Tag: Constitution of India

Doctrine of Harmonious Construction

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This article has been written by Tanya Gupta, a student pursuing BA LLB from Ideal Institute of Management and Technology and School of Law, affiliated to Guru Gobind Singh Indraprastha University, Delhi. This article focuses on the rule of harmonious construction and landmark cases related to it.

INTRODUCTION

Is it law really plays an important role in society? Every individual living in society must understand the importance of law. Law is that powerful tool which keeps a society peaceful and prevents conflicts between people by regulating their behaviour. The laws are enacted to regulate the society are drafted by Legal Experts and it is well anticipated that laws enacted will not be specific and contain some ambiguity.  Judiciary plays an important role to remove and resolving these inconsistencies.

 We all are well known aware that there are three wings of the government i.e. legislature, executive and judiciary. The role of interpretation of statues comes into play and is of utmost importance for the Judiciary to render justice correctly by interpreting the statues in the way in which the society demands.

Doctrines are” a rule, principle, theory or tenet of the law”. One of the doctrines is Harmonious Construction it is one of the principles of the interpretation of statutes. They follow the principle of a statute shall be read as a whole and should confirm benefits to the people.

Doctrine of Harmonious Construction

According to Salmond, “by construction is meant, the process by which the court seeks to ascertain the meaning of the legislature through the medium of authoritative forms in which it is expressed.”

The Constitution of India makes a two-fold distribution of legislative powers:

  1. With respect to the territory;
  2. With respect to the subject matter.

Article 245, Constitution of India is related to the territorial jurisdiction and Art. 246 is related to the subject matter of lawmaking power of Parliament and State Legislature.

The list of legislation- Union list, state list and concurrent list enshrined under schedule 7 of Indian Constitution. The Union Government has an exclusive power to make laws on the subject mentioned in the Union List i.e. of national importance. The State Government has the power to make laws in subjects mentioned in the State List i.e. of local importance and for the subjects mentioned in the Concurrent List both Central and State government has exclusive power. But in the case conflicts arises Central law will prevail.

In a statue, when there are two provisions which are in apparent conflict with each other, they should be interpreted such that effect can be given to both. When there is a conflict between two or more statues or two or more parts of the statue then the doctrine of the harmonious construction needs to be adopted.

 According to this rule, a statute should be read as a whole and one provision of the act should be constructed with the reference to other provision in the same Act so as to make a consistent enactment of the whole statue and to remove inconsistency or repugnancy.

It helps to bring harmony between the list referred in Schedule 7, Constitution of India.

In the case when it is impossible for harmonization between statues or between two or more provisions of the statues, then the court’s decision regarding the provision shall prevail.

Landmark Case Laws: Doctrine of Harmonious Construction

Principles of rules of Harmonious Construction: CIT v. HINDUSTAN BULK CARRIERS (2003)3SCC57

In this landmark case, the Apex Court laid down five principles of rule of harmonious construction:

1.Courts must avoid a head-on clash of seemingly contradicting provisions and they must construe the contradictory provisions so as to harmonize them 

2. The provision of one section cannot be used to defeat the provision contained in another unless the court, despite all its effort, is unable to find a way to reconcile their differences. 

3. When it is impossible to completely reconcile the differences in contradictory provisions, the court must interpret them in such a way so that effect is given both the provisions as much as possible.

4. Courts must also keep in mind that interpretation that reduces one provision to a useless number or dead is not harmonious construction. 

5. To harmonize is not to destroy any statutory provision or to render it fruitless.

Raj Krishan v Binod, AIR 1954

In this case, two provisions of Representation of People Act, 1951, which were in apparent conflict were brought before the court.  Section 33 (2) says that a government servant can nominate or a second a candidate in the election but section 123(8) says that a government servant cannot assist any candidate in the election except by casting his vote. The Supreme Court observed that both these provisions should be harmoniously interpreted and held that a government servant was entitled to nominate or a second candidate seeking election in State Legislative Assembly.

Venkataramana Devaru v. State of Mysore, AIR 1997 SC1006

 In this case, Apex Court applied the doctrine of harmonious construction in resolving a conflict between article 25(2)(b) and Article 26(b) of the Constitution of India and it was held that the right of every religious denomination or any sections thereof to manages its own affairs in matters to religion [art. 25)(b)] is subject to a law made by State providing for social welfare and reform or throwing open of Hindu religious institution of  public character to all classes and section of Hindus.

Conclusion

As there are three organs of the government legislature makes the laws; the executive implements the law and judiciary interpret the laws. There are three lists i.e. Union, State and concurrent list. As statues are drafted by legislature there is every possibility of the situation of inconsistency, ambiguity, repugnancy etc. In such situations, the rules of interpretation of statutes come into play and the provisions are construed so as to give maximum effect to them and to render justice to the situation at hand. The principle of harmonious construction plays a very important role in interpreting the statues and is used in an abundance of cases. It is a thumb rule to the interpretation of any statue. The judiciary should interpret the statues properly and rendered justice to the citizens of the country.

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The Journey of Freedom of Press in India over the Years

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This article is written by Ishika Gupta pursuing BBA L.LB from Gitarattan International Business School. This article aims to highlight the fate of freedom of Press in India and the restrictions imposed on it.

“Our liberty depends on the freedom of the Press, and that cannot be limited without being lost.” ~ Thomas Jefferson

Freedom of Press or media means the right to express and communicate thoughts through the means of various media including electronic and print media. This right excludes the interference from any overreaching state.  

INTRODUCTION

Lord Mansfield described liberty of Press as the liberty to print and publish whatever one wants to and there is no requirement of prior permission.  Not only newspapers and periodicals but also pamphlets, circulars and every sort of publication which involves information and opinion are included in freedom of Press as said in “Sakal Papers Ltd. vs. Union of India”.

It is the duty of the government to distinguish between materials whether it is to be publicised or protected from disclosure to the public.  The materials which are to be protected may be sensitive, classified or secret or may be of national importance or the same should not be made public due to national security reasons.  

As per Universal Declaration of Human Rights, 1948, Freedom of opinion and expression is a fundamental right given to everybody and it also includes freedom to hold opinion without any interference and to receive and deliver information and opinions through any form of media. Equal treatment is given to spoken and published expression as the freedom of speech is often covered under the same laws as the freedom of Press.  Sweden was the first country to introduce Freedom of Press Act, 1766 and adopted freedom of Press under its constitution.  

However, in India, the Fundamental right of freedom of Press is implicit in the right of freedom of speech and expression under Article 19 (1)(A) of the Constitution and it is necessary for political liberty and proper functioning of democracy.  

When men cannot freely convey their thoughts to one another, no freedom is secured, where freedom of expression exists the beginning of a free society and means for every retention of liberty are already present.  As Dr. Ambedkar in his speech said that the Press has no special rights which are not to be given or which are not to be exercised by the citizen in his individual capacity.  The Editor of a Press or Manager is merely exercising the right of expression and therefore no special mention is necessary of the freedom of the Press.  

HISTORY

Indian Press has a long history right from the time of British rule in the country.  The British Government enacted a number of legislations like the Indian Press Act, 1910, Indian Press Emergency Act in 1931-32 to control the Press.  However, after the enactment of the Constitution of India, there was a change in the situation.  The Preamble of the Indian Constitution guaranteed the freedom of expression to all its citizen and the freedom of Press has been included as a part of freedom of speech and expression under Article 19.  

In Indian Express Newspaper vs. Union of India, the Court observed that the expression “freedom of Press” has impliedly covered under Article 19(1)(A) of the Constitution of India.  It means freedom from the interference of any authority which would have an effect upon content and circulation of the newspaper.  Nobody could intervene in the freedom of Press in the name of public interest. 

In “Romesh Thapar vs. State of Madras”, a law banning entry and circulation of the journal in a State was held to be invalid.  The Court held that there can be no doubt that freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by circulation.  Freedom of circulation is as essential as freedom of publication.  

Freedom of Press has three essential elements namely:

a)  Freedom of access to all sources of information.

b)  Freedom of publication and 

c)  Freedom of circulation.  

In “Prabha Dutt vs. Union of India”, the Supreme Court allowed the representatives of a few newspapers to interview Billa and Ranga, the death sentence convicts, as they wanted to be interviewed. 

However, in India, Press has not been able to practice its freedom to express the view completely as there are various instances when the freedom of Press has been suppressed by the legislature.  In case of “Brij Bhushan vs. State of Delhi” and “Virender vs. State of Punjab” prohibition of newspapers from publishing its own views or view of correspondents about a topic has been held to be a serious encroachment on the freedom of speech and expression.  

In “Sakal Papers Ltd. vs. Union of India”, the Daily Newspapers Order, 1960, which fixed the number of pages and size of newspapers was held to be violative of freedom of Press and not a reasonable restriction under Article 19(2).  

RESTRICTIONS

The Indian Constitution does not mention the word “Press” expressly under the right to freedom of speech and expression.  Hence, it is included under general fundamental rights given under Article 19 and therefore, is subject to restrictions under Article 19(2).  

Clause (2) of Article 19 of Indian Constitution, enables the legislature to impose certain restrictions on free speech under following heads:

1)  Sovereignty and integrity of India: This ground was added to Clause (2) of Article 19 by the 16th Amendment.  Under this Clause freedom of speech and expression can be restricted so as not to permit to anyone to challenge the integrity and sovereignty of India or to preach cession of any part of India from the Union.  

 Sedition: Sedition embraces all those practices whether by word, or writing which is calculated to disturb the tranquillity of the state and lead ignorant persons to subvert the Govt. Sedition is not mentioned anywhere under Article 19 (2) as a ground of restriction on freedom of speech and expression.  But it has been held in “Devi Saren vs. State” that sections 124A and 153A of Indian Penal Code impose reasonable restrictions in the interest of public order and is saved by Article 19 (2).

2)  Security of the State: In the interest of security of the State, reasonable restrictions can be imposed on freedom of speech and expression. In “Romesh Thapar vs. State of Madras”, the Supreme Court said that there are different types of offences against public order but not every public disorder amounts to a threat to the security of the state.  The term security of the State applies only to higher grades of public disorder like rebellion, waging war etc.

3) Friendly relations with Foreign States:  By the first amendment, this provision was added with the objective to prohibit unrestrained malicious propaganda against a foreign-friendly State which may jeopardise the maintenance of good relations between India and that State.

4) Public Order:  The Supreme Court said that public order denotes that state of tranquillity which prevails among the members of political society as a result of internal regulations enforced by the government.  The public order also includes public safety and public safety means the safety of the community from external and internal dangers.  In “Central Prison vs. Ram Manohar Lohia”, the Court rejected the arguments that the instigation of a single individual not to pay tax would itself destroy public order.   

5)  Decency or morality: A publication is indecent or immoral, if it tends to produce negative thoughts and corrupt minds of those who are opened to such immoral influences and into whose hands, a publication of this sort is likely to fall.  Section 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression on the ground of decency or morality.  

6)  Contempt of Court:  If the freedom exceeds the reasonable and fair limit and amounts to contempt of Court, the restrictions can be imposed.  The contempt of Court can be either of two types, civil contempt and criminal contempt.

7) Defamation:  A statement which injures a person’s reputation amounts to defamation.  Section 499 of Indian Penal Code lays down the punishment related to defamation.  In Auto Shankar Case i.e. “R. Rajagopal vs. State of Tamil Nadu”, the Supreme Court held that no authority can impose a prior restriction upon the publication of defamatory material against its officials.

8) Incitement to an offence:  This ground was added by the first amendment.  Offence shall mean any act or omission made punishable by law and freedom of speech and expression cannot confer a licence to incite people to commit offence.  

Despite all this suppression, difficulties, restrictions the press has managed to achieve a lot of success and fame. It has been a long journey but the press has proved itself useful every time.

As in the case of Jessica Lal i.e. “Manu Sharma v State of Delhi”, Jessica was killed by Manu Sharma the son of Haryana minister Venod Sharma as she refused to serve him liquor in the restaurant. The case could not get success at that time due to lack of evidence but it got reopened due to media and public outcry. Organisations like Tehlka and NDTV have been particularly influential and made Venod Sharma resign.

Similarly, in Priyadarshini Mattoo’s Case, the victim was a law student and got raped and murdered by Santosh Kumar her colleague as she refused his proposal. Santosh Kumar was the son of an IPS officer and the case finally got judgement after a long trial due to the significant role played by the media.

CONCLUSION

Freedom of press is essential for the proper functioning of the democratic process. Democracy means Government of the people, by the people and for the people; it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. This explains the constitutional viewpoint of the freedom of press in India. It has been sixty years since India became Republic & commencement of the Constitution there is been a lot of ups & downs in our democracy & the press also has come across age.

Thus, we can conclude that the time has come for the press of the largest democracy of the world to work with hand-in-hand with the judiciary for the welfare of its subjects. The day is not far away when there will be no eclipse of injustice & the sun of justice will shine brightly forever.

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Is Indian Constitution Federal in Nature?

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The author i.e. Aviral Shrivastava is a first-year student of the Institute of Law, Nirma University. This article is being written with the view to erase the ambiguity regarding the nature of the constitution and is being illustrated in the simplistic view possible.

INTRODUCTION

India’s constitution has an illustrative history where it is described as a union of states, a Sovereign, Socialist, Secular and Democratic Republic with a parliamentary form of government and this parliamentary form of government which the constitution envisages is considered federal in structure with unitary features. It is the precedent or the foundational law of the country which ordains the fundamental principle on which the government (or the governance) of the country is based. It lays down the framework and principle functions of various organs of the government as well as the modalities of interaction between the government and its citizens.

Sudden discrepancies have aroused with regards to the nature of the constitution in the contemporary scenario where questioning relating to the true federalism is taking place. Though the Indian Constitution is quasi-federal in nature i.e. federal in structure and unitary in spirit but this notion has been slightly attacked when the pillars of federalism have started to vanish where the unitary spirit has overlapped the federal structure and this picture has raised the questions for the existence of federalism in India.

The thought of federalism is first to be surely known as it expresses a sort of government wherein the force is partitioned between the Centre and the corresponding states and which shows polarity or incongruity with a unitary government, where a balance is being implemented between the centre and state to cope up with the federal spirit of the

Solidly, in federalism, there is a two-level of Government with all-around doled out forces and capacities. The Central and the State governments work in coordination successfully keeping up parity and simultaneously acting autonomously. Consequently, this government political structure gives an established arrangement in keeping up solidarity and decent variety.

Federalism In India

While concerning the presence of Federalism, the essential substance which charms its place of presence is the way that federalism requests for the constitution of a country to be Suprema Lexa i.e. where it is considered as the incomparable rule that everyone must follow and its last translation is vested in the hands of an autonomous and solid court which is settled under the Article 131 of the Constitution of India which ensures the matchless quality of the constitution by shielding the balanced division between the centre and the states from the infringement from the unitary governments which is the most fundamental part for keeping up the bureaucratic standard as this pre-eminent power helps in administering the harmony between the centre and the states and along these lines building up an ideal request in the general public and furthermore for this situation the intensity of legal audit should be viewed as which sets up an equalization of forces between the centre and the states in the endeavor to forestall the upsetting of forces by any of the two.

It is well being noticed that the psychology behind federalism is a craving for an association without a unitary structure which is depicted by DICEY speaking to the unity of a state and the separability of its units yet this is no country on the world which totally satisfies the essential precincts of federalism.

It is relevant to take note of that in a nation there ought to be a harmony between the hypothesis and the use of law where the constitution goes about as the hypothesis and the government goes about as the application of law a few nations may have a federal constitution and some may have a federal government and accordingly, it brings a point that to decide the federal quasi-federal and non-bureaucratic nature of the nations it gets basic to watch or observe the federal formal constitution as well as its training is required to be found out.

With regards to India, it is important to note that it isn’t totally federal however having a unitary column installed in it where the conspicuousness has been given to the Union Governments and the division between the central governments and the states governments is appropriately adjusted by the text of the constitution where the constitutional provisions in India on the subject of the distribution of legislative powers regarding the matter of conveyance of federal powers between the Union and the States which are characterized under a few articles; the most significant being explicitly under articles 245 & 246 of the Constitution of India.[1] The Seventh Schedule to the Constitution of India characterizes and indicates the portion of forces and capacities between Union and States. It contains three lists; i.e. 1) Union List, 2) State List and 3) Concurrent List.[2]

Another fact which should be referenced is that due to these provisions the central government just as the state governments go about as free and juridical character which is corporate in nature and are given entire forces as for administration and legislation as indicated under the constitution where Article 245(i) comes to the scene which expresses that the Parliament can “make laws for the entire or any piece of the domain of India” and the state councils may correspondingly “make laws for the whole or any part of the territory of the State”,[3] where the union is given powers under the Union List, states under the state list and thirdly Concurrent list where the centre and the states both are given the simultaneous jurisdiction and thus our nation follows the substance of federal principle with respect to the division of forces.

Another fundamental attribute to be noted here is that neither the centre nor the states have the ability to change or alter the provisions relating the union and the state’s division i.e. unless a particular majority is the available amendment couldn’t be validated just when as determined under Art. 368 of the Constitution of India in regards to the Amendment methodology where two-third of the majority has been proposed by the procedure for the ratification.

Where in instances of serious issues in the states if the country as in India has the provision to coordinate in such a circumstance by the method of interstate disputes resolution rather the Centre surpassing the constrained powers of the state yet by the interstate coordination and participation where the balance between the centre and the states are directed by shared acknowledgement or mutual recognition where under the Articles 261, 262 and 263 an Interstate committee has been set up concerning build-up common collaboration i.e. mutual cooperation and to support solidarity and decent variety and cop up with a significant prerequisite of a federal Constitution.

Reasons behind ambiguity in the federal structure

Seeing the fundamental federal feature of our constitution something else is likewise being noted in the present contemporary situation which as political improvements rotates around the Citizenship Amendment Act and the National Register of Citizens (NRC) have outlined a portion of the significant breaks in the federalism include where the forces and the privileges of the states are at risk.    

With the introduction of outdated and unconstitutional rules, this principle has been abused as banning the collective assembly of more than four people shutting down the Internet in five states monitoring the students’ and young people’s social media activity; the incarceration of minors and the attacks on students and the young people damaging libraries in colleges have created a modern notion of the constitution in which certain obligations and unjust rules are imposed on states that have seriously eroded the federal pillar as this new image has shaken the equilibrium between the centre and its relationship between the state and which has not been officiated now and this has strongly been in derogation with Art. 245 and Art. 246.

Penal sanctions are also placed if the States are unable to comply with the Union’s clear and effective guidelines pursuant to Articles 256,257,353 and 360, which also contain emergency provisions, and if there is a violation on the part of the states, there are certain punishments which are formulated and these laws put greater weight on the side of the central government as compared with the states.

This causes a tussle between the state and the centre as could be illustrated as a fight between the Delhi Government and the Union governments where the federal structure could be well questioned as to the powers of the union government oversides or offsets the powers of the Delhi Government. And this violation of constitutional rights and values has also troubled the federal spirit where the independence of the states is not respected and is in contravention of the text of the constitution.

The law is also null and void by observing Article 13(2) which states that the State shall not make any law which removes or abbreviates any of the rights guaranteed under Part III of the Constitution, and to the extent of such contravention.[4] It is well being noted that such a provision is not being gratified in the present scenario where the nature of the constitution is somewhat moulded so as to have a solid unitary structure but that is not giving the same independent powers to the state thus affecting the federal pillar of our democracy. Another important point to note is that Federalism specifies the point of equal status that substantiates the equal opportunities for the states as well as the centre, imbibing the legal and corporate status without any kind of the inequality present in them. Indians were once in many scholarly editions described as Homo Hierarchicus, a species of human who most intensely practised inequality,[5] where there should be equality if not absolute but atleast there should be a balance in the powers between the centre and the state.

But observing the contemporary scenario seeing the new ruling government there is a clear observation that the laws made by the centre clearly support themselves rather than the state itself where the laws like CAA, NRC and NPR are without proper observance of the rights of the people.

Conclusion

It would be rightly concluded that the federal nature in our country is only present theoretically in our constitution and practically this is not followed by the governments because our unitary sphere is taking the larger part of the legislations in many sectors and thus causes the state to become dependent on the centre which snatches away their independence. It is also correctly stated that “our constitution will be both unitary and federal according to time and circumstances” and it, therefore, should be properly emphasised that, while the essence of the constitution is declared to be federal and unitary i.e. it is in fact quasi-federal which could also be substantiated as federal in structure and unitary in spirit.

Though it is being affirmed that the nature of the constitution is quasi-federal i.e. partly federal in nature but in the contemporary scenario it is pertinent to note that the federal pillar of our democracy is being shaken where the states’ rights are not being respected and they are trapped in a web of centres flawed laws which are in derogation with many of the human rights of an individual and the centre is playing a tyrannical role where the state’s recognition is not respected.

In the current pandemic situation, only a federal democracy could be able to cope up with such a situation as the proper relationship and a proper balance between the Centre and state relations is a very essential feature which needs to be noted as when such balance exists it definitely helps to make the implementation of such rules by the subjects of the state i.e. the citizens more suitable and apt.

[1] SEVENTH SCHEDULE TO THE CONSTITUTION OF INDIA, WIKIPEDIA.

[2] “SEVENTH SCHEDULE”. www.constitution.org.

[3] India Const. art. 245 cl. 1.

[4] India Const. art. 13 cl. 2.

[5] The Guardian view on India at 70: democracy in action.

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