CMR University School of Law, Bangalore is organizing a national seminar on RECENT TRENDS IN CONSTITUTIONAL LAWS.

THEMES

  1. Sedition laws in India
  2. Emerging perspectives in constitutional interpretation
  3. Separation of powers-need for restraint
  4. Relevance of DPSP in Constitutional Governance in India

REGISTRATION DETAILS

Registration fees:

  1. FOR PARTICIPANTS FROM CMRU: INR 750
  2. INSTITUTIONS HAVING MOU WITH CMRU: INR 750
  3. OTHERS: INR 1000
  4. register with the link

GENERAL DETAILS

JUNE 24, 2022 at AV HALL, CMRU-OMBER CAMPUS

CONTACT INFORMATION

+918025453077

conference.sols@cmr.edu.in

https://docs.google.com/forms/d/e/1FAIpQLSfKh71lPrwH8t1w7hIh5yeoHfrtuyKSwnpeWS6F_5x-wHEOEA/viewform

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Communalism and Secularism

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Introduction

Communalism can be explained as having a very strong attachment to one’s community. That is it is the trail of thought according to which people have a very strong sense of emotion and attachment to their religion, caste, race, etc. Basically, the strong sense of belongingness and extremist views people have towards their community can be termed communalism.

Thus communalism is definitely an evil for a diverse country like India where so many people of different communities exist and flourish together. Therefore communalism is both an issue of the core values of our constitution as well as a security issue. This is because the Preamble of our Constitution has included Secularism as a core value. The concept of secularism has been explained further in the article. The concern of security arises due to communal riots. As the name suggests, communal riots are violent disturbances of peace between people belonging to different communities. A communal riot usually takes place between two separate castes or religions. Such disturbances cause threats to the peace and internal security of the country as such displays of violence usually cause huge losses to life and property.

Some Instances of Communal Riots

Partition of India,1947:

The riots during the partition of India are one of the most well-known examples of communal riots. About 14 million people had to abandon their homes when British administrators of Colonial India began dismantling the South-Asian empire. The estimated number of people killed during the partition period ranges from 200 thousand to 2 million.

Anti-Sikh Riots, 1984:

The 1984 Sikh Massacre, also called the Anti-Sikh riots were multiple planned attacks against the Sikhs. These took place post-assassination of former Prime Minister Indira Gandhi. The assassination was done by her Sikh bodyguards in a form of retaliation towards the order to attack Harmandir Sahib complex, Amritsar that had been given to the Indian Army. In these riots, 3,000 Sikhs had been killed in New Delhi, with approximately 17,000 Sikhs being killed in 40 different cities spread across India. Approximately 50,000 people that were belonging to the Sikh community had to move from their hometowns across different cities.

Communalism as a Political Strategy

Now that it is clear what communalism and how communal riots are a dangerous consequence of it, it is clear that communalism is not a practice that should be promoted and instead should be avoided or even rooted out. It is, however, the unfortunate reality of our democracy that many politicians use communal tactics and strategies in order to get vote bank during elections. Some forms of communalism can be highlighted as:

The organization of Parties:

Many political parties make sure that all the party members belong to only a specific community. This may be done in order to send the message that a party shall favor a specific community and may favor it over other communities.

Selection of Election Candidates:

Political parties, in order to get voters on their side in a particular constituency, may choose a candidate of the community which is in majority in that constituency. This is done in order to get the majority of the votes from that constituency.

Voting on Communal Basis:

Most voters would vote for someone who is a part of their own community. Therefore parties may appeal to the voters of a particular community in order to get votes from them. The voters may feel that the party will work for the welfare of their community.

All of these conditions and strategies hinder the progress of democracy in our country and also go against the core values of our constitution.

What is Secularism?

Secularism has been explained as the separation of the State from religion. This means that no particular religion is followed or favored over the other religions in the country.

The Preamble has declared India as a secular country. The word Secular had been added in the constitution by the 42nd amendment of the constitution of India. The word secular was added to symbolize that the country gives equal opportunities to the people of every religion in the country and also that no one shall face discrimination because they belong to a particular religion.

Secularism in the Constitution

It grants equal treatment by the law of the State and also grants equal protection of laws to everyone irrespective of caste, race, sex, etc. in the territory of India

This article prohibits discrimination against anyone on the basis of sex, race, religion, caste, etc.

Article 16 grants equality in matters that relate to public employment. Clause 1 of this article states that there shall be equal opportunities given to everyone in government offices.

The constitution by virtue of this article has granted everyone the freedom to propagate, practice, and profess any religion freely without any interruptions.

The freedom to manage religious affairs has been granted by this article. This means that all religious communities have the right to establish their own institutions for the purposes of religious activities and charity and also manage their own affairs.

This article has made it clear that no one will have to pay any form of taxes or fees for the maintenance and promotion of their religious denomination or religion.

The contents of this article have stated that any educational institution which is run and maintained through state funds shall not provide any religious instruction. This does not however apply to private educational institutions.

This article has provided that any section of citizens that reside in India shall have the right to conserve their culture and language. It has also been provided that no educational institution which is run out of state funds shall deny admissions on the basis of sex, caste, race, religion, etc.

The minorities of the country have been provided with the right to establish educational institutions of their own choice through this article.

  • Article 51-A(e)[x]:

Clause (e) of Article 51-A which provides the fundamental duties of the citizens states that the people of the country shall strive to promote equality and brotherhood among people of the country irrespective of religion, race, caste, sex, etc.

Conclusion:

Although communalism is an evil that still exists in the country and is also used by various politicians to gain votes, the core values of the constitution and the legal framework of the country are constantly striving to make India a secular country.

The author of this article is Om Gupta, a first-year law student pursuing a BBA-LLB from the University School of Law and Legal Studies.

The editor of this article is Shreya Litoria, pursuing B.Com LLB from Banasthali Vidypaith University, Jaipur.

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“The Writ of Mandamus: An Analysis”

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Introduction 

A formal written order issued by the judicial authority is known as writ. Mandamus means “We Command” Mandamus is among the prerogative writs in English law. It is an order from a superior court to an inferior government official to properly fulfill their official duties.  The court can order either to do something or not to do something. High court or apex court has original jurisdiction to the issue writs. And it can also be issued for keeping the public authorities within their jurisdiction while performing their public functions. A mandamus writ is unique because it can be an issue before a case has concluded.

How Mandamus Writ regulates before the Constitution of India

By the letters of patent, The Mandamus came to India creating the apex court in Calcutta in 1773. The writ of the  Mandamus can issue under the Specific Relief  Act, 1877. But under the Specific Relief Act, 1963. this provision is omitted from the Act because such provision becomes redundant. The Constitution of India had a similar Provision in it. Constitution has given powers to the apex court and all high courts to issue the writ to enforce fundamental rights.

Who Can File Writ Petition of Mandamus

The person who files the Mandamus writ petition must fill it in good faith and have the legal right to do so. He must have demanded the performance of the duty from the respected public authority, And if that public authority refused to do so. Then the only petitioner can file a Mandamus writ petition under articles 32 and 226 of The Constitution. 

Against Whom It Can Issue

It can issue against a public corporation, public officials, inferior courts, tribunals, or the government. 

Against Whom Mandamus Writ Petition Cannot Be Issued

Under Article 361, a mandamus ought not to issue against the president or governor of a state. This writ cannot grant against the private body, except in the case where the state in connivance with the particular party defies a provision of the Constitution or a statute or acting chief justices.

Against What Circumstances It Cannot Issue

  • When duty commanded is indiscretion.
  • When the court directs to perform particular authority does not have sovereign powers to do so.
  • When the court directs to perform the duty of purely private nature, to whose performance the applicant of the writ has a legal right.
  • When the remedy is in any act or code, the matter is of enforcing fundamental rights. The argument of alternative does not stand here since it is the duty of Apex and the high court to enforce fundamental rights.
  • When the court directs to perform a duty and duty is violating the law. 

Case Law Related To Mandamus Writ

  • Vemula Prabhakar v. Land Acquisition Officer, 2001– In this case, It was held by the three-judge bench of Andhra Pradesh that if a remedy is under the Code of Civil Procedure, then it cannot say that the remedy provided under the Act is not adequate. In these types of cases, there is a restriction on issuing Mandamus writ.
  • K. Roy v. Union of India, 1981 – In this case, the petitioner filed petitions in the apex court of India challenges the validity of the National Security Act. In petitions, the petitioner asks the court to issue a mandamus to the government to invoke section 3 of the Act. Court declined the petition by stating that if parliament gives up space to the executive to act, then the court has no power to issue a directive compelling the executive to perform otherwise.
  • Suganmal v. State of Madhya Pradesh – In this case, the petitioner filed a writ of mandamus to direct the respondent to refund tax. The apex court declined the petition by stating that proper remedy can claim only by filing a suit for the refund.
  • All India Tea Trading Co. v.  Sub Divisional Officer – In this case, the land Acquisition Officer refused to pay the interest on the compensation award. The petitioner filed a mandamus writ petition. The apex court issued a writ against the land acquisition officer directing him to pay the interest.
  • Mohammed Sadique v. Union territory of Lakshadweep – In this case, the petitioner filed a writ of Mandamus before Kerala High Court directing the administrator of Lakshadweep to issue fresh notice to give 30 days to the public to submit their suggestions, comments on controversial draft Regulations. The court declined the petition and directed the petitioner to forward his suggestion within fourteen days onward to the central government.  It is upon the central government to accept the submission or not.
  • Fida Ahmad v. Srinagar Development Authority– In this case, a mandamus writ has been issued against the respondent. He has to pay the amount deposited by the petitioner inclusive of 9% interest on it within the month.
  • Raman & Raman v. the State of Madras – In this case, the court held that departmental instructions and manuals do not give rise to any legal right to the court has no authority to issue mandamus on it.
  • Birendra Kumar v. Union of India – In this case, High Court directed the telephone authorities to restore the connection within a week because the respondent wrongfully disconnected the telephone in spite petitioner pays his dues regularly.
  • Internet Technology Commissioner v. the State of Madras – The court held that writ of mandamus must not be issued when the duty is private and arising out of a contract.
  • Shiv Shankar Dal Mills v. the State of Haryana – In this case, it was held that through mandamus court compel the authority to refund the fee amount it has collected under law.
  • Shivendra v. Nalanda College – In this case, the court held that if the governing body of a college appointed a new principal, then a Mandamus writ can not issue on him because he has no legal right to be appointed
  •  Syndicate v. Union of India – In this case, the court held that issue mandamus writ against an administrative authority. When the affected individual demands justice before his right to approach the court denied by that authority.
  • S.P. Manocha v. the State of M.P. – In this case, the court refused to issue a Mandamus because the petitioner could not establish that he has the right to take admission in college. 

Conclusion

A writ of mandamus is a unique remedy and used in exceptional circumstances only. The main motive of mandamus writ is to provide a remedy for injustices. It is the tool in the hands of people against Administrative and Executive bodies, who are misusing their power.

This article is written by Megha Patel, a 2nd-year law student at The Mody University of Science and Technology, Laxmangarh, Rajasthan.

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Secularism in India and the Indian Constitution

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Introduction

The word ‘Secular’ means that a person is separate from religion and has no religious basis. Secularism means that religion is kept unconnected with the social, political, cultural, and economic spheres of life. Religion is open to everyone and gives an individual his personal choice to accept and follow any religion without any discrimination.

Philosophy of Indian Secularism

The term ‘secularism’ is like the Vedic concept of ‘Dharma nirapekshata’ which means the State’s indifference to religion. It has two principles: 

1) Religion should not interfere in the administration and policy-making of the state. 

2) People of all religions are equal before the law, constitution, and government policy.

This model of secularism is adopted by some western societies where the govt. is completely unconnected with religion.

Indian philosophy of secularism is connected to “Sarva Dharma Sambhava” (it means to treat all the religions with the same emotions, same zeal and zest irrespective of the religion a person follows and more than that it gives the idea of mankind and humanity) which suggests the same context for all religions. 

This concept was embraced and promoted by great personalities like Swami Vivekananda and Mohandas Karamchand Gandhi and they called it ‘Positive secularism’ that reflects the dominant ethos of Indian culture.

India has no official state religion. However, different personal laws are there on matters like marriage, divorce, inheritance, alimony, etc. which vary with a person’s religion.

Indian secularism isn’t an end in itself but a way to deal with religious plurality and to achieve the peaceful coexistence of various religions.

Secularism and the Indian Constitution

The core ethos of India has been a synthesis of fundamental unity, tolerance, and even faith. It’s an undebatable fact that thousands of Indians belonging to diverse religions lived together through the ages, marred through sometimes by religious revolts, economic exploitation, and social suppression being often at the rock bottom of it all.

India is the birthplace of 4 major world religions: Hinduism, Jainism, Buddhism, and Sikhism. Yet, India is one among the foremost diverse nation in terms of faith and religion. India is a country that is built on the foundations of a civilization that’s fundamentally non-religious.

The purpose of the Preamble of the Indian Constitution is to make India a Sovereign, Socialist, Democratic Republic. The 42nd Amendment Act of the constitution added the terms such as socialist and secular. The entire constitution is summarized within the preamble. This mirrors the spirit of the Constitution. The arrangement of words in the preamble is also very important. Indian society is a multi-religious society, it is having different caste, religions alongside several religious diversifications. So, all of these are divisive features somehow and if not handled carefully then it can cause a threat to the unity and integrity of the state.

All the basic principles of secularism are included in the various provisions of the Constitution. The word ‘Secular’ was added to the preamble by the 42nd Constitution Amendment Act of 1976. The Constitution emphasizes the fact that constitutionally, India is a secular country with no state religion and that the State shall recognize and accept all religions, shall not favor or protect any particular religion.

  • Article 14 guarantees equality before the law and equal protection of the laws to everyone, Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth.
  • Article 16 (1) guarantees equality of opportunity to all citizens in matters of public employment and appointment and that there would be no discrimination on the basis of religion, race, caste, sex, descent, place of birth and residence.
  • Article 25 gives freedom of conscience and of practicing any profession or religion.
  • Article 26 gives every religious group or individual the right to establish and maintain institutions for religious and charitable purposes and to manage its own affairs in matters of religion.
  • Article 27 says that no citizen shall be compelled by the state to pay any kind of taxes for the promotion or maintenance of any particular religion or religious institution.
  • Article 28 allows educational institutions maintained by different religious groups to impart religious instruction.
  • Article 29 talks about the protection of minorities’ interests. 
  • Article 30 provides rights to minorities to administer and establish educational institutions.
  • Article 51A talks about Fundamental Duties that obliges all the citizens of India to abide by the constitution and respect its institutions, ideals, national anthem and the national flag and to promote harmony and the spirit of common brotherhood and therefore to value and preserve the rich heritage of our composite culture.

Threats to Secularism

Even though the Indian Constitution declares India to be absolutely neutral to all religions, our society is submerged in religion.

The union of religion and politics has threatened Indian secularism, which seeks to mobilize voters on the basis of fundamental identities such as religion, caste, and ethnicity.

Communal politics operates through the communalization of social space by spreading myths and stereotypes against minorities, attacking rational values, and practicing divisive ideological propaganda and politics.

The politicization of any one religious group leads to the competitive politicization of other groups, thereby leading to inter-religious conflict.

One of the manifestations of communalism is communal riots. In recent times also, communalism has proved to be a major threat to the secular fabric of Indian politics.

The rise of Hindu nationalism in recent years has resulted in mob lynchings simply because they suspect people of killing cows and eating beef.

In addition, forced closure of slaughterhouses, campaigns against ‘love jihad’, conversions or Ghar-wapsi (forcing Muslims to convert to Hinduism), etc. reinforces the communal tendency in the society.

Islamic fundamentalism or revivalism emphasizes the establishment of an Islamic State based on Sharia law which directly contradicts the notions of a secular and democratic state.

In recent years there have been sporadic incidents of Muslim youth being inspired and radicalized by groups like ISIS which is very unfortunate for both India and the world.

Conclusion

It needs to be understood that just by writing the term ‘secularism’ in the books, any state cannot be truly secular. Thus, the whole ideology should be recognized with grace and should be applied equally to all people. And there should be a check on the governmental bodies for propagating any unfair practice of religious groups to acquire power.

Bibliography

  1. Dr. J. N. Pandey, Constitutional Law of India.
  2. Secularism, https://byjus.com/free-ias-prep/secularism/.
  3. Secularism and Constitution of India: Unity in Diversity, http://www.legalservicesindia.com/article/1964/Secularism-and-Constitution-of-India.html. 
  4. Secularism, https://www.drishtiias.com/to-the-points/paper1/secularism-1.
  5. What is secularism, https://www.secularism.org.uk/what-is-secularism.html.

This article is written by Priyanka Choudhary, currently pursuing BALLB from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

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Basic Structure of Indian Constitution: Eminent Judicial Pronouncements

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Introduction

The Constitution is not a mere lawyer’s document, it is a vehicle of life, and its spirit is always the spirit of the age.

Dr. B.R. Ambedkar

As the mitochondria in biology are referred to as the powerhouse of the cell, the Indian Constitution can be said to be the powerhouse for the working system of the nation. It is an instrument of control for the three arms of the nation namely Legislature, Executive & Judiciary. It helps in the systematic separation of power between the three arms of the government, safeguarding the rights & providing the limitations for the inhabitants. 

Basic structure doctrine & its evolution

As article 368 power to the parliament (legislature) to amend the constitution when the necessity arises, the article also lays the fundamental rules & procedure for amending the constitution.    

Parliament’s amending powers are absolute and they incorporate all parts of the constitution. Although, the Supreme Court has functioned as decelerate to the legislative ardor of Parliament since India’s independence. With the focal intent on safeguarding the beliefs of the constitution-makers, the Supreme Court articulated that Parliament could not contort; detriment, or reorient the fundamental characteristics of the Constitution under the plea of amending it.  

It was the case of Indra Nehru Gandhi case in which the faith of the doctrine of basic structure was established & reaffirmed. The petitioner had filed an appeal against the ruling of the Allahabad High Court refusing her win in the election as the Prime Minister. While the appeal was unsettled or in reserve at the Supreme Court, the 39th Amendment was legislated and upheld which affirmed that no court has its jurisdiction over the election of the Prime Minister. Certain other features were also added like the Rule of Law & Power of Judicial Review to the basic structure.

In the case of Minerva Mills, the Supreme Court gave lucidity to the doctrine and set out that the power of amendment under Article 368 is restricted and execution of such power cannot be absolute. A restricted amending power was important for the basic structure doctrine of the Constitution. Further, the congruence and harmony between fundamental rights and directive principles are additionally essential for the basic structure, and anything annihilating the equilibrium is an ipso facto infringement of the doctrine. 

The case of L. Chandra Kumar, again expressed that the power of judicial review under Article 32 of the Supreme Court and Article 226 The High Court is essential for the basic structure doctrine and these powers cannot be attenuated by moving them to administrative tribunals.

Golak Nath Era

The Constitution of India was amended in 1951, which set forth the much-discussed Article 31A and 31B to it. Article 31B instituted the ninth Schedule which asserted that any law gave under it could not be tested for the infringement of Fundamental Rights according to Article 13(2) of the Constitution. Article 13(2) states that the Parliament will not draft any law which abbreviates the rights given under Part III and to that degree it will be void.

An appeal was documented in the Supreme Court of India testing Article 31A and 31B on the ground that they curtail or detract rights ensured under Part III of the Constitution which is against the pneuma of Article 13(2) and thus ought to be pronounced void. In the case of Shankari PrasadThe, Hon’ble Supreme Court held that the power to amend the Constitution including the Fundamental Rights is presented under Article 368, and the word “Law” as referenced under Article 13(2) does exclude an amendment of the Constitution. There is a dissimilitude between Parliament’s law-making power, that is, the legislative power and Parliament’s power to amend or integral power.

After this, few amendments were brought to the Constitution and indeed the extent of amendments was tested in the Sajjan Singh case. The five-judge bench in Sajjan Singh dispensed the legitimacy of the 17th amendment which had added 44 regulations to the 9th schedule. However the entirety of the judges concurred with the verdict of Shankari Prasad yet without precedent for the agreeing belief by Hidyatullah and Mudholkar JJ, questions were raised on the liberating power of Parliament to amend the Constitution and reduce the fundamental rights of the residents.

The Golak Nath verdict

In 1967 an eleven-judge bench of the Supreme Court, passing its 6:5 majority judgment in the Golak Nath case, Chief Justice Subba Rao set forth the inquisitive position that Article 368, which contained provisions associated with the amendment of the Constitution, simply set out the amending procedure. Article 368 did not present upon Parliament the power to amend the Constitution. The amending power (constituent force) of Parliament emerged from different provisions contained in the Constitution (Articles 245, 246, 248) which enabled it to make laws i.e. plenary legislative power.

Consequently, the Supreme Court held that the amending power and legislative power of Parliament were basically something similar. Hence, any amendment of the Constitution should be account law as perceived in Article 13 (2).

The judgment summoned the idea of inferred constraints on Parliament’s power to amend the Constitution. Article 13, as per the majority view of judgment, manifested this constraint on the power of Parliament. Parliament could not change, limit or hinder fundamental rights because of this very plan of the Constitution and the idea of the rights allowed under it. The judges expressed that the fundamental rights were so sacred and supernatural insignificance that they could not be limited regardless of whether such a move was to get the consistent endorsement of the two houses of Parliament. They saw that a Constituent Assembly together might be invoked by Parliament to amend the fundamental rights if vital.

Kesavananda Bharati Era

This case was at first filed to challenge the legitimacy of the Kerala Land Reforms Act, 1963. However, the 29th Amendment of the Constitution set it under the 10th schedule. The appellant was allowed to challenge the 29th Amendment as well as the legitimacy of the 24th and 25th Amendments. 

  • The Kesavananda Bharati Judgement

The notable judgment was given by a 13 judge bench and with a 7:6 majority; they overruled the Golak Nath case. It was held that the power of Parliament to amend the Constitution is all over and reaches out to every one of the Articles yet it’s anything but limitless to a degree that it annihilates certain fundamental features or structure of the Constitution.

The Hon’ble Supreme Court, although, held that the 24th Amendment was legitimate as it just states what was available before certainly. It does not augment the powers of Parliament; Article 368 consistently incorporated the power and way to amend the Constitution.

Basic features of constitution according to Kesavananda verdict

Each judge set down independently, what he thought were the primary or fundamental elements of the Constitution. There was no unanimity of assessment inside the majority view. 

The majority view of the verdict, Chief Justice Sikri, clarified that the idea of basic structure incorporates:

  • Primacy of the Constitution 
  • Conservative and elected based of government 
  • Secular nature of the Constitution 
  • Separation of powers between the legislature, executive and the judiciary
  • Federal nature of the Constitution

Justice Shelat & Grover added two more essential characteristics to the list: 

  • The command to assemble a government assistance state contained in the Directive Principles of State Policy
  • Solidarity and probity of the country

Justice Hegde & Mukherjea recognized a different and more limited list of fundamental characteristics: 

  • Supremacy of India 
  • Parliamentary based feature of the country 
  • Solidarity of the country 
  • Fundamental characteristic of the individual freedom got to the residents 
  • Command to construct a government assistance state

Justice Jaganmohan Reddy expressed that components of the fundamental highlights were to be found in the Introduction of the Constitution and the arrangements into which they interpreted, for example: 

  • Sovereign elected republic 
  • Parliamentary democracy 
  • Three organs of the State

The minority view of the verdict given by Justice A.N. Ray, M.H. Beg, K.K. Mathew and S.O.N. Dwivedi additionally concurred that the Golaknath verdict had been wrongly interpreted. They maintained the legitimacy of every one of the three amendments tested under the eye of the court. Justice Ray held that all pieces of the Constitution were fundamental and no qualification could be made between its fundamental and unimportant parts. Every one of them concurred that Parliament could enact fundamental amendments in the Constitution by practicing its power under Article 368.

Conclusion

One of the most favorable attributes of the Indian Constitution is that it can be amended as per the needs of society. The basic structure doctrine gives the fine harmony among adaptability and inflexibility that ought to be there for amending the power of any Constitution. In today’s time, we can say that there is no quarrel concerning the doctrine but, the only trouble that emerges time & again is the content of the same. 

Still, the sovereign, parliamentary based and secular character of the nation, rule of law, judicial independence, fundamental rights of residents, and so forth are a portion of the fundamental characteristics of the Constitution that have seemed consistently in the Supreme Court’s pronouncements.

The article has been written by Ajay Kataria, from Dr. B.R. Ambedkar National Law University, Sonepat, Haryana.

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Is Preamble a part of Constitution: An Analysis

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Introduction

In a document, a preamble is an opening statement that gives an idea about the aims and approach of the document and the objects it seeks to achieve. Therefore, the Preamble to the Constitution of India tells us about the values and aspirations for which the nation had struggled under British rule, the intention of the Constituent Assembly, and the morals and principles of the country.

It is built on the model of the Objective Resolution, which was presented by Jawaharlal Nehru. It was moved by him in the Constituent Assembly on December 13, 1946, and adopted on January 22, 1947. However, it was adopted only after the approval of the Draft Constitution.

Components of the Preamble

There are four main components of the Preamble:-

  1. The Preamble states that the people of India are the source for the authority of the Constitution. 
  2. According to the Preamble, India is sovereign, socialist, secular, democratic and a republic in nature.
  3. It states the securing of liberty, equality, and justice for its citizens and the promotion of fraternity as its objectives.
  4. It declares the date of adoption of the Constitution, i.e., November 26, 1949.

Keywords in the Preamble

Some of the keywords which are mentioned in the Preamble are described below:-

  • Sovereign – This means supreme power. Thus, this implies that India is an independent state and no other state can rule over it or dominate it. 
  • Socialist – In India, socialism means democratic socialism. It incorporates the concept of a mixed economy where both, the public sector and the private sector exist side-by-side. 
  • Secular – The concept of positive secularism is followed in India. It means that all the religions in India are equal and they receive equal respect, status, and support from the state.
  • Democratic – This means that in India, people elect their representatives who then form the government. In other words, the government derives its power from the will of its citizens expressed through elections.
  • Republic – It is a form of government in which the citizens elect the head of the state. In India, the head of the state is the President, who is elected indirectly for a term of five years.
  • Justice – The Preamble talks about social, economic, and political justice which are guaranteed through the Fundamental Rights and the Directive Principles of State Policy given in Part III and Part IV of the Constitution respectively. Social justice refers to the just and equal treatment of all citizens without any discrimination. Economic justice means the abolition of inequality in matters of wealth, income, and possessions. Political justice means all citizens have equal political rights and access to political participation.
  • Liberty – It means the absence of restrictions on an individual’s activities and to secure the freedom of expression, thought, faith, etc. However, this liberty is not absolute and is subject to certain limitations. 
  • Equality – It means the absence of any form of discrimination and the availability of equal opportunities for all.
  • Fraternity – It implies developing a sense of brotherhood among the citizens in order to maintain unity in the country and the dignity of the individual.

Is the Preamble a Part of the Constitution?

One of the main controversies related to the Preamble was whether it is a part of the Constitution or not. This question has been dealt with by the Apex Court in the following two cases:- 

  1. In re Berubari Union case:- At the time of partition between India and Pakistan, Sir Radcliffe was given the task of demarcation of boundaries between the two nations. Radcliffe awarded Thana ‘Berubari’ in Jalpaiguri district of West Bengal to India but this was not mentioned in the award’s written text. As a result, Pakistan claimed that Berubari was a part of their territory. This dispute continued till 1958 when the Nehru-Noon Agreement was signed between India and Pakistan. According to this agreement, the territory of Berubari was to be distributed equally between both countries. However, the Union Government faced criticism and its authority of transferring the territory was questioned. The matter was then referred by the President to the Supreme Court of India under Article 143(1) of the Constitution. 

The Court stated that the Parliament can diminish territory under Article 3 of the Constitution but it cannot cede the territory. Hence, to give effect to the Agreement the Parliament will have to amend the Constitution according to the provisions of Article 368. 

Further, the Court held that though the Preamble shows the objective of the Constitution, it is not a  part of the Constitution.

  1. Kesavananda Bharati v. State of Kerala:- The main issue, in this case, was regarding the power of the Parliament to amend the Constitution. In Shankari Prasad v. Union of India and Sajjan Singh v. the State of Rajasthan, the Parliament was granted the power to amend any part of the Constitution. However, in Golaknath v. State of Punjab, the Court overruled the judgment given in earlier two cases and held that the Fundamental Rights were non-amendable. To neutralize the effect of the Golaknath case, the Parliament made some major amendments to the Constitution. 

In the present case, Kesavananda Bharati was the head of a Matha in Edneer, Kerala. He questioned the Kerala government’s efforts, under two-state land reform Acts, to place restrictions on the control of the property (Matha) and challenged the Constitution (29th Amendment) Act, 1972, the 24th Amendment Act (fundamental rights), 25th Amendment Act (property rights) and 26th Amendment Act (privy purses). This case was heard by a 13 Judge Bench. 

The Preamble to an Act is not considered a part of that Act because it is not introduced and passed by the legislative body like other provisions of the Act, however, the Preamble of the Constitution of India was introduced, discussed, and enacted by the same process as the other provisions of the Constitution. This distinction was not detected in the Berubari case, but it was pointed out in the Kesavananda Bharati case. 

Here the Supreme Court held that the Preamble is a part of the Constitution of India, but it is not a source of power or limitations. Also, the seven judges who constituted the majority emphasized the Preamble and stated that the Parliament does not have absolute power of amending the Constitution and it cannot alter the basic structure of the Constitution.

In LIC of India v. Union Government, the Supreme Court has again stated that the Preamble to the Constitution of India is a part of the Constitution.

Can the Preamble be Amended or Enforced

The Preamble is a part of the Constitution and so it can be amended, but its basic structure should not be modified. It has been amended only once through the 42nd Amendment Act, 1976. This Amendment added the words “Socialist”, “Secular”, and “Integrity” to the Preamble.

The Preamble is non-justifiable, i.e., orders cannot be passed by the Courts to enforce it. But it can be used for interpretation of the constitutional provisions if there is any ambiguity.  

Conclusion

The Preamble is an important component of the Constitution. Its scope might be limited but it is very helpful in cases of ambiguity. It limits the power of the legislation to avoid arbitrariness and also highlights the principles and ideals on which the Constitution is based. 

Bibliography

  1. Case Analysis: THE BERUBARI UNION CASE, Lawsisto, https://lawsisto.com/legalnewsread/OTA4MA==/Case-Analysis-THE-BERUBARI-UNION-CASE.
  2. Dr JN Pandey, Constitutional Law of India, Fifty-Seventh Edition.
  3. Om Marathe, The Preamble: What does it say, and what does it mean to India and its Constitution?, The Indian Express (Jan. 24, 2020), https://indianexpress.com/article/explained/the-preamble-what-does-it-say-and-what-does-it-mean-to-india-and-its-constitution-6232014/.    
  4. Percival Billimora, Faraz Sagar, India: Kesavananda Bharati v. State Of Kerala And The Basic Structure Doctrine, Mondaq (Oct. 02, 2017), https://www.mondaq.com/india/constitutional-administrative-law/633634/kesavananda-bharati-v-state-of-kerala-and-the-basic-structure-doctrine. 
  5. Preamble to the Constitution of India, Lawctopus, https://www.lawctopus.com/academike/preamble-constitution-india/. 
  6. The Preamble of Indian Constitution – Meaning and Significance, Enterslice, https://enterslice.com/learning/the-preamble-of-indian-constitution-meaning-and-significance/.

Why Kesavananda Bharati vs State of Kerala case is considered landmark in India’s independent history¸ India TV News, https://www.indiatvnews.com/fyi/what-is-kesavananda-bharati-case-vs–state-of-kerala-basic-structure-constitution-fundamental-rights-647544.

This article is written by Muskan Harlalka, a 2nd-year law student from the School of Law, Mody University of Science and Technology, Lakshmangarh, Rajasthan.

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