Tag: #ConstitutionofIndia

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 their intended goals without negatively impacting other marginalised groups.

Transformation of the Socioeconomic System

The 105th Amendment Act’s implementation of the Economically Weaker Sections (EWS) quota policy has the potential to cause enormous socioeconomic upheavals in India. While the entire scope of these changes will become obvious over time, a number of potential consequences can be predicted.

1. Increased Educational Access: EWS reservations give economically disadvantaged people easier access to quality education. As a result, a larger pool of qualified and educated workers from varied origins may emerge, potentially contributing to economic growth and development.
2. Expanded Employment Opportunities: The programme intends to solve unemployment and underemployment among economically disadvantaged groups by reserving government job openings for EWS candidates. This can result in a higher standard of living for EWS households and a decrease in poverty rates.
3. Reduced Income disparity: If implemented correctly, the EWS reservation policy may contribute to lowering income disparity by providing chances to individuals who were previously marginalised owing to economic constraints. EWS reservations can act as a social mobility mechanism, allowing individuals to break the cycle of poverty and access better prospects for themselves and their children.³
4. Diverse Representation: The policy may result in more diverse representation in educational institutions and government bodies in the long run, encouraging a sense of inclusion and equity.
5. Problems and Adjustments: It is crucial to emphasise that the policy offers problems, such as ensuring that infrastructure and resources can meet the increased demand for education and employment possibilities.⁴

The socioeconomic transition brought about by the 105th Amendment Act has a lot of potential, but it also needs to be carefully monitored, evaluated, and adjusted if it is to reduce economic inequities while retaining the effectiveness of institutions and services.

Implications for the Future and Problems

The introduction of EWS reservations in India via the 105th Amendment Act has far-reaching ramifications for the future, as well as a number of obstacles that must be properly addressed.

Future Possibilities:

1. Socioeconomic inclusiveness: EWS reservations have the potential to improve socioeconomic inclusiveness. The strategy attempts to eliminate income disparity and create a more balanced society by offering chances to economically disadvantaged individuals.
2. Diversity in Education and Employment: By including EWS candidates, educational institutions and the workforce can become more diverse. This variety can broaden viewpoints and produce a more welcoming workplace.⁵

Future Obstacles:

1. Effective Implementation: It is a huge problem to ensure that the benefits of EWS reservations reach the intended beneficiaries. Transparent methods and proper implementation mechanisms are critical.
2. Infrastructure and Resources: The unexpected increase in the number of EWS students and job seekers may put educational institutions and government organisations under strain. To handle this transition, adequate infrastructure and resources must be allocated.
3. Balancing current Quotas: Finding the correct balance between EWS reservations and current quotas for SC, ST, and OBC populations is a major difficulty. The strategy should not unintentionally limit chances for historically marginalised communities.
4. Political Manipulation: There is a concern that reserve policies will be manipulated for political advantage. These policies must be safeguarded against abuse.
5. Continuous Evaluation: To assess the long-term impact of EWS reservations, continuous evaluation and policy revisions may be required to guarantee the programme accomplishes its socioeconomic aims.⁶

To summarise, the future of EWS reservations in India is dependent on their efficient implementation, overcoming hurdles, and remaining focused on the larger goal of eliminating economic disparity and promoting a more inclusive society.

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Endnotes:

1.  The Constitution (One Hundred and Fifth Amendment) Act, 2019. “Gazette of India”
2.  The Times of India, “10% quota for poorer sections in general category challenged in Supreme Court,” January 10, 2019.
3. Kumar, S. (2019). “Impact of Reservation Policy in India: A Socio-Economic Analysis.” International Journal of Recent Research Aspects, 6(1), 1-10.
4. Dreze, J., & Khera, R. (2017). “Understanding Leakages in the Public Distribution System.” Economic and Political Weekly, 52(28), 49-55.
5. Kundu, T., & Kanbur, R. (2019). “Economics and Politics of Reservation in India: An Overview of Emerging Issues.” Cornell University ILR School, Ithaca, New York.
6. Thorat, S., & Attewell, P. (2007). “The Legacy of Social Exclusion: A Correspondence Study of Job Discrimination in India.” Economic and Political Weekly, 42(41), 4141-4145.

This article is authored by Srishti Singh, a pass-out student at O P Jindal Global University, Sonipat

S.no	Contents
1.	Introduction
2.	Antecedents and Evolution of the RTI Act in India
3.	Importance of the Act
4.	Impact of the Right to Information Act, 2005
5.	Cases Related to the Right of Information Act, 2005
6.	Conclusion

Introduction

“A basic tenet of a healthy democracy is open dialogue and transparency”, said Peter Fenn. The RTI Act was passed by the Parliament of India on June 15, 2005, and it came into existence on October 12, 2005. Every citizen of India has been bestowed the fundamental right to free speech and expression under Article 19(1)(a) of the Constitution of India. The right to information regarding matters of public interest becomes a pivotal point when it comes to forming opinions regarding the governance of the nation. RTI assures the citizens that the rights they possess will allow them to have complete transparency on the part of the government. In modern times, the educated as well as the illiterate classes of society want to be informed regarding the functioning and operation of the administrations in the country. They want to be apprised of how their funds and taxes are being utilized by the government. The citizens look forward to maintaining a system of scrutiny of the administrative campaigns in order to keep a check on swindling and corruptible activities. The paramount objective of the Right to Information Act, of 2005, is to strengthen the functioning of the authorities and make sure that no anti-people policies are carried out, and if any such activities are detected, they can be backed by legitimate grounds. India has evolved over a time period of 82 years from being a country where the citizens had no right to demand information regarding the secretive official Acts passed by the colonial officers to being a nation where the Constitution vests the rights of citizens to have access to every information regarding the working of the state machinery wherein the citizens are allowed to know the power and authority vesting in the officers, the utilization of the funds, as well as “information” involving and pertaining to press releases, records, notices, circulars, contracts, memos, models, public data, and reports released by Ministries, public sector undertakings, etc. The Hon’ble Supreme Court has also substantiated at times the need for an act that allows the citizens to have knowledge in order to better judge and inspect the functioning of the government.¹

Antecedents and Evolution of the RTI Act in India

• Universal Declaration of Human Rights, 1948: It mandated the media to provide anyone and everyone seeking any information in regards to the government, irrespective of the frontiers, with the right medium to receive that information. It cleared the way forward for demanding the right to information in India.
  
• International Covenant on Civil and Political Rights, 1966: It encouraged the idea of freedom of speech and expression, under which people shall be provided with transparency to seek information and proclaim opinions and ideas.
  
• Mazdoor Kisan Shakti Sangathan: In the 1990s, the organization started the movement relating to RTI with regard to increasing lucidity at the village governance level and demanding the minimum wage. Although the movement didn’t turn out to be a successful moment because of a lack of a substantial platform and failed due to having a rural background, it still managed to draw the attention of significant personalities, including the media, lawyers, jurists, dignitaries, academicians, bureaucrats, and legislators, and led to the formation of the National Campaign on the People’s Right to Information (NCPRI)’. A ‘Shourie Committee’ was formed, which was led by the former bureaucrat H.D. Shourie, who was also a consumer rights campaigner. In July 2000, the draft prepared by the Shourie Committee was presented along with certain amendments and alterations and came into existence as the ‘Freedom of Information Bill, 2000’. The parliament passed the ‘Freedom of Information Act’ in 2002, and it’s a precedent of the current Right to Information Act that was passed by the parliament in June 2005 and came into implementation in October 2005.²

Importance of the Act

• Accountability: According to Abraham Lincoln, “Democracy is a rule of the people, for the people, and by the people” (Democracy is a rule of the people, for the people, and by the people). As a result, all authorities operating at various levels are accountable to the nation’s citizens, and each citizen upholds the right to hold the authority in question accountable for its actions. RTI has established a responsibility factor that applies to all government employees, not just those who are elected to serve in that capacity.
  
• Transparency: The Constitution has provided several rights to the government to work freely in an independent and cohesive manner, maintaining certain boundaries regarding their work profile, but RTI has also maintained within its provisions that the government should work on terms that are favourable to the public and nation, and to solidify that fact, it lays down that the public interaction on the part of the government should be absolutely transparent. Citizens possess the right to knowledge about where and how the taxes given by them are being utilized by the government, how the government functions, and what measures are being taken by the government to run the country.
  
• Rule of Law: RTI has also played a role when it has come down to posing certain limitations on the discretionary powers of the authorities. It has been established that the law is the supreme authority, and nobody has the power to cross the supremacy of the Constitution of India. Improvisations in regards to seeking judicial actions in cases of denial of information on inquiry have established a control on the powers of the government and have increased the efficiency rate of work in the government offices as well.
  
• Role of Media: Since the implementation of RTI, the role of the media and press has also received attention. From educating the public about their rights to publishing public opinion polls and assessments of the government and officials, the media has played a significant role in keeping the public informed about how the government operates, everything that is happening in the world, all international deals that are being made with other countries, and government policies.³

Impact of the Right to Information Act, 2005

RTI was implemented in order to improve communication between the government and its constituents. It has established the nation’s official definition of moral leadership. Keeping citizens and authority on an equal footing has caused changes in the orientation of superiority. The citizens now have a voice and a manifesto through which to voice their concerns, limit the authority granted to government officials and authorities, and monitor the services that are being rendered to them. The Act outlines a number of provisions and actions that the public may take to voice complaints and inquiries about any work done by any public office.

Earlier, many people were unable to benefit from the schemes and amenities that the government used to publicize, but due to a lack of familiarity and awareness, they had no access to any of those. However, since the RTI Act, the government has mandated that several sectors correspond and make sure that the general public consumes the benefit of every such service.⁴

RTI has proven to be successful in manoeuvring the corruption rate in the country, which was one of its prime agendas. Now every person sitting in government offices on a chair fears exposure, and it has led to improvisation in their accountability towards the nation. It has led to a significant diminution in bribery. It has made the public officers more service-oriented; people have started taking their jobs seriously because the general public wants an on-paper record of whatever roles the officers are imparted with and whether they are doing their work with scrupulousness.

Every level of administration in our nation, from the local to the federal, has greatly benefited from it. It has highlighted the seriousness of the statement that everyone holding a position of authority is answerable to the public in every way permitted, including giving written testimony upon request or producing any document or report for inspection. It calls for the full disclosure of all records that the public has a right to access.

Cases Related to the Right of Information Act, 2005

In the case of Hamdard Dawakhana vs. Union of India⁵, the Drug and Magic Remedies (Objectionable Advertisement) Act had put restrictions on advertising drugs with claims of having magical properties, which was challenged in court, saying that it was restricting their freedom to advertise. The Supreme Court held that advertising is no form of speech but a mode of trade and commerce, and therefore no such ideas can be put forth that might affect the purchasing power of the buyer. The customers have the right to information regarding what they’re purchasing.

In the landmark judgment of State of U.P. vs. Raj Narain⁶, Justice K.K. Matthew noted that in a “government of responsibility like ours,” where every officer is bound to be accountable for their actions, there has to be maintained a transparent relationship between the public and the citizens, and the public should be provided with every piece of information that relates to public affairs.

The court in the case of S.P. Gupta vs. Union of India⁷ granted constitutional validity to the Right to Information, highlighting the spirit of Article 19(1)(a)  and drawing prominence to the fact how essential openness of government is when it comes to establishing the notion of an ideal democracy, and it drew a parallel significance of the Right to Information with the freedom of speech and expression by noting that the Act follows a correct line of interpretation of the Fundamental Right.

The court again emphasized the contribution of freedom of speech and expression in running the country in a systematic manner while pronouncing its judgment in the case of Union of Civil Liberties vs. Union of India⁸, where everyone has a right to speak against what they do not consider a righteous attempt at the management of policies.

Conclusion

So far, we’ve understood the magnitude of the word ‘information’ that covers under its ambit every public figure, report and stance of the government that is released at different stages of their governance in which they bring amendments, pass orders and legislation, herald schemes and policies, several documents related to public interest matters, and the connotation of the right to sustain it. The crux of introducing the Act is to provide a platform for the general public to express their opinions regarding what they consider to be the right policy for them and whether or not they’re satisfied with the utilization of the resources for which they are paying a contribution and share to the government. The act was implemented because only when the citizens of a nation are aware of the affairs of the country and when the population is educated regarding matters concerning them can they decide a future for the country and can we progress in the world scenario. The passing of the act was the need of the time so that no one suffers from a lack of government information and everyone has a record of every function of the legislators of our country. It is a transition from the arbitrary system of governance to an unbiased and transparent form of government where everybody has a right to be informed and be given a reason for every course of action being taken.

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Endnotes:

1. The Right to Information Act, 2005: https://rti.gov.in/RTI%20Act,%202005%20(Amended)-English%20Version.pdf
2. Second Administrative Reforms Commission: https://darpg.gov.in/sites/default/files/rti_masterkey1.pdf
3. Report of the Workshop on The Right to Information and the Media Past Experiences and Future Possibilities: https://www.humanrightsinitiative.org/programs/ai/rti/india/workshops/wksp_rep_on_rtiact05_pune.pdf
4. Guide on the Right to Information Act, 2005: https://rti.gov.in/RTICorner/Guide_2013-issue.pdf
5. Hamdard Dawakhana vs. Union of India, P. (CRL)558/2016
6. State of Uttar Pradesh v. Raj Narain, 1975 AIR 865, 1975 SCR (3) 333
7. S.P. Gupta v UOI, AIR 1982 SC 149
8. Article 19 of the Constitution of India
9. Union of Civil Liberties vs. Union of India, AIR 1997 SC 568, (1997) 1 SCC 301

This article is authored by Vanshika Manish Tiwari, a second-year student at Vivekananda Institute of Professional Studies, GGSIPU.

S.no	Contents
1.	Administrative Discretion: What It Is and What It Means
2.	Motives for the Growth of Discretionary Powers
3.	Indian system of administrative discretion
4.	Indian Constitution and Administrative Discretion
5.	Judicial Control
6.	Judicial oversight of the discretionary administrative powers
7.	Judiciary’s Function and Administrative Discretion
8.	Conclusion and Recommendations

Administrative Discretion: What It Is and What It Means

Administrative discretion is the combination of the phrases administrative and discretion. It refers to the discretion that the administration uses to carry out its duties. We’ll talk about discretion first, then we’ll highlight administrative discretion. Discretion is the capacity to make choices. 

Or, to put it another way, the authority to act by their intelligence. Regarding his property, each person is free to donate, sell, or otherwise dispose of it as they see fit. He can make a will if he decides he wants his property to pass down through his ancestors. He can sell his land if he chooses not to pass it down to his ancestors. Nobody is allowed to impede his independence.

Administrative discretion differs from individual discretion. There is no constraint on personal choice. However, administrative discretion means they have the freedom to choose among the available possibilities. 

Lord Cock – Understanding the difference between truth and lies, right and wrong, and reasonable and outrageous behaviour is the science of discretion. They must not carry out their tasks out of self-interest or to satisfy their desires.

The Supreme Court stated in State of Punjab v. Khan Chand^[1] that the question of specifics must be left in the hands of the authorities working by an enactment due to the complexity of the issues that a modern state must deal with. For the sake of exercising the powers granted to them by an enactment, the relevant authorities must be provided discretion.

In governance and law, administrative discretion is the main source of creativity. All administrative actions must be conducted with great caution. It shouldn’t, however, be allowed to run unchecked lest it become arbitrary and undermine the fundamentals of the rule of law.

Administrative discretion is required

When Dicey created the concept of the rule of law, the laissez-faire philosophy was in vogue. The upkeep of peace and order was the sole responsibility of the police state at the time. More and more nations adopted the idea of a welfare state as the philosophy of laissez-faire fell out of favour over time, and there was a pressing need for both social and economic progress. It is now hard to create a government that can run smoothly without giving the executive discretionary power, whether in communist or capitalist regimes.

Motives for the Growth of Discretionary Powers

The growth of administrative discretion is due to a variety of factors. Some explanations are provided below.

1. Today’s administration has challenging and numerous issues that cannot be resolved by a single rule.
2. Because the majority of those issues are brand-new and are emerging for the first time, a general rule cannot be applied to them.
3. Although it is not always feasible to predict every issue when it does arise and cannot be resolved under the circumstances, administrative authorities must be contacted.
4. Each situation has a unique set of circumstances, thus applying one rule to them all could result in injustice.

Administrative authorities are free to use their authority as they see fit, given the situation. They can create and put into practice a variety of rules to address problems that arise abruptly. But once the administration has addressed every issue and changed the exercises and guidelines in those puzzles. It might lead to a lot of problems, some getting worse—

1. No one may be aware of the regulation that will be applied in his case.
2. Because every situation of the same nature will be handled under different rules, it will be a blatant violation of Article 14, Right to Equality.
3. Administrative officials might abuse their discretion in some circumstances.

The administrative authority must be chosen as a general rule based on the aforementioned arguments.

Administrative authorities must be used equally in all of their tasks, whenever practicable. If it doesn’t continue, it can not only lead to administrative violence but also lose the public’s faith. When using administrative discretion, the administration must take into consideration how comparable situations have been handled in the past; otherwise, this would constitute discrimination and put many barriers in the way of inclusive progress.

Indian system of administrative discretion

India has also adopted the welfare state philosophy; thus it was important to grant the administration discretionary powers because there was only one body that could perform all tasks.

Government participation and interference in all public activity that was done after this notion was adopted. The state now considers the development of the public and the state. Before it, the state performed ministerial duties and thought primarily about itself. It wasn’t interested in any public issues. Now that the state is beginning to consider the general people and their facilities, it has placed the full weight of all obligations on the administration. But without the ability to make decisions, it was impossible.

Administrative officials thought they needed the ability to make decisions immediately. They are powerless to act without it. Therefore, the state granted them discretionary powers. However, no contemporary government can run effectively without giving administrative officials some degree of discretion. The occurrence of specific events or the emergence of specific unanticipated situations determines whether or not action is necessary. They must occasionally be decided, and the administrator must reply by making use of the authority delegated to her.

The Supreme Court had ruled that with regards to the administrative discretion granted by law. The exercise of discretion is anticipated to be fair, just, and reasonable; it cannot be motivated by personal desires or interests. It must not be speculative, arbitrary, or illogical. It must fall within the parameters that are reasonable for a genuine individual.

Indian Constitution and Administrative Discretion

If a law is passed by a capable legislature, it cannot be contested on the grounds of purported bad motives or enigmatic intents. Any statute that grants discretion to the executive must include restrictions on how that discretion may be used. Our constitution contains several clauses that deal with discretion. The highest Executive in India is the President. He used a lot of his discretion. If he determines that any of the conditions listed in Article 352 have arisen, he may declare a national emergency. He has the authority to enact and enforce laws. When there is no majority party, he has the authority to dissolve the Lok Sabha. He is free to create the government at his discretion. Additionally, he has the authority to commute sentences or grant pardons to anyone who has been found guilty of crimes under Articles 72 and 161. A state may also be governed by him as president under Article 356. But there are some limitations to all of these powers. These are not random acts of nature. Even the judiciary has used some discretion; when judges sentence guilty parties, they have control over whether to impose a fine, an incarceration term, or both.

Judicial Control

The entire body of law governing the judicial supervision of administrative discretion is predicated on the idea that the courts, who have the final say in controlling the discretionary powers granted to the administration, are where democracy begins. The absence of judicial oversight of administrative activity may encourage executive overreach. The principles of democracy and the idea of the rule of law would be violated in such a situation.

In the case of Kesavananda Bharti v. State of Kerala^[2], it was decided that judicial control is not only a crucial component of the Indian Constitution but also an element of its fundamental framework, which cannot be altered even through a constitutional amendment. The foundation of judicial oversight of administrative action is the idea that all authority must be exerted within the bounds of the law. The courts do not get involved in administrative decisions unless they are arbitrary or otherwise in violation of the Constitution. The courts have appellate and supervisory jurisdiction when deciding whether an administrative action is legal.

Judicial oversight of the discretionary administrative powers

Because the English parliament is supreme, no statute may be challenged by the judiciary on any basis. No statute can be subjected to judicial scrutiny by a court. However, the court can limit administrative discretion under specific circumstances, including abuse of discretion and supra vires.

The United States of America shares India’s practice of judicial review. The court cannot impose its views instead of using discretion in both countries. For the proper application of the Rule of Law, it must be under control. Administrative discretion must be used by the law, not individual discretion. If the administration is given complete freedom to carry out outsider duties, a dictator may be in place. Therefore, it’s important to limit administrative discretion.

Judiciary’s Function and Administrative Discretion

To limit discretion, the court has adopted many new concepts recently. These justifications successfully exercise discretion. These guidelines are the ultra-vires doctrine and the misuse of administrative discretion, an improper motive, an irrelevant factor, malice, unreasonableness, a violation of protocol, and administrative discretion.

In the case of Ram Manohar Lohia v. State of Bihar^[3], the authority was permitted to hold a person under the defense of India provisions to maintain public order. The petitioner was detained to stop him from engaging in a way that might harm the upkeep of law and order. The court overturned the detention order. The court held that the notion of law and order was more expansive than the notion of public order.

In Air India v. Nargesh Meerza^[4], the issue at hand was the legality of a service regulation put out by Air India that called for the termination of an air hostess’ employment upon the occurrence of her first pregnancy.

The regulation was deemed by the Supreme Court to be highly arbitrary, illogical, offensive to the ideals of a civilized society, and interfering with the natural progression of human nature. It is not a disability, but rather a normal side effect of marriage and an unchangeable aspect of married life. Therefore, it has been demonstrated that administrative discretion is necessary today and that its monitoring is essential. Judicial review is a useful tool for managing it. The judicial assessment of administrative discretion thus has this additional dimension. Everyone is protected from discrimination by Article 14.

Conclusion and Recommendations

Although it must be granted, administrative discretion must be constrained. And a limitation needs to be put in place. It implies that a process should be set up for the administration. So let me highlight a few ideas that are provided below.

1. Administrative personnel cannot achieve their goals without judgment. They are unable to realize the welfare notion, hence the state must grant discretion but not access.
2. Some constraints (restrictions) should be put in place when the state grants discretion.
3. The discretion must be removed while adhering to these limitations.
4. The language of the legislation, which grants discretion, must be unambiguous and explicit.
5. Any person who suffers a discretionary injury must be given compensation.
6. Discretion must be subject to court review on more than just a few grounds, such as mala fide intent, arbitrariness, discrimination, and irrelevant consideration. Likewise on legitimate grounds. because there are more and more problems every day.

Administration in a welfare state cannot function effectively without discretion. It is a requirement for the exercise of authority. But it’s also necessary to set boundaries and standards.

Administrative discretion becomes unconstrained and unchecked. Power corrupts, and absolute power corrupts totally, as Aristotle correctly observed. Discretion fosters innovation in government. All administrative decisions must be made with discretion, but to safeguard the notion of the rule of law in administration, it is also necessary to impound decisions and control discretion, lest instances of injustice go unreported and unpunished.

Even though exercising discretion is essential to running the administration, this cannot be done in its entirety. If discretion is unconstrained, authoritarian rule and the rule of law will cease to exist in the nation. No policy can be carried out in the nation without discretion. Democracy won’t be realized if total discretion is granted.

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Endnotes:

1. State of Punjab v. Khan Chand, AIR 1974 SC 543
2. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; AIR 1973 SC 1461
3. Ram Manohar Lohia v. State of Bihar, [1966] 1 S.C.R. 709
4. Air India v Nergesh Meerza & Ors, 1981 AIR 1829

This article is authored by Karan Gautam, a student of Delhi Metropolitan Education.

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:

• Exceptions: Articles 15(3) and 15(4) allow for exceptions when providing particular provisions for women, children, and economically and socially disadvantaged groups.
• Protections: Article 15.5 guarantees that the State may only make reservations in privately funded educational institutions.
• Legal interpretations: In maintaining the spirit of Article 15 and acknowledging the intersectionality of prejudice, the Supreme Court of India has read it broadly. Over time, the understanding has changed to address different types of prejudice and advance absolute equality.
• State of Kerala v. Kesavananda Bharati^[2]: The fundamental structure concept, which ensures that the fundamental rights, including Article 15, cannot be altered in a way that eliminates the fundamental elements of the Constitution, was established by this seminal decision.
• Indra Sawhney v. Union of India^[3]: In this judgement, the Supreme Court defended reservations as a legitimate strategy for addressing social and academic backwardness. Additionally, it was made clear that reservations should be made at most 50% unless there are exceptional circumstances.
• Vishaka v. State of Rajasthan^[4]: In this case, the Supreme Court recognised sexual harassment as a type of discrimination prohibited by Article 15 and offered recommendations for how to deal with it.

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:

• A threat to minority communities’ distinctive language, script, and culture is often posed by pressure to adapt to mainstream culture.
• Language and Educational Rights: It can be difficult to guarantee adequate educational opportunities in minority languages and to defend minorities’ rights to create and run educational institutions.
• Identity Politics: At times, implementing Article 29 in a way that respects the rights of all parties might be complex due to identity politics and the competing interests of various minority groups.
• Maintaining a balance with other constitutional provisions.

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:

• Minority Status: How minorities are classified has been subject to discussion and legal scrutiny. The courts have emphasised that determining a group’s status as a minority considers factors like language, religion, culture, and numerical composition.
• Reservation rules: There has been debate over the scope of minority institutions’ ability to enact reservation rules. Although there is a dispute over whether reservation regulations should apply to minority colleges, they do have the right to admit students from their specific communities.
• Governmental Intervention: Balancing institutional autonomy and governmental regulation has been challenging.

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:

• Area of Applicability: While Article 29 mainly safeguards the rights of minority communities, Article 15 applies to all citizens and forbids discrimination on several grounds. The rights of linguistic and religious minorities to create and run educational institutions are the only subject of Article 30.
• Individual Rights vs. Collective Rights: Article 15 mainly safeguards citizens’ individual rights by prohibiting discrimination on a personal basis. The collective rights of minority communities are emphasised in Article 29, in contrast, to protecting their cultural and linguistic identity. Article 30 balances individual and social rights by allowing minority institutions educational autonomy.
• Balancing State Regulation: While Articles 29 and 30 acknowledge the State’s responsibility in regulating educational institutions to guarantee standards and quality, Article 15 imposes obligations on the State to prohibit discrimination in contrast to Article 29, Article 30 grants minority institutions greater authority.

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:

• Intersectionality: Articles 29 and 30 are pertinent in addressing intersecting forms of discrimination because discrimination based on the grounds listed in Article 15 can also affect the cultural and educational rights of minority communities.
• Affirmative action: Under Articles 15(4)^[8] and 15(5)^[9], the State can create special accommodations and reservations for Scheduled Castes/Tribes and socially and educationally disadvantaged sections. Articles 29 and 30 recognise that affirmative action is necessary by recognising minority communities’ rights to create educational institutions and maintain their cultural identity.
• Educational Inclusivity: Article 15 encourages inclusivity by prohibiting discrimination in schools, and Articles 29 and 30 go even further by guaranteeing minority communities have the right to establish their educational institutions, giving them a sense of belonging and equal educational opportunities.

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-

• Rights of Linguistic Minorities: To protect their language and culture, linguistic minorities have successfully created and run educational institutions in many Indian states, including Tamil Nadu and West Bengal. These organisations are crucial in promoting linguistic variety and offering education in regional languages.
• Gender and Minority Rights: When discussing the rights of minority women, intersectionality is essential. As an illustration, Muslim women in India have struggled for their rights to employment and education while also promoting gender equality and defending their own religious and cultural identities.
• A legal challenge was made against St. Stephen’s College’s admissions policy. St. Stephen’s College is a minority institution in Delhi. Some people claimed the college’s decision to implement a subjective interview procedure was discriminatory. In this scenario, it was essential to balance the institution’s autonomy and the values of equality and non-discrimination.
• Reservation Policies and Minority Institutions: There has been discussion surrounding the issue of reservation policies in minority educational institutions. There have been situations where reservation practises conflict with the rights of minority institutions, making it difficult to strike a balance between the constitutional principle of reservations for historically marginalised communities and their autonomy.

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. Although these rules have made a substantial contribution to protecting the rights of minority communities, difficulties with their implementation still exist. Among the principal challenges are:

• Lack of Knowledge: It’s possible that many people, especially those from marginalised areas, need to be made aware of the rights guaranteed by these articles. It is essential to increase awareness through outreach and education initiatives.
• Inadequate execution Mechanisms: To address instances of discrimination and infringement, the effective execution of these rules requires robust mechanisms, such as monitoring bodies and grievance redressal systems.
• Balancing Conflicting Rights: Careful thought and court intervention are necessary to strike a balance between the rights of minority communities and other constitutional provisions, such as reservations and affirmative action.

Recommendations for Policy-

• Strengthening Implementation methods: Creating comprehensive policies and procedures, such as awareness-raising campaigns, oversight committees, and grievance redressal systems, to improve the implementation of Articles 15, 29, and 30.
• Intersectionality and Multiple Identities: More research is required to understand how different identities intersect and what that means for how well these articles’ rights are protected.
• Comparative Analysis: Comparative studies of minority rights and educational autonomy practise in various nations might offer insightful information for policy creation.
• Balancing Conflicting Rights: To ensure equity and fairness, research is required to look at the delicate balance between the rights of minority communities and other constitutional provisions, such as reservations and affirmative action.

Conclusion

In conclusion, the Indian Constitution’s Articles 15, 29, and 30 significantly advance inclusivity, equality, cultural preservation, and autonomy in education. Collectively, these provisions support social fairness, cultural diversity, and universal access to education for all societal groups. Non-discrimination is guaranteed by Article 15, and minority communities’ rights to maintain their cultural and linguistic identities are safeguarded by Article 29. Article 30 promotes educational autonomy by granting linguistic and religious minorities the right to form and run educational institutions. Although these articles share some similarities and goals, they also reflect divergent viewpoints and cover various areas of minority rights. It is critical to address implementation issues, reinforce anti-discrimination laws, resolve ambiguities through judicial interventions, and evaluate reservation procedures to increase the effectiveness of these measures. Promoting inclusive education, bolstering cultural preservation efforts, and encouraging inter-community discussion is necessary to advance social justice and equality in a varied society. Strengthening implementation mechanisms, investigating inter-sectionality and different identities, performing comparison analyses, balancing conflicting rights, and performing impact analyses are some ideas for policy. India may make significant strides towards building a more inclusive, equitable, and culturally varied society by implementing these suggestions and undertaking additional studies.

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Endnotes:

1. Constitution of India,1950, art.15
2. AIR 1973 SC 1461
3. AIR 1993 SC 477
4. AIR 1997 SC 3011
5. Constitution of India,1950, art.29
6. https://unesdoc.unesco.org/
7. Constitution of India,1950, art. 30
8. Constitution of India,1950, art.15(4)
9. Constitution of India,1950, art.15(5)
10. (2002) 8 SCC 481
11. 1972 (1) SCC 660

This article is written by Sreejeeta Das, a law student at Symbiosis Law School, Hyderabad.

Case Number

Appeal by Special Leave from the Judgment and Order dated 22nd June 1965 of the Bombay High Court in Criminal Application No. 613 of 1965. Criminal Appeal No. 107 of 1965, decided on the 6th day of September 1965.

Equivalent Citation

1966 AIR 424 1966 SCR (1) 702.

Bench

• Hon’ble Justice K. Subba Rao.
• Hon’ble Justice K.N Wanchoo.
• Hon’ble Justice J.C Shah.
• Hon’ble Justice S.M Sikri.
• Hon’ble Justice V. Ramaswami.

Decided On

06/09/1965

Introduction

The law on the rights of detainees has been a developing one. It involves the most extreme disgrace that a nation like India doesn’t have classified laws on the rights of prisoners. There is additionally no thorough regulation to manage prisoners’ privileges and direct their lead while in jail. Notwithstanding, the legal executive of the nation has given due acknowledgement to the convicts and held their fundamental rights time once more. Without exhaustive regulation, it has figured out how to start trends and standards maintaining the different privileges of detainees that guide as well as tie every one of the courts in India.

Brief Facts

Prabhakar Pandurang Sanzgiri was kept by the Government of Maharashtra under Section 30(1)(b) of the Protection of India Rules, 1962, in the Bombay Region Jail to keep him from acting in a way biased to the safeguard of India, public security, and support of the public request. With the consent of the public authority, Sanzgiri composed a book in Marathi named “Anucha Antarangaat” (Inside the Atom). The High Court passed judgment on investigating the book’s chapter-by-chapter guide and reasoned that it managed the hypothesis of elementary particles equitably and expected to teach individuals and disperse information regarding the quantum hypothesis. The book was absolutely of logical interest and couldn’t make any bias in the protection of India, public wellbeing, or upkeep of public request The High Court of Bombay held that the request for confinement didn’t control Sangir’s social equality and freedoms and that he could carry on his exercises inside the circumstances overseeing his detainment. The State of Maharashtra pursued against the High Court’s organization, The Bombay Conditions of Detention Order, 1951, which regulates the particulars of Sanzgirt’s detainment, doesn’t permit him to compose a book and send it out of jail for distribution. Be that as it may, the Maharashtra Government didn’t depend on this standard, and it just applies to letters to and from security detainees and doesn’t control the conveying of jail books for distribution.

Issues before the Court

Whether the High Court’s choice that Sanzgiri’s book was simply of logical interest and couldn’t make any bias in the guard of India, public wellbeing, or upkeep of public request was right, and whether Sanzgini’s social equality and freedoms were controlled by the request for confinement?

Arguments

The request passed by the High Court was right, and the appeal fizzled and was excused.

The High Court decided to survey the book’s chapter-by-chapter list and inferred that it managed the hypothesis of elementary particles equitably and expected to instruct individuals and scatter information regarding the quantum hypothesis. The book was absolutely of logical interest and couldn’t make any bias against the guard of India, public wellbeing, or support of the public request. The High Court of Bombay held that the request for detainment didn’t control Sanzgari’s social equality and freedoms and that he could carry on his exercises inside the circumstances overseeing his confinement.

The Bombay States of Detainment Request, 1951, which directs the particulars of Sanzgini’s confinement, doesn’t permit him to compose a book and send it out of the jail for distribution. Nonetheless, the Maharashtra Government didn’t depend on this standard, and it just applies to letters to and from security detainees and doesn’t direct the conveying of jail books for distribution. Whether or not this standard applies to the conveying of jail books for distribution might emerge on the off chance that a suitable condition is forced limiting the freedom of an accused in this.

The decision of the Court

1. Prabhakar Pandurang Sanzgiri, who has been kept by the Public authority of Maharashtra under R. 30 (1) (b) of the Safeguard of India Rules, 1962, in the Bombay District Jail to keep him from acting in a way biased to the protection of India, public wellbeing and support of the public request, has composed, with the consent of the said Government, a book in Marathi under the title “Anucha Antarangaat” (Inside the Atom). The learned Adjudicators of the High Court who had gone through the chapter-by-chapter guide of the book offered their viewpoint on the book subsequently:
   
   “We are satisfied that the manuscript book deals with the theory of elementary particles objectively. The manuscript does not purport to be a research work, but it purports to be a book written to educate the people and disseminate knowledge regarding quantum theory”.
   
2. The book is, thusly, simply of logical interest and it couldn’t make any bias in the protection of India, public security, or upkeep of public request. In September 1964, the accused applied to the public authority of Maharashtra looking for consent to send the composition out of the prison for distribution yet the Government by its letter, dated Walk 27, 1965, dismissed the solicitation He again applied to the Administrator, Arthur Street Jail, for authorization to send the original copy out and that also was dismissed. From that point, he documented a petition under Art, 226 of the Constitution In the High Court of Maharashtra at Bombay for guiding the Province of Maharashtra to allow him to convey the composition of the book composed by him for its possible distribution. The Public authority of Maharashtra in the counter-sworn statement didn’t affirm that the distribution of the said book would be biased to the objects of the Protection of India Act, yet asserted that the Public authority was not legally necessary to allow the accused to distribute books while in detainment. The High Court of Bombay held that the social equality and freedoms of a resident were not the slightest bit checked by the request for detainment and that it was generally open to the revenue to carry on his exercises inside the circumstances overseeing his confinement. It further held that no standards were disallowing an accused from sending a book outside the prison to get it distributed. In that view, the High Court guided the Public authority to permit the composition book to be sent by the accused to his significant other for its possible distribution. The Province of Maharashtra has favoured the current allure against the expressed request of the Great Court.
   
3. The conflicts of the took in Extra Specialist General might be momentarily expressed thus: When an individual is kept he loses his opportunity; he is as of now not a liberated person and, consequently, he can practice just such honours as are given on him by the request for confinement. The Bombay States of Detainment Request, 1951, which manages the details of the primary respondent’s confinement, doesn’t give him any honour or right to compose a book and send it out of the jail for distribution. On the side of his conflict, he depends upon the perceptions of Des, 1, as he then was, in A. K. Gopalan vs State of Madras, wherein the learned Appointed authority has communicated the view, with regards to principal privileges, that assuming a resident loses the opportunity of his individual because of a legal detainment, he can’t guarantee the privileges under Craftsmanship. 19 of the Constitution as the evenings revered in the said article are just the characteristics of a liberated person.
   
4.  Mr. Garg learned counsel for the accused, raised before us the accompanying two focuses: (1) a limitation of the nature forced by the Public authority on the accused must be made by a request given by the suitable Government under Cls. (f) and (h) of sub(1) of R. 30 of the Guard of India Rules, 1962, hereinafter called the Remnants, and that too in severe consistency with s. 44 of the Guard of India Act, 1962, hereinafter called the Demonstration, and that as the reprimanded limitation was neither made by such a request nor did it consent to S. 44 of the Demonstration, it was an unlawful limitation on his freedom; and sub(2) neither the confinement request nor the states of detainment which administered the primary respondent’s confinement empowered the Public authority to keep the expressed respondent from sending his original copybook out of the jail for distribution, and consequently, the request for the Public authority dismissing the said respondent’s solicitation in such manner was unlawful.

Conclusion

Prisoners don’t stop being people when put in bars. The Supreme Court and numerous different courts in India have repeated this situation in a few cases with the goal that detainees don’t turn into a casualty themselves. Furthermore, are furnished with a legitimate rehabilitative climate to help them improve and turn out to be better creatures. It is officeholder upon the Focal and State legislatures to not just furnish the detainees with empathetic circumstances professionally yet additionally teach them about their privileges, so it isn’t manhandled by the strong inside the prison.

One might say that the legal executive of the nation plays a vital impact in defending the privileges of detainees at whatever point the regulative and leader have failed. It has gone about as the deliverer of the convicts and maintained their essential freedoms endlessly time once more. It has completely practised its abilities through legal activism and has more than once concocted new cures and instruments to safeguard the common freedoms to life and individual freedom. Be that as it may, much actually should be finished. In such a manner, the wide dissemination of basic liberties accessible to prisoners, immense exposure of prisoners’ rights in the media, and corner-to-corner observation in prison could be a portion of the keys to maintaining the freedoms of prisoners and guaranteeing their place of refuge in the prison.

This case analysis is done by Pranita Dhara, a student of Lloyd Law College.

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Case Number

Civil Appeal No. 230 of 1977.

Equivalent Citation

1957 AIR 540

Bench

The Supreme Court of India

Decided On

1st February 1957

Relevant Acts / Sections

The sections that are relevant in the case of Garikapatti Veeraya v N. Subbiah Choudhury are:

• Article 133 of the Constitution of India¹, deals with the jurisdiction of the Supreme Court and the appeals that can be filed before it.
• Order XLV of the Supreme Court Rules, 1966, which provides the procedure for filing Special Leave Petitions before the Supreme Court.
• Section 109 of the Code of Civil Procedure, 1908², allows for appeals to the Supreme Court in civil cases if certain conditions are fulfilled.
• Section 100 of the Code of Civil Procedure, 1908³, lays down the grounds on which a second appeal can be filed before a High Court.
• Section 2(2) of the Code of Civil Procedure, 1908⁴, which defines a “decree” is the official statement of a judgment that definitively settles the rights of the parties concerning one or more of the contested issues.
• According to Section 2(14) of the Code of Civil Procedure, 1908⁵, a “judgment” is defined as the pronouncement made by a judge based on a decree or order.

Brief Facts and Procedural History

OVERVIEW

This legal case concerns an application for special leave to appeal, which arises from a previous lawsuit that was filed on April 22, 1949, and had a value of Rs. 11,400. On February 10, 1955, the high court overruled the decision of the trial court, which had earlier dismissed the suit. However, when the applicant sought leave to appeal to the Supreme Court, the high court refused the application, arguing that the value of the lawsuit did not meet the minimum requirement of Rs. 20,000.

The applicant contended that they had a vested right of appeal to the Federal Court, which was the highest court in the land at the time the suit was instituted, and that this right of appeal had been transferred to the Supreme Court under Article 135 of the Constitution⁶. The applicant argued that they were therefore entitled to appeal to the Supreme Court as a matter of right.

The court held, with Chief Justice Das and Justices Bhagwati, B. P. Sinha, and S. K. Das concurring and Justice Venkatarama Ayyar dissenting, that the applicant’s contention was well-founded. 

The court held that the right to appeal was a significant right that could be utilized only in situations where the verdict was unfavourable. However, it stated that this right was subject to the laws applicable at the commencement of the legal action and included all subsequent appeals from one court to another, effectively forming a single proceeding. The court also held that such a right could be taken away only by a subsequent enactment either expressly or by necessary intendment.

The court cited the case of Colonial Sugar Refining Company Ltd. v. Irving (1905) A.C. 369⁷ and held that the vested right of appeal was a matter contemplated by Article 135 of the Constitution. The court ruled that Article 135 could not be limited to cases where the right of appeal had actually arisen in a concrete form and that the appeal was entertainable by the Supreme Court.

The court also held that Article 133 of the Constitution had no application to such cases. It was not intended to have a retrospective operation so as to take away this vested right, nor did it do so either in express terms or by necessary intendment. To summarize, the court ruled that the applicant had an inherent right to appeal to the Federal Court, and under Article 135 of the Constitution, he had the right to appeal to the Supreme Court. The court also held that Article 133 of the Constitution did not apply to such cases. Furthermore, the appellant’s vested right of appeal acquired under the old law fell under the appellate jurisdiction of the Supreme Court.

Appellant’s Argument: Acquisition of Vested Right to Appeal to the Federal Court

The appellant in this case argued that he had a vested right to appeal to the Federal Court from the time he filed the suit on April 22, 1949. He contended that the Indian Independence Act of 1947 expanded the jurisdiction of the Federal Court to allow it to hear appeals that previously went to the Privy Council. 

As per the Act, starting from the appointed day, i.e., February 1, 1948, any decision falling under the purview of the Act could be appealed to the Federal Court. The appellant argued that he was entitled to appeal to the Supreme Court as of right under Article 135 of the Constitution, and Article 133 of the Constitution did not apply to cases like his.

Respondent’s Argument: Inapplicability of Article 135 and Refusal of Special Leave

The respondent argued that the appellant’s reliance on Article 135 of the Constitution was misplaced, as Article 133 was the relevant provision. They claimed that there was no vested right to appeal to the Federal Court immediately before the Constitution came into effect, and therefore, Article 133 applied. The respondent contended that since the jurisdiction to hear appeals to the Federal Court ceased to exist, the appellant had no right to appeal to the Supreme Court. Consequently, they maintained that the application for special leave to appeal should be dismissed.

Issues before the Court

• Should the petition for special leave to appeal under Article 136 of the Constitution⁸ be granted or not, in relation to the judgment and decree dated March 4, 1955, of the Andhra High Court?

In this particular case, the main issue revolved around the petitioner’s entitlement to appeal to the Supreme Court. The petitioner claimed that he had a vested right to appeal to the Federal Court, which was replaced by the Supreme Court. This right, according to the petitioner, was acquired at the time of the suit’s institution, which occurred before the Constitution came into force. In contrast, the respondent argued that the case fell under the jurisdiction of Article 133 of the Constitution, and there was no vested right to appeal to the Federal Court. As per the respondent’s argument, the petitioner had no right to appeal since the Constitution had extinguished this right.

Therefore, the court was required to determine whether the petitioner had a valid claim to appeal under the previous law and whether Article 135 or Article 133 of the Constitution was applicable to the case. Ultimately, the correct interpretation of these articles was key to the final decision, and whether the petitioner’s right to appeal had been preserved despite the constitutional changes.

Decision of the Court

After considering the opinions of several courts, the final decision was reached in this case. The majority of the courts agreed that the appellant should be granted Special Leave to Appeal to the Court on usual terms. In its judgment, the Court clarified the interpretation of Article 133 and stated that it applies to all appeals against judgments, decrees, and final orders of the High Courts in India, regardless of whether the proceedings were initiated before or after the Constitution’s commencement in civil proceedings.

The Court’s decision provides a clear and consistent legal framework for all appeals against the High Courts’ judgments. This interpretation ensures that all appeals are treated uniformly, irrespective of the time the proceedings were instituted. It also provides clarity to litigants seeking to appeal a decision, as they can now have a clear understanding of the legal provisions applicable to their case.

The Court’s ruling is an essential milestone in Indian legal history, as it resolves the ambiguity surrounding the interpretation of Article 133 and provides much-needed clarity on the scope of appeals against the High Court’s decisions. This decision will have far-reaching implications for future cases, as it provides a standard framework for interpreting and applying Article 133 in all cases involving appeals against the High Court’s decisions.

Conclusion

The Supreme Court of India’s ruling in the case of Garikapatti Veeraya v N. Subbiah Choudhury, handed down in 1957, is a significant milestone in the legal history of India. This ruling provided valuable insights into the interpretation of Article 133 of the Indian Constitution, which applies to all appeals against judgments, decrees, and final orders of the High Courts in India, irrespective of when the proceedings were initiated in civil cases. As a result, this case established a uniform and unambiguous legal framework, ensuring fair and equitable treatment for all litigants.

The Garikapatti Veeraya case underscores the importance of having a clear and consistent legal system that provides clarity and consistency in the interpretation and application of the law. This landmark decision has far-reaching implications for future cases, emphasizing the need for uniformity and consistency in legal rulings. The Court’s decision, in this case, serves as a guiding light for Indian courts and legal practitioners, helping to establish a clear and uniform legal framework for the entire nation. Overall, the Garikapatti Veeraya case is a crucial milestone in India’s legal history, representing a significant step forward in ensuring the fair and equitable treatment of all litigants.

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Endnotes:

1. INDIA CONST. art. 133.
2. Code of Civil Procedure, 1908, § 109.
3. Code of Civil Procedure, 1908, § 100.
4. Code of Civil Procedure, 1908, § 2(2).
5. Code of Civil Procedure, 1908, § 2(14).
6. INDIA CONST. art 135.
7. Colonial Sugar Refining Co. v. Irving, (1905) A.C. 369.
8. INDIA CONST. art. 136.

This case is analysed by Sohini Chakraborty, a first-year law student at RGNUL Patiala.

-Report by Nehha Mishra

In the case of DELMA LUBNA COELHO VS EDMOND CLINT FERNANDES, the petitioner filed the petition seeking the transfer of the pending case before the family judge at Mangaluru, Karnataka to the family court at Bandra, Mumbai, Maharashtra.

FACTS

The couple met on Facebook in December 2019 and married on December 5, 2020, according to Christian rites and customs at Our Lady of Miracles Church in Mangaluru. Following the marriage, the petitioner lived with the respondent in her matrimonial house in Mangaluru, where she was abused, insulted, and humiliated by the respondent and his family members.

She was accused of everything, and foul language was used against her. Under the guise of providing her with a 10-­15­day break, the respondent booked a one-way ticket for the petitioner and despatched her to Mumbai on January 15, 2021.

After COVID­19 Pandemic limitations were lifted on July 5, 2021, the petitioner returned to Mangaluru. The defendant and his family members, however, refused her admission into her matrimonial house. She was completely distraught. She went to the Pandeshwar Police Station in Mangaluru and filed a complaint. 

The Superintendent of Police intervened and summoned the respondent to the Police Station. The respondent replied that he has already served a divorce notice and that his divorce petition is being prepared.  Despite the petitioner’s repeated appeals, the respondent did not change his behaviour. On 06.08.2021, she responded to the legal notice, claiming that she is ready and eager to come to her matrimonial home and want to live a happily married life. On October 10, 2021, she received a summons from the Court, along with a copy of the divorce petition filed in the Mangaluru Family Court. 

PETITIONER’S CONTENTION

The petitioner’s learned counsel stated that she lives in Mumbai with her elderly parents. No one at her home can accompany her from Mumbai to Mangaluru to defend the petition, which is over 1,000 km away. She doesn’t even know the Kannada language.  The respondent, on the other hand, will experience no difficulties if the petition is relocated to Mumbai (Maharashtra).

The petitioner claims that if given the chance, she would try to rework the marriage. The petitioner was obliged to obtain a job with a bank because the respondent failed to financially support her. If she routinely travels to Mangaluru to attend the proceedings, she risks losing her job as a newbie. She will be unable to bear the additional expenditure.

The petitioner has filed a petition for restitution of marital rights in response to the respondent’s Divorce Petition. 

RESPONDENT’S CONTENTION

On the other hand, experienced counsel for the respondent contended that, even though the parties met on social media, one year before their marriage, she had visited Mangaluru after the COVID19 Pandemic/restrictions were removed and they met often.  

She was well aware of the respondent’s familial background as well as the condition of his family. The petitioner’s behaviour was not the same after the marriage as it was before the marriage.

The petitioner, a permanent resident of Canada, was accustomed to such a way of life. The marriage was just intended to ruin the respondent’s life, even though she first claimed to love Indian culture and traditions. Though it is claimed that the respondent forced the petitioner to leave the matrimonial home, the petitioner chose to leave on her own.   She applied for a job with ICICI Bank immediately after arriving in Mumbai and resigned from the organizationon February 19, 2021, where she was working with the respondent.

The marriage was irretrievably broken since the parties could not reconcile despite several mediations. Without the parties’ consent, this Court may issue divorce under Article 142 of the Indian Constitution.

JUDGEMENT

In marriage disputes, several Transfer Petitions are filed, typically by wives requesting transfer of the matrimonial procedures launched by the husband. Normally, the court accepts the prayer given while being lenient towards ladies.

Given the status of the parties and the fact that it is a petition filed by the wife seeking transfer of the husband’s case from Mangaluru, Karnataka to Mumbai, Maharashtra, we believe no case is made out for transfer of the petition from Mangaluru, Karnataka to Mumbai, Maharashtra.  The wife is a Canadian permanent resident. She must travel abroad frequently.

She can travel to Mangaluru to attend the case hearing and can also request an exemption from the appearance when necessary. Despite this, we do not believe that there is a basis for ordering the respondent to reimburse the petitioner’s travel expenses to Mangaluru based on the financial circumstances of the parties as they currently stand. However, if she wishes to seek compensation for expenses, she may do so by applying with the appropriate court, which will be considered on its own merits. 

We do not believe this is a suitable case for exercising power under Article 142 of the Indian Constitution, despite the parties’ good faith. The judgments relied on by the respondent’s learned counsel are distinguishable, as in those cases, there was adequate evidence on file, and the cause on which the marriage was dissolved in the exercise of power under Article 142 of the Indian Constitution was an irretrievable breakdown of marriage, which is not a ground for dissolution of marriage under the Hindu Marriage Act, 1955.

We do not believe the current petition has substance for the reasons stated above.  As a result, the same is dismissed.

READ FULL JUDGEMENT: https://bit.ly/3Ak0sR6

S.no	Contents
1.	Introduction
2.	History dating to the origin of Islamic Law in Hindustan
3.	Sources of The Islamic Laws Propagated All over the Nation
4.	Features of The Indian Islamic Laws – The Unity in Diversity
5.	Conclusion

Introduction

Secularism is embedded in the roots of the Hindustani Soil since Ancient History. Whereas Sanatan Dharma is believed to trace its origin in the Indian Nation, Islam was prevalent in the country by the late 8th century after the invasion of Mohd Bin Qasim.

With building Muslim invasions and the Emerging Delhi Sultanate, Islam became an integral part of Indian Society. The evolution of societies took place with Khalijis, Tughlaqs, Lodhis and Mughals ruling India for over 700 years. The ethnic culture shifts and dictatorial rule of the Muslim Invaders were very prevalent reasons for the spread of Islam in the Country. Where History saw rulers like Akbar and Iltutmish stand up for secularism and give equal respect to all religions, hundreds plundered the temples and disrespected the religion.

Hindus and Muslims, the two majorly populated religions of India have been at continuous trifle and violent upsurge throughout the years. With the British ruling India for over 200 years and implementing their ‘Divide and Rule Policy’, it never got better for the people of both communities. At some point, it was the lawmakers and the cognitive Individuals from the Indian democracy who felt the need to bring in some special laws for the Muslims, to respect their religious practices and avoid the futuristic feuds.

Muslim Personal Law (Shariat) Application Act of 1937^[1], is just not another set of laws that enforce legality and order in our system, but also an identity that Muslims have owned for the past 8 decades. The detailed analysis stated below aims to bring out the various sources which have had a major role in shaping Islamic Laws. The sub-topics also feature the detailed History of Islamic Laws in India and their current situation in the Constitution.

History dating to the origin of Islamic Law in Hindustan

Islamic law has a long and rich history in India. The presence of Islam in India can be traced back to the 7th century when Arab traders started visiting the Indian subcontinent. Over time, Islam spread in India, and Muslim rulers established their kingdoms, which had a significant impact on the development of Islamic law in the country. You would have read it in the books of history or seen it in the movies about the laws like jazia, etc. Well, these were the foundations of Islamic Law.

• Pre-Mughal Period

Before the arrival of the Mughals, Islamic law in India was largely based on the teachings of the Quran and the Sunnah. Islamic scholars in India studied and interpreted the Quranic principles and developed a legal system that was specific to India. This system was known as Fiqh, and it was based on the Hanafi school of Islamic jurisprudence. During this period, the Indian subcontinent was ruled by various Muslim dynasties, including the Delhi Sultanate and the Bahmani Sultanate. These dynasties had their legal systems, which were based on Islamic principles.

• Mughal Period

The Mughal period in India (1526-1858) was significant in the history of Islamic law in India. The Mughal emperors were patrons of Islamic scholarship, and they encouraged the development of Islamic law in the country.

During this period, Islamic scholars in India studied and interpreted the Quranic principles and developed a legal system that was specific to India. This system was known as Fatawa Alamgiri, and it was based on the Hanafi school of Islamic jurisprudence. Fatawa Alamgiri was a compilation of legal opinions on various aspects of Islamic law, including marriage, divorce, inheritance, and succession.

• British Period

The arrival of the British in India in the 18th century had a significant impact on Islamic law in the country. The British colonial government introduced secular laws that applied to all citizens, regardless of their religion. However, Muslims in India continued to follow their laws, which were based on Islamic principles.

The British government enacted the Muslim Personal Law (Shariat) Application Act in 1937, which provided for the application of Islamic law to Muslims in India. The act recognized the rights of Muslim women to seek divorce and inherit property under certain conditions.

• Post-Independence Period:

After India gained independence in 1947, the Indian government continued to recognize the importance of Islamic law in the lives of Muslims in the country. The Muslim Personal Law (Shariat) Application Act continues to be in force, and Personal Laws continue to govern personal matters for Muslims in India.

In conclusion, the history of Indian Islamic laws is a long and rich one, dating back to the pre-Mughal period. Islamic law in India has been shaped by Islamic scholars over several centuries and is based on the teachings of the Quran and the Sunnah. The Mughal period was significant in the development of Islamic law in India, and the British period had a significant impact on the recognition of Islamic law in the country

Sources of The Islamic Laws Propagated All over the Nation

Islam is a comprehensive religion that guides its followers in every aspect of their lives. The sources of Islamic law, also known as Sharia, are the primary sources from which Muslims derive their religious guidance. The sources of these laws are dated back to the early 7^th Century and are credible according to the followers of Islam. The apostles of this Religion have carried through these sources and a lot of them have been incarnated in the Laws that represent them. These sources include the Quran, the Sunnah, Ijma, and Qiyas. 

1. The Quran

The Quran is the primary and most important source of Islamic law. It is the holy book of Muslims that contains the teachings and guidance of Allah (SWT). The Quran is the word of God revealed to Prophet Muhammad (PBUH) through the angel Gabriel. It consists of 114 chapters or Surahs, each containing verses or Ayahs that provide guidance and direction to Muslims. The Quran covers a wide range of topics, including theology, ethics, morality, social norms, and legal matters. Muslims believe that the Quran is the final and complete revelation from God to mankind, and it is free from any error or contradiction. Quranic verses that deal with legal matters are known as Ahkam, and they provide the basis for Islamic jurisprudence.

2. The Sunnah

The Sunnah refers to the sayings, actions, and approvals of Prophet Muhammad (PBUH). It is the second most important source of Islamic law. The Sunnah is recorded in the Hadith, which is a collection of narrations about the life and teachings of Prophet Muhammad (PBUH). The Hadith contains the words of the Prophet (PBUH) as well as his actions and behaviour. Muslims consider the Sunnah to be a practical application of the Quranic teachings, and it provides a detailed explanation of the Quranic injunctions. The Sunnah is considered the primary source of Islamic law after the Quran.

3. Ijma

Ijma is the consensus of Islamic scholars on a particular issue. It refers to the collective agreement of the Muslim community on a particular matter. Ijma is considered the third most important source of Islamic law. It is based on the principle that the collective wisdom of the Muslim community is superior to that of an individual. Ijma is based on the Hadith that states: “My community will never agree on an error.” Therefore, when the Muslim community agrees on a particular issue, it becomes binding on all Muslims.

4. Qiyas

Qiyas refers to analogical reasoning in Islamic jurisprudence. It is the process of deducing the ruling on a particular matter based on a similar ruling in another matter. Qiyas is considered the fourth most important source of Islamic law. It is used when the Quran and Sunnah do not provide a direct ruling on a particular issue. Qiyas is based on the Hadith that states: “The likeness of things is the same as the likeness of what resembles it.“

The sources of Islamic law provide guidance and direction to Muslims in every aspect of their lives. The Quran and Sunnah are the primary sources of Islamic law, while Ijma and Qiyas are considered secondary sources. Islamic scholars use these sources to derive rulings on various issues, and they must ensure that these rulings are consistent with the teachings of Islam.

Features of The Indian Islamic Laws – The Unity in Diversity

Islamic law, also known as Sharia, is an integral part of the Indian legal system. Muslims in India are subject to Sharia laws, which govern various aspects of their lives. These laws have been shaped by Islamic scholars over several centuries and are based on the teachings of the Quran and the Sunnah. In this article, we will discuss the features of Indian Islamic laws in detail.

• Personal Laws

Islamic laws in India govern personal matters such as marriage, divorce, inheritance, and succession. These laws are known as Personal Laws and apply only to Muslims. Personal laws are based on the Quran and the Sunnah and are enforced by Sharia courts. Muslims in India have the right to opt for Personal Laws over the secular laws of the country, but they cannot opt for both. Section 2 and Section 4 of The Muslim Personal Law (Sharia) Application Act, 1937 deal with the personal Laws of Islamic Natives.

Article 44 of the Indian Constitution^[2] provides for a uniform civil code for all citizens, regardless of their religion. However, the Indian government has not yet implemented a uniform civil code, and Personal Laws continue to govern personal matters for Muslims.

• Marriage

Marriage is an important aspect of Islamic law, and it is considered a sacred bond between a man and a woman. Islamic law recognizes marriage as a contract between the two parties, and it is subject to certain conditions. The Quran states that marriage should be based on mutual love and respect, and it should be a means of finding peace and tranquillity in life. The age of marriage for girls is fixed at 18 years, and for boys, it is 21 years. Polygamy is allowed in Islam but is subject to certain conditions.

Section 3 of the Muslim Marriages Registration Act 1981^[3], governs marriage and divorce for Muslims in India. The act provides for the registration of marriages and divorces and recognizes the right of Muslim women to seek divorce under certain conditions.

• Divorce 

Divorce is allowed in Islam, but it is considered a last resort. Islamic law recognizes several types of divorce, including Talaq, Khula, and Mubarak. Talaq is the most common type of divorce, and it is initiated by the husband. The Quran prescribes certain conditions for the validity of Talaq, and it also provides for the reconciliation of the parties before the divorce becomes final.

Dissolution of Muslim Marriages Act, 1939^[4], provides for the regulation of Talaq, Khula, and Mubarak. The act also recognizes the right of Muslim women to seek divorce under certain conditions, such as cruelty, desertion, and impotence.

• Inheritance

Inheritance is governed by Islamic law, and it is based on the Quranic principles of equity and justice. Islamic law recognizes the rights of all heirs, and it provides for the distribution of property according to a fixed formula. The Quranic formula for the distribution of property is based on the concept of shares, and it ensures that each heir receives a fair and just share of the property.

The provisions of the Indian Succession Act 1925^[5] provide for the regulation of inheritance for Muslims in India. The act recognizes the rights of all heirs and provides for the distribution of property according to the Quranic formula.

In conclusion, Islamic law plays an important role in the lives of Muslims in India. Personal Laws govern personal matters such as marriage, divorce, inheritance, and succession for Muslims. These laws are based on the Quranic principles of equity and justice and are enforced by Sharia courts. 

The Muslim Personal Law (Sharia) Application Act, 1937, provides for the regulation of these matters and recognizes the rights of Muslim women to seek divorce and inherit property under certain conditions.

Befitting Conclusion to the Topic

Islamic Laws have been an integral part of the Indian Constitution since its very inception. The books of history have always shown us, the hostility that has prevailed between the people of the two prominent communities in India and how it has affected the Nation. The Kolkata riots of the 1930s and 1946, The Partition Riots of 1947, The Gujarat Riots of 2004 and many more have routed the Nation even after the existence of special laws for both communities.
This can signify that there has been some ambiguity on the side of the public to comprehend these laws. After being drafted by the British, The Muslim Personal Law (Shariat) Application Act, of 1937 has been amended time after time to bring out the necessary changes which were required. The abrogation and criminalisation of ‘Triple Talaq’ have been one of those key Legal Amendments that have proved that the Legal authorities stand for Humanity and not for the upliftment of cruel practices of any religion. Despite challenges and controversies, Islamic law continues to be an important part of the legal system in India, and it continues to evolve and adapt to changing social and cultural contexts. Overall, the sources and features of Islamic law in India reflect a complex interplay of history, tradition, and modernity.

In conclusion, this article sheds light on the diverse and complex sources and features of Islamic law in India. A comprehensive overview of the primary sources of Islamic law, their interpretation, and the role of Islamic law in the Indian legal system has been provided. The interplay of tradition and modernity in the evolution of Islamic law in India, which continues to be a significant aspect of the country’s legal system, has been analysed by this Article. All we can hope for is, a legal system that could keep a check on the disparities between the two religious communities and bring out the Unity and Integration, the world has been talking about for centuries now.

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Endnotes:

1. Muslim Personal Law (Shariat) Application Act, 1937, Act No. 26 of 1937 (India)
2. Constitution of India, art. 44
3. Muslim Marriages Registration Act, 1981, § 3 (India)
4. Dissolution of Muslim Marriages Act, 1939, Act No. VIII of 1939 (India)
5. Indian Succession Act, 1925

This article is authored by Rishaan Gupta, a 1^st year Student at National Law University, Delhi.

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 no difference between the rich and poor, the high and low.

The rule of law is laid out in Britain, the U.S.A. also, and India. The idea of Law and order implies that all individuals are equivalent under the steady gaze of regulation. Regulation makes no separation between rich and poor, the high the low. All individuals ought to be under similar regulations and limited by similar sorts of commitments. Nobody ought to be above regulation. No honours will be given to an individual having a place with a specific class nor will there be any arrangement for insusceptibility. No individual will be rebuffed or saved in care for quite a while until and except if his wrongdoing is demonstrated.

• Constitution

Just the constitution limits the power of the state. It sets out specific obstructions and these hindrances are not to be crossed by the state while utilizing its power. For the most part, the constitution is acknowledged as the incomparable law of the nation, and if any organ of the public authority disregards any arrangement of the const., that act is pronounced unlawful by the courts. In brief, every organ of the public authority. Will undoubtedly work inside the structure of the constitution and this way the constitution safeguards the liberties of individuals.

• Independent Judiciary

There should be a free and fair judiciary for the assurance and conservation and individual liberty. The judiciary should be free of chief and authoritative control.

The autonomous, strong, and fair-minded legal executive is the greatest defender of freedom. Thus, arrangements ought to be made to keep the legal executive free. Assuming that the Legal executive is subordinate to the Leader or on the other hand on the off chance that it isn’t liberated from the impact of the Chief, it can not grant equity nor can it safeguard the major freedoms of man. In socialist nations or in nations that have Fascism, basic privileges are given to individuals, yet the Legal executive isn’t liberated from the impact of the Chief. In such nations, the safeguards and security of central privileges, constitution, and freedom aren’t exactly imaginable and freedom becomes simply a joke. Here, just keen and fair-minded people ought to be delegated as judges. They ought to be paid significant compensation and adequate annuity after retirement. Their residency ought to be long.

Safeguards the protected liberty of Indian citizens

• Right to life and individual freedom

 Article 21[2] gives that no individual will be denied his life or individual freedom besides as per technique laid out by regulation.

• Habeas Corpus

Habeas Corpus is a writ that is accustomed to bringing an individual who has been kept or detained under the watchful eye of a court. This writ is utilized to safeguard the liberty of a person.

• Legal Review

 Legal Survey is the force of the legal executive to survey the activities of the leader and authoritative parts of government. This power is utilized to guarantee that the public authority doesn’t abuse the central privileges of residents.

• Partition of power

Division of Abilities is a successful protection for individual freedom. The blend of a chief, administrative or legal powers in a similar individual or set of people could bring about the maltreatment of abilities and loss of individual freedom.

• Right to constitutional remedies

The Constitution accommodates different cures, for example, writs, orders, and headings that can be utilized by residents to authorize their central freedoms.

• Freedom of speech and expression

The right to speak freely of discourse and articulation is a principal right ensured by the Constitution of India. It permits residents to offer their viewpoints unreservedly unafraid of oversight or discipline.

• Right to information

 The Right to Information Act, of 2005[3] accommodates admittance to data held by open specialists. This right permits residents to consider public specialists responsible and guarantees straightforwardness in administration.

Right in Safeguard of Liberty

Article 5[4] says that safeguards are for anyone who is being arrested or detained. It is for all the people who suffer and those who are detained those people are sent to judge. Detention can be challenged if it is lawful. Victims get compensation for unlawful detention.

Some Restriction

A.K. Gopalan v. State of Madras[5] it was contended that the ‘procedure established by law’ implied equivalent to ‘due process of law’. Both the terms are equivalent and similar security is being given in both nations with a distinction that ‘due process of law’ covers considerable and procedural regulation yet ‘methodology laid out by regulation’ covers just procedural law.

In Maneka Gandhi v. Union of India[6], Chandrachud J. said that the system must be simple, fair and sensible, not whimsical, abusive, or erratic and Krishna Iyer J. said that the ‘law’ signifies sensible regulation and no established piece.

Landmark Judgment

This idea originally came up on account of A. K. Gopalan v. State of Madras[7]. In this situation, the solicitor was confined under Preventive Detainment Act. He tested this in the court that it be violative of his right to opportunity of development, which is the quintessence of individual freedom under Article 21[8]. The Supreme Court gave the significance of individual freedom in an extremely tight sense. It said that individual freedom incorporates just the actual opportunity of the body like independence from capture or unjust repression. It likewise said that the term ‘law’ is the state-made regulation as it were. The High Court held that Article 19[9] has no association and relevance to Article 21.

On account of Satwant Singh Sahney v. Identification Officer[10], the option to travel abroad is remembered as ‘personal liberty’ and no individual can be denied his entitlement to go besides according to the technique laid out by regulation. Refusal to give the identification of the individual with practically no reasons allotted for it adds up to an unapproved hardship of individual freedom as given under Article 21.

There was another instance of the State of Maharashtra v. Prabhakar Pandurang[11]. In this situation, it was seen that the detainee does not stop being an individual not having key privileges. The right to compose a book and get it distributed by a detenu is his major right and its forswearing without the power of regulation disregarded Article 21.

Conclusion

Every one of the previously mentioned focuses addresses the manners by which we can defend a singular’s liberty. These are just conceivable when every single individual no matter what their situation in the general public no matter what their positions no matter what component can make discrimination attempts to guarantee that freedom as a guideline or element pervasive in the general public isn’t compromised. Freedom is an essential element that guarantees that the Majority rule government in space wins. On the off chance that it falls flat, that Democracy is no Democracy and acts as a joke to freedom all in all.

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Endnotes:

1. https://www.gov.uk/government/publications/liberty-protection-safeguards-factsheets/liberty-protection-safeguards-what-they-are
2. Constitution of India, Article 21
3. Right to Information Act, of 2005, https://rti.gov.in/rti-act.pdf
4. Constitution of India, Article 5
5. A.K. Gopalan v. State of Madras, AIR 1950 SC 27
6. Maneka Gandhi v. Union of India, AIR 1978 SC 597
7. ibid 5
8. ibid 2
9. Constitution of India, Article 19
10. Satwant Singh Sawhney vs D. Ramarathnam, Assistant Passport Officer, 1967 AIR 1836, 1967 SCR (2) 525
11. State of Maharashtra v. Prabhakar Pandurang, 1966 AIR 424, 1966 SCR (1) 702

This article is authored by Pranita Dhara, a student of Lloyd Law College.

S.no	Contents
1.	Introduction
2.	Types of Hazardous Wastes
3.	Legislator Framework in India
4.	Regulatory Framework in India
5.	Ineffectiveness of Law
6.	Case Laws of Hazardous Wastes
7.	Conclusion

Abstract

This article aims to present an overview of hazardous waste and types of hazardous waste. Further it explain the legislative and regulatory framework in India and after that ineffectiveness of the Law.

Introduction

Human beings always create waste materials which are produced by daily to daily life activities. Activities like washing utensils, washing the floor and sewage water.

Hazardous waste means “danger”. Hazardous waste is very dangerous for our life. Hazardous waste includes so many wastes like harmful medicines, harmful chemicals and harmful industrial waste. Hazardous waste affects our lives in so many ways our skin gets irritated, our eyes become red, breathing rate problems and hair problems create. Pesticides are also included in hazardous waste.

Hazardous waste is very toxic for us and hazardous waste creates so many diseases. Hazardous waste is created by pesticides, pharmaceuticals, and industrial and commercial areas. Hazardous waste means any material that is potentially catastrophic to the environment or human health. This type of waste includes chemicals, toxins, flammable materials, and radioactive substances. Hazardous waste can come from a variety of sources, including industrial processes, medical facilities, and households.

The proper handling and disposal of hazardous waste are crucial to prevent harm to humans and the environment. When not handled properly, hazardous waste can contaminate water, soil, and air, leading to serious health problems, including cancer, birth defects, and neurological disorders.

To reduce the amount of hazardous waste generated, it is important to implement practices such as reducing the use of hazardous materials, reusing products when possible, and recycling. In addition, it is essential to properly label and store hazardous waste and to dispose of it in a safe and environmentally friendly manner.

Types of Hazardous Wastes

There are four classifications of hazardous wastes are as follows –
F-list waste
K-list waste
P-list waste
U-list waste

F-LIST WASTE –
It is a classification of hazardous waste. It doesn’t come from a specific industry. It comes from a mix industry. We didn’t identify the industry of F-waste.

F-list waste includes –
Dioxin-bearing wastes
Wood-preserving wastes
Chlorinated aliphatic hydrocarbons
Spent solvent wastes

K-LIST WASTE –
After the F-list, we read about the k-list. K-list waste is more specific than F-list. We identify the industry of k-list waste. The k-list waste came from industrial waste.

K-list waste includes –
Organic chemicals manufacturing
Primary aluminium production
Ink formulation
Petroleum refining

P-LIST WASTE –
After the K-list waste, we read about P-list. P-list waste is highly toxic. P-list wastes are unused and they are a part of commercial chemical products. Pesticides are part of the P-list.

U-LIST WASTE –
After the U-list waste, we read about U-list, U-list waste is less toxic as compared to the list. We use U-list waste properly so they are not hazardous for us but we do not use them properly so they are hazardous for us.

Legislator Framework in India

Human beings’ duty is to protect nature for natural resources for the future. In Constitution, Part IV-A ( Article 51-A fundamental duties ) says that every human being duty to protect nature against hazardous waste and any other kind of danger. Human beings use natural resources for the future so they have a responsibility to take care the nature.
Further, Part IV (Article 48A directive principles of State Policies) says that the state also has a duty to protect nature and take proper actions to protect nature.

State and human beings have equal responsibilities to protect nature. A well-developed framework came after the UN Conference on the Human Environment (Stockholm,1972). After the Stockholm Conference, the National Council for Environmental Policy and Planning was established in 1972 inside the Department of Science and Technology to introduce a regulatory body to look after environment-related issues. Later, This Council developed into an entire Ministry of Environment and Forests and Climate Change (MoEF & CL).

The United States Environmental Protection Agency (EPA) regulates hazardous waste disposal through the Resource Conservation and Recovery Act (RCRA). This law establishes levels for the management of hazardous waste, consisting of essentials for its transportation, generation, storage, treatment, and disposal.

Businesses and organizations that generate hazardous waste must comply with RCRA regulations by obtaining permits and implementing proper waste management practices. Failure to obey these rules can result in fines and other penalties.

Regulatory Framework in India

The regulatory framework for hazardous waste varies by country, but in general, it involves a combination of national and international laws and regulations. Here are some key components of the regulatory framework for hazardous waste:

• National laws and regulations: Many countries have national laws and regulations that govern the generation, handling, transport, treatment, and disposal of hazardous waste. For example, in the United States, the Resource Conservation and Recovery Act (RCRA) sets standards for the management of hazardous waste, while in the European Union, the Waste Framework Directive provides a framework for the management of waste, including hazardous waste.
• International conventions and agreements: Several international conventions and agreements have been established to address hazardous waste on a global scale. These consist of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, which monitors the current of hazardous waste between countries, and the Stockholm Convention on Persistent Organic Pollutants, which seeks to eliminate or restrict the use of persistent organic pollutants (POPs).
• Permitting and reporting requirements: Many countries require permits for facilities that generate, handle, treat, or dispose of hazardous waste. These permits may require facilities to meet certain standards for waste management and may include reporting requirements for the amount and type of waste generated.
• Enforcement mechanisms: Laws and regulations related to hazardous waste typically include enforcement mechanisms, such as fines, penalties, and criminal sanctions for non-compliance. In addition, regulatory agencies may conduct inspections and audits of facilities to ensure compliance with the regulations.
• Monitoring and tracking: Many countries have systems in place to monitor and track hazardous waste, from its generation to its final disposal. This may include the use of tracking manifests, electronic reporting systems, and inspections of waste transporters and disposal facilities.

Overall, the regulatory framework for hazardous waste is designed to protect human health and the environment by ensuring that hazardous waste is managed safely and responsibly. By implementing effective regulations and enforcing them consistently, countries can reduce the risks associated with hazardous waste and minimize its impact on the environment.

India has proper amendments about hazardous wastes are as follows –

• First Amendments Rules, 06.07.2016
  In the exercise of powers given by sections 6, 8 and 25 of the Environment (Protection) Act, 1986 ( 29 of 1986), the Central Government hereby makes the following rules to amend the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016, namely:-
  • These rules may be known as Hazardous and Other Wastes (Management and Transboundary Movement) Amendment Rules, 2016.
  • They shall come into exercise on the date of their publication in the Official Gazette.
• Second Amendments Rules, 28.02.2017
• Third Amendments Rules, 11.06.2018
• Fourth Amendments Rules, 01.03.2019
• Second Amendments Rules, 12.11.2021
• Sixth Amendments Rules, 21.07.2022

Ineffectiveness of Law

While there are laws and regulations in place to manage hazardous waste, there are still several factors that can lead to the ineffectiveness of these laws. Here are a few reasons why hazardous waste laws may be ineffective:

1. Inadequate enforcement: Even with strong regulations and penalties for non-compliance, the laws may not be effective if they are not enforced consistently and rigorously. Lack of funding, resources, and political will can all contribute to inadequate enforcement.
2. Loopholes and exemptions: Some hazardous waste laws may contain exemptions or loopholes that allow certain industries or activities to avoid compliance. For example, some laws may not apply to small businesses or may have less stringent requirements for certain types of waste.
3. Lack of transparency: In some cases, hazardous waste may be illegally dumped or transported without proper documentation or tracking. This can make it difficult to identify and hold responsible parties accountable for their actions.
4. Rapidly evolving technology and waste streams: Hazardous waste laws may not keep up with the rapid pace of technological innovation and changing waste streams. New types of waste and emerging technologies for waste management may not be adequately covered by existing laws, leaving gaps in regulation.
5. Limited international cooperation: Hazardous waste is a global problem, and effective regulation requires international cooperation and coordination. However, there may be limited cooperation between different countries and regions, leading to disparities in regulation and enforcement.

Overall, the effectiveness of hazardous waste laws depends on a range of factors, including enforcement, exemptions, transparency, technological innovation, and international cooperation. Addressing these issues can help to improve the effectiveness of hazardous waste regulation and protect human health and the environment.

Case Laws of Hazardous Wastes

• Love Canal (1970s): Love Canal was a neighbourhood in Niagara Falls, New York, where Hooker Chemical Company dumped 21,000 tons of toxic waste from the 1940s to the 1950s. In the 1970s, residents began experiencing health problems, and investigations revealed that the waste had contaminated the soil and groundwater. This led to the evacuation of the neighbourhood and the creation of the Superfund program, which provides funding for the cleanup of hazardous waste sites.
• Bhopal disaster (1984): The Bhopal disaster was a gas leak from a pesticide plant in Bhopal, India, owned by Union Carbide Corporation. The leak released toxic gas into the air, causing the deaths of over 3,000 people and injuring thousands more. The disaster highlighted the need for better safety regulations for hazardous industries and raised awareness of the environmental and human health impacts of hazardous waste.
• Koko Chemical Company (1988): Koko Chemical Company was a chemical company in Taiwan that illegally dumped hazardous waste, including PCBs, into the ocean. The waste contaminated the fish in the area, leading to a ban on fishing and a public health crisis. The company’s CEO was sentenced to life in prison, and the case led to increased scrutiny of hazardous waste management practices in Taiwan.
• Ivory Coast toxic waste dumping (2006): In 2006, a company called Trafigura chartered a ship to transport hazardous waste from Amsterdam to Ivory Coast. The waste was dumped illegally in various locations around Abidjan, the country’s largest city, leading to thousands of people reporting health problems. The incident prompted calls for stronger regulations on the transport and disposal of hazardous waste.

These cases illustrate the serious consequences that can arise from improper management and disposal of hazardous waste and highlight the importance of regulations and enforcement to protect human health and the environment.

Conclusion

Hazardous waste control by using windmills, solar energy and so many things come from nature so they produce less waste. We use natural things instead of made chemicals. Chemicals are full of toxicity. Chemicals are very dangerous for our life and animals also. Dogs and cats and so many animals are also in danger with us. Hazardous wastes are very dangerous for small children. Pregnant women and elders are also away from hazardous wastes. 

We take proper steps to get over this problem as follows – 

• We use natural things
• We don’t use plastic bags 
• Sewage waste 

In Delhi, a huge mountain is formed by waste so this is dangerous for our life. Due to this Ganga is also polluted and in festivals, we bathe in Ganga and do puja also due to the puja waste increase. Diya’s and flowers float in Ganga. We control this custom so that our future generation enjoy the fresh air and Ganga. We buy clothes so mindlessly due to this also waste is produced. We throw packets of milk, Maggi and lays in dustbin and we cannot cut properly so we cannot recycle these packets and they become waste. We mix wet waste and dry waste. We didn’t purchase clothes mindlessly and we cut the packets in a proper way so that we recycle them. 

Some clothes are not recyclable in nature so we cannot use or minimise the usage of that cloth. We didn’t mix the wet and dry waste so that waste is recyclable and that waste does not become hazardous waste. In the current scenario, waste is increasing day by day and they create threatening situations for us we cannot help us. Executive and legislative both make effective laws with sanction so that waste products is decreased. Pollution is created by waste. Pollution is also very bad for our health. 

Overall, it is important to understand the dangers associated with hazardous waste and to take steps to reduce its generation and properly manage and dispose of it. By doing so, we can protect human health and the environment for generations to come.

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Reference

1. https://cpcb.nic.in/rules/

This article is written by Varsha Goel, a 2nd-year law student at Kurukshetra University.