Tag: #ConstitutionofIndia

INTRODUCTION

“The Indian constitution is first and foremost a social document, and it is aided by its Parts III and IV (Fundamental Rights and Directive Principles of State Policy, respectively) acting together as its chief instruments and conscience in realizing the goals set by it for all people.” The constitution was purposefully written in broad strokes (rather than ambiguous language) to ensure its flexibility. Constitutions are divided into two types: rigid and flexible. A constitution’s rigidity or flexibility is determined by the nature of the amendment. Anytime the ordinary laws and constitutional laws are amended separately, the constitution is rigid. In a flexible constitution, however, the two of them; ordinary laws and constitutional laws can be amended in an identical manner. The Indian Constitution is neither too rigid nor too flexible; rather, it is a hybrid of the two.

THE INDIAN CONSTITUTION

The Indian Constitution attempts to strike a balance between rigor and flexibility. A special majority of the Parliament, referring to the two-thirds majority of the members of each house i.e.; Rajya Sabha and Lok Sabha present and voting, the majority as well (which should be greater than 50%) of the total membership of each House, can change certain statutes.

Other clauses can be changed with a two-thirds majority in the Parliament and if there is ratification by half of the states. At the same time, there are certain provisions of the Constitution that can be modified in the ordinary legislative process by a simple majority of Parliament. The constitution’s flexibility is enhanced by provisions that allow the parliament to give an addition to the constitution’s provisions with legislation.

The basic structure concept was established in the Kesavananda Bharti case, which has unquestionably strengthened the constitution’s rigor. In fact, if the topic of Basic Structure arises, the Constitution of India is “completely rigorous” according to the Supreme Court. It clarifies that Parliament’s ability to amend the Constitution cannot be used to change, distort, or undermine the Constitution’s core characteristics and principles in any way.

The illustration of India’s constitutional nature has been outlined in this case, which allows for the Parliament to allow changes according to the ever-changing contexts, weighing the importance of such amendments. The Kesavananda case ruling was a thought-provoking, one-of-a-kind, and high-order decision. This 69-day case was meticulously examined, considering every possible outcome of the decision. After a thorough examination of the matter, it was clear that this ruling was required; otherwise, any political party with a two-thirds majority in parliament might propose any alteration that would jeopardize the constitution’s basic structure. Following the implementation of this ruling, the Judiciary, as mandated by the Constitution, is the last arbitrator in determining whether constitutional provisions have been violated. This case overruled Golaknath’s and opened the path for Parliament to fulfill its duty to construct an egalitarian society and welfare state in accordance with the Constitution’s Basic Structure.

This well-known case resulted in the creation of the basic structural theory, which went down in history as saving our constitution and restoring faith in the court, as well as saving the democracy of our country, for which the freedom fighters in the past gave their lives. As a result, the Kesavananda Bharati case has and will continue to have a place in our nation’s constitutional history.

RECENT AMENDMENTS MADE IN THE INDIAN CONSTITUTION

103TH CONSTITUTIONAL AMENDMENT ACT,2019
The Constitution (103rd Amendment) Act made in 2019 has altered two fundamental rights in the Indian Constitution, namely Article 15 and Article 16. These two clauses form the foundation of reservation in the realms of education and government employment. The state now has the power to establish a maximum of 10% quota for “economically vulnerable sectors” of citizens by adding two new paragraphs to Articles 15 and 16 of the Indian constitution. As a result, the total bookings over and above the existing program have increased to 59.50 percent.

Discrimination on the basis of race, caste, sex, religion, or place of birth is prohibited by Article 15 of the Indian Constitution. The amendment attempts to offer reservation to individuals who do not fall under 15(5) and 15 (4) (essentially, SCs, STs, and OBCs), i.e. economically disadvantaged sections so that they can be admitted to educational institutions other than the educational institutions for the minority mentioned in clause (1) of Article 30.

Discrimination in government employment is prohibited by Article 16 of the Indian Constitution. With the amendment, Article 16 (6) is inserted to enable reservations in government positions for people from economically disadvantaged groups. The “economic weakness” will now be determined based on “family income” and other “economic disadvantage factors.”

The Rs. 8 lakh income limit and asset restrictions to determine economic backwardness are the same as the bar set for determining the ‘creamy layer’ for OBC. This effectively eliminates the distinction between the “EWS other than SC, ST, and OBC-NCL” and the OBC-NCL under the 103rd Amendment. This would result in unequal being treated equally.

The Supreme Court has regularly held that overall reservations should not exceed 50% in order to be reasonable and to not jeopardize the basic right to equality. This ’50 percent ceiling’ however, has been effectively violated by the most recent Constitutional change.

Certain structural concepts, such as democratic government, republican government, secularism federalism, judiciary independence, freedom, equality, judicial review power, and so on, form the core or essence of the Constitution and give it a distinct ‘Identity’. This is dictated by the idea of basic structure, and it cannot be changed since it would jeopardize the constitution’s uniqueness.

The Supreme Court ruled in the landmark case of Kesavananda Bharati v. the State of Kerala that the Parliament’s power to amend the Constitution under Article 368 is not absolute and that even a constitutional amendment can be taken down if there are chances of it abrogating or destroying the Constitution’s “basic structure.” In September 1991, the then-P.V. Narasimha Rao government issued an Office Memorandum reserving ten percent of postings for ‘other economically deprived categories.’ The Supreme Court overturned this verdict in Indra Sawhney v. Union of India. The court in Indra Sawhney v. Union Of India and Ors. examined the constitutionality of the quotas in-depth, delving into the idea of backwardness. The reservation was made for a category of citizens who, according to Dr. BR Ambedkar, are those “groups which have not had so far representation in the State.” Indra Sawhney explains one of the reasons behind the 50 percent quota limit, stating that the Constitution allows for “appropriate representation” rather than “proportionate representation.”

The following are some of the key decisions made in the Indra Sawhney case regarding reservation:
• It supported the OBC reserve of 27%, with the exception of the “creamy layer.”
• It overturned the ten percent reservation for economically disadvantaged people, ruling that a backward category of citizens shall not be defined only on the basis of economic factors.
• It ruled that reservations for brought-forward or piled-up reserved vacancies should not exceed 50% of all appointments each year.
• It ruled that reservations can only be made in service or category if the State is satisfied that the representation of the backward class of citizens is insufficient.

In M. Nagaraj v. Union of India & Ors, the Hon’ble Court upheld the constitutional validity of Article 16 (4A) and the proviso to Article 335 and emphasized that the 50 percent ceiling, the concept of creamy layer, and compelling reasons such as overall administrative efficiency, backwardness, the inadequacy of representation, and are some of the constitutional requirements without which the point of equality for opportunities in Article 16 would be lost. Excessiveness in any form of reservation or evaluation, it has also been suggested, would result in a violation of this constitutional requirement. Because of this, the 50 percent reservation bar has been embedded into the fundamental structure of the Constitution’s code of equality.

The Supreme Court ruled in State of Kerala v. N.M. Thomas that Article 16(1), as a component of the notion of equality, allows justifiable categorization of all citizens who are in a similar situation with respect to the law. In other words, even if Article 16(4) of the Indian constitution is not there, Article 16(1) enables reserves and special treatment. Article 16(4) is not be made an exception to Article 16(1); rather, it aims to express what is already inherent in Article 16. (1).

Indra Sawhney provides a midway ground between N.M. Thomas and M.R. Balaji, according to the Supreme Court’s decision. It found a compromise between substantive equality and nominal equality by retaining the ‘50% ceiling’ criterion.

104th Constitutional Amendment Act, 2020
This Act abolished Anglo-Indian reservations in the Lok Sabha and state legislatures while extending reserves for SCs and STs for up to ten years. On December 9, 2019, Minister of Law and Justice Ravi Shankar Prasad introduced this bill for amendment in the Lok Sabha. The bill intended to modify Article 334 of the Constitution. On December 10, 2019, the Lok Sabha passed the Bill with 355 votes in favor and there were 0 votes against it. On December 12, 2019, the bill was introduced in the Rajya Sabha, where it gained 163 votes in favor and there were 0 votes against it. President Ram Nath Kovind of India gave his assent to the law on January 21, 2020, and it was published in the Indian Gazette the same day. On January 25, 2020, the amendment took effect.

Aside from the fact that the Scheduled Castes and the Scheduled Tribes have shown some significant progress for the last 70 years, the reasons that played a part in the Constituent Assembly’s decision to make provisions for the aforementioned reservation of seats still exist, according to Minister of Law and Justice Ravishankar Prasad. Due to this, an amendment to the Constitution was needed in order to keep the Constitution’s inclusive nature as intended by the founding fathers.

The Ministry of Law and Justice further stated that the issue of the extension of Anglo-Indian reservation in the Legislative Assembly had not yet been raised. However, he stated that the matter of terminating the reservation will be addressed by the center at a later date and that the subject matter has not been completely resolved.

The reservation seats for the Anglo Indians were not extended as it was for Scheduled Castes and Scheduled Tribes, which was one of the main criticisms of the amendment. The objective and reason for such an Amendment, provide justification for such enactment. The 104th Constitutional Amendment’s declaration of goal and reason explains the enlargement of the SC and ST reservations but it does not explain why the Anglo-Indian reservation seats were not extended or increased.

In Prashar v. Vasantsen Dwarkadas (1963), the Supreme Court decided that the statement of purposes and reasons for adopting a piece of law cannot be used to interpret the statute if the language used is plain enough. The declaration of objects and reasons, on the other hand, can be utilized to figure out what led to the law and what the problem was being solved through the legislation.

Parliamentarians have considered the interpretation of extending for SCs and STs with the goal of the founding authors of the Constitution. However, when it came to Anglo-Indians, the approach was not in the spirit of the founding fathers, but rather based on numerical data from the 2011 Census, rather than the report on the Anglo-Indian Community given by the 2013 Ministry of Minority Affairs. Anglo-Indians face challenges such as loss of culture, unemployment, identity crisis, educational backwardness, and a lack of acceptable housing amenities, according to a 2013 Ministry of Minority Affairs fact-finding report.

105th CONSTITUTIONAL AMENDMENT ACT, 2021
On August 9, 2021, the Ministry of Social Justice and Empowerment introduced the 127th Amendment Bill of the Constitution, which was later approved as the 105th Constitution (Amendment) Act. both the Houses of the legislature passed the act unanimously without delay on subsequent days. The major goal of enacting this Act was to bring back the states’ ability to identify their own state’s backward classes.

SEBC and OBC
In India, the Centre creates a separate list that recognizes the Other Backward Classes (OBC). Similarly, each State determines which classes are classified as Socially and Educationally Backward Classes (SEBC) of that state. Articles 15(4), 15(5), and 16 of the Indian Constitution have established these lists which are essential for the framework of reservation and quotas.

The Constitution (102nd Amendment) Act of 2018 was enacted to address the Central List of Socially and Educationally Backward Classes (SEBCs). Independent lists of the backward classes have been maintained by the Central Government and the State Governments since 1993. However, the Constitution (102nd Amendment) Act of 2018 raised the question of whether it mandated a single Central List of SEBCs detailing the SEBCs for each State, removing the State’s ability to establish and maintain its own State List of SEBCs. Furthermore, because authority has already been given to the Central government to issue lists, including Central in the then-amended Article 342A was redundant.

A contentious piece of legislation- which is The Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018, was considered unconstitutional until the Supreme Court pronounced it illegal in Jaishri Laxmanrao Patil v. Chief Minister (2021).

Several writ petitions challenging the constitutional legality of the reservation act have been filed in the Bombay High Court. The petitioner’s primary points of contention were as follows:

The Act is unlawful because it exceeds the 50% ceiling established on a reservation in any state according to the Indra Sawhney v. Union of India decision (1992).

The Act establishes reservations based on the Justice Gaikwad Commission’s findings, which purportedly lacks trustworthy, scientific, and appropriate facts to prove either Marathas’ backwardness or the extraordinary circumstances that justify raising reservations in Maharashtra.

The Act establishes reservations based on the Justice Gaikwad Commission’s findings, which purportedly lacks trustworthy, scientific, and appropriate facts to prove either Marathas’ backwardness or the extraordinary circumstances that justify raising reservations in Maharashtra.

The state government had passed the Act without complying with the 102nd Constitution (Amendment) Act’s procedural provisions.

The respondent- The Maharashtra State Government, argued that special circumstances, such as an increase in the incidence of suicides among Maratha families due to social and economic issues, justified the Act.

The Bombay High Court upheld the reservation for the Marathas but requested the state administration to cut it to 12-13 percent — the level proposed by the State Backward Class Commission, as opposed to the 16 percent given by the Act. The rationale was that, as the Maharashtrian government demonstrated, the Supreme Court-imposed ceiling on the total percentage of seats might be exceeded in extraordinary situations.

The Supreme Court accepted an appeal from the Bombay High Court’s verdict for the Maharashtra state government on July 12, 2019. The bench overturned the High Court verdict and declared the SEBC Act unconstitutional since there were no special circumstances that allowed for the violation of the 50% reservation mark. This was the unanimous decision of the Bench.

Meanwhile, the majority of the Bench, with two exceptions, believes that the 102nd Amendment deprives the state of the ability to identify backward classes. According to the ruling, only the President can issue a list that points out the economically disadvantaged, which Parliament can then change. In this regard, states merely have a recommending power. On this point, Justices Bhushan and Nazeer dissented, believing that Parliament did not have any intention to withdraw the States’ identification authority.

CONCLUSION

The Indian Constitution is a fusion of the United States’ basic law doctrine and the United Kingdom’s unwritten constitution’s theory of Parliamentary sovereignty. In other words, the Constitution is very stiff that Parliament, the supreme law-making body, cannot modify it. India picked a medium ground between the formality of the United States Constitution and the flexibility of the United Kingdom’s unwritten customs in order to allow the new nation to grow smoothly.

These Constitutional Amendments are significant because it reflects our society’s growing need for development and advancement, particularly among those who need it the most due to their backwardness. The fact that many communities require the presentation of the OBC category for reasons other than political power is linked to the belief that many of them have a lot of room for development in India. The severe caste system has yet to be dismantled, and this bleak reality requires further reflection and policy creativity. Another problem raised by this Amendment is how will the responsibilities be carried out by the states, as states will now be driven by local politics to include newer communities in their OBC lists.

As a result of the Constitution Amendment Bill, the standard operating procedures of the OBC, the scheduled castes, and tribes reserve have been clarified, ensuring empowerment and representation for communities that are frequently left out of inclusive development debate. Its goal is to empower people from underdeveloped communities by improving their social status via quality education and job opportunities, paving the road for inclusive development.

Written by Tingjin Marak, a student at Ajeenkya DY Patil University, Pune.

The Supreme Court of India emphasized in Satish Chandra Verma vs. Union of India that the freedom to go abroad, like marriage and family, is a genuine and vital human right. “The right to travel abroad is an important basic human right because it fosters an individual’s independent and self-determining creative character,” wrote a bench led by Justices L. Nageswara Rao and M.R. Shah, “not only by expanding his freedoms of action but also by expanding his scope of experience.

In this case, an IPS officer filed an appeal, from Coimbatore, Tamil Nadu. He claimed in his appeal that he was the subject of a departmental inquiry and that the Central Administrative Tribunal (CAT) had denied him permission to visit relatives overseas because of it. Despite the fact that Inspector General of Police Satish Chandra Verma was not facing any criminal charges, the Madras High Court upheld the Central Administrative Tribunal’s decision that he may not go abroad without first obtaining Vigilance clearance. The Supreme Court overruled the verdict of the High Court, citing Maneka Gandhi vs. Union of India and Kent vs. Dulles, two landmark US Supreme Court cases (1958).

In its judgment in Maneka Gandhi vs Union of India, the bench stated that the right to travel abroad is a fundamental human right since it strengthens an individual’s independent and self-determining creative character by widening his job experience and giving him more freedom of action. The Supreme Court noted the ruling in the latter case, which stated that “freedom to go abroad is a fundamental human right with major societal relevance.” The Supreme Court said that the freedom to travel globally is a core human right that also relates to private life, such as marriage, family, and friendship.

Right to travel internationally

Article 19 of the Indian constitution guarantees the freedom to freely move beyond Indian territory; nevertheless, the right to go abroad is derived from Article 21’s right to life and personal liberty.

Liberal interpretations have given the phrase “life and liberty” huge meanings in this article. Life here refers to both one’s physical existence and one’s quality of life. Personal liberty, on the other hand, encompasses a wide variety of rights in addition to freedom from physical constraint or confinement.

The Supreme Court stated in Maneka Gandhi v. UOI that the term “personal liberty” as used in Article 21 has a very broad meaning and it encompasses a plethora of rights that include man’s personal liberty, some of which have been elevated to the status of separate fundamental rights and given additional protection under Article 19.

Article 21 defines the state’s negative duty, although it does not totally nullify restrictions or limitations if carried out in line with the “process” prescribed by law. An individual’s personal liberty and the rights that come with it, as well as the individual’s duties and obligations to the state and other citizens, must be balanced. Satwant Singh Sawhney v. D. Ramarathnam: The Supreme Court ruled in Satwant Singh Sawhney v. D. Ramarathnam that the “expression” of personal liberty includes freedom of movement and travel internationally. The necessity to hold a passport in order to
legitimately going overseas may raise the question of whether it is a barrier to an individual’s right to travel abroad, however, the Supreme Court found against this in the same case.

In a nutshell, the right to freely travel throughout India’s territory and the right to freely travel abroad both fall under the umbrella of “personal liberty,” although being provided under separate parts of the constitution. Specific limits on traveling overseas may apply, which must be followed in compliance with legal regulations. There are several fair restrictions on roaming freely throughout India.

Article 12 of the 1966 International Covenant on Civil and Political Rights addresses the freedom to travel abroad in international law. It empowers anybody, including themselves, to exit any country. As a result, it enhances the basic freedom of foreign travel. However, the Covenant, like the Indian Constitution, places limitations on the right “as may be needed by law to protect national security, public order, health, or morality in the interests of others’ rights and freedoms,” and these restrictions are compatible with the Covenant’s other rights.

The United Nations Human Rights Committee, which oversees the Covenant’s implementation, has underlined that Article 12 covers both the freedom to leave for permanent emigration and the right to travel abroad. It also safeguards a person’s freedom to pick his or her own travel destination.

While the UN Human Rights Council asserts that the right to dwell in a country includes the right to get the necessary travel documents, the Supreme Court has a different view on the passport and travel document problem. In Satwant Singh Sawhney v. D. Ramarathnam, the Supreme Court argued that a passport is a political document with no absolute right to get one because it is up to the state to give or deny one. The government does not appear to need to assert someone it does not think acceptable because the document states the holder’s respectability.

When there is a dispute between national and international law, the Supreme Court stated in Gramophone Company of India vs. Virendra Pandey in 1984 that national law shall prevail.

The right to travel freely across the world has been recognized by the Supreme Court as a fundamental right. Following Article 21, it is suggested that a new article, namely Article 21A, be included with the words “A21. (2) Nothing in section (1) stops the State from implementing legislation that sets appropriate boundaries in the interests of India’s sovereignty and integrity, friendly relations with other states, and the general public.” An individual provision for the right to travel abroad might help to accelerate the implementation of this critical right, which is now underway.

Written by Muskan Patidar student at Kirit P. Mehta School of law (NMIMS), Mumbai.

Introduction

India, a country with many ideologies, religions, dialects, castes, and topography, represents unity and integrity. However, when it comes to the Varna System, which divides Indians into Brahmins, Kshatriyas, Vaishyas, and Shudras, there is no such unity displayed (Scheduled Casts, Scheduled Tribe, and Other Backward Communities, the most oppressed ones). As a result, the founders of the Indian Constitution established the principle of the reservation to ensure that every citizen’s social, political, educational, and economic rights and dignity be protected equally.

Current Position

In India, the caste system is profoundly founded in certain theological and social views that are highly conservative, and it has eventually estranged countrymen while categorizing ethnic and minority groups. This socioeconomic marginalization stems from the nebulous and nonsensical Principle of Purity and Pollution, which states that the lower castes are mostly linked with harmful vocations and are hence stigmatized by the society’s mainstream population. The Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes now make up more than half of the country’s population (OBC). Since the dawn of time, the Indian civilization has recognized significant social, educational, and economic disparities among its citizens. Though there was no caste-based divide in Vedic civilization, the rise of Brahminical culture in the Indian subcontinent brought with it the active form of class and caste structure.

The Constitutional provision of reservation

Article 14
Article 14 emphasizes two points: equality before the law and equal protection under the law. Article 14 imposes a duty on the state for the benefit of all people living in India’s territory. As a result, residents are not the only ones who gain from Article 14. Every natural or artificial person, whether a citizen or an immigrant, is entitled to the protections afforded by this article. The reality, on the other hand, frequently paints a different picture.

Article 15(4)
“Nothing in this article or clause (2) of Article 29 shall prevent the state from making any provision for the advancement of any socially and educationally backward classes of citizen or the Scheduled Castes and the Scheduled Tribe.” Such “special provision” as are permissible under clause (4) of Article 15 must, However, those specific provisions are for the progress of persons who fall into those categories, and thus they are not for the advancement of those who are not covered by this clause. Even clause (4) of Articles 15 and 16 cannot be applied to all the vague purposes of the reservation. In the State of M.P v Mohan Singh the Supreme Court verdict that though prisoners were from the backward class they will be equally liable for punishment as of other prisoners as they have broken the law.

Article 16(4B)
“Nothing in this article shall prevent the State from considering any unfilled vacancies of the year which is reserved for being filled up in that year following any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered
together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on the total number of vacancies of that year”.

The 50% Rule
In Indra Sawhney vs Union Of India, 1992, the court covered caste-based reservation, ruling that “No reservation or preference provision may be sought with such eagerness as to demolish the fundamental notion of equality.” The Janata Party administration established the Second Backward Groups Commission, or Mandal Commission, in 1979 to identify India’s socially and educationally backward classes. Its chairman is Bihar MP Bindheshwar Mandal. At the time, India had established reservations for Dalits and Adivasis. The Mandal Commission’s report, published in 1980, proposed that quotas be provided to the Other Backward Classes, a large group of castes that fundamentally fulfill the caste system’s “shudra” label. The report was kept in cold storage after Congress regained power shortly after it was filed. Another non-Congress administration, this time led by VP Singh, took a decade to implement the Mandal Commission’s recommendations, sparking widespread protests and the Indra Sawhney case in the Supreme Court.

The concept of ‘Creamy Layer’:
The Supreme Court of India gave birth to the concept of a “Creamy Layer” because the Indian Constitution does not provide for it. It generally refers to that backward caste be it SC, ST, OBC, or even any unreserved one who may be regarded as untouchables or not got enough land, money to live a healthy life and their children will not be able to get the reservation. For the first time, the term creamy layer got introduced by the Sattanathan Commission in 1971 which reported that the “creamy layer” should be exempted from the OBC reservation of civil services, and with that, the “creamy layer” principle has been laid down by Supreme Court for the exclusion of the advanced sections of the backward class groups for reservation. However, it ultimately divided society into backward and forward classes.

Concluding Remarks & Suggestions:

The constitution’s framers aspired to create a casteless and classless society. They wanted to uplift the underprivileged and provide them with a decent existence by concentrating on their job, education, and social standing. In a nutshell, the principle of the reserve was ingrained in the foundations of Equity and Justice. However, over time, the whole thing went off the rails. As a result of evaluating different aspects of the government’s reserve policy covered under Articles 15 and 16, certain flaws in reservation policies have been identified. The authors’ humble proposals for eliminating such shortcomings and achieving the desired aims of reservation policy is as follows:

Despite the government’s haste in implementing the 10% quota for Economically Weaker Sections in the unreserved category, it is past time for it to rethink its strategy on defining poverty levels and ensure that all poor and needy individuals are included.

Above all, the authors argue that it is past time to focus on the fundamental difficulty that the Reservation Laws face, which is nothing more than a defective system for implementing or enforcing the laws or policies that have been enacted. The true beneficiary is poor in information, which is a major worry right now.

Written by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.

Introduction

“We know that in conflict, there is the only outcome that is A Victory.”

– Late General Shri Bipin Rawat (C.D.S.)

The Military¹ which is commonly known as The Armed Forces protects a country from its enemies. Having a strong-armed force is very important for any nation-state. It ensures our internal peace, gives security from external threats, helps in maintaining friendly relations, makes us capable of giving humanitarian assistance when needed, helps us in carrying out disaster relief as well as gives us much needed respect and importance in the world pedestal as having a powerful military makes foreign countries honor their agreements and treaties. There are numerous other important benefits to any country in having a robust military.

In India, the military or armed forces are comprised of three wings and they are; The Army², The Air Force, and The Navy. As the topic suggests our focus here would be on The Indian army and the laws that apply to it.

The Indian Army is the land-based and the largest wing of the Indian armed forces/Indian military which are professionally headed by The Chief of Army Staff who comes under the direct control of The Chief of Defense Staff appointed by The President of India being The Supreme commander of The Armed Forces in India.

Laws applicable to The Army

There are several laws that apply to the army and they are as follows:

1. The Army Act, 1950;
2. The Army Rules 1954;
3. The Territorial Army Act, 1948;
4. The Regulations for the Territorial Army, 1976; and
5. The Army and Air Force (Disposal of Private Property) Act, 1950.

1. The Army Act, 1950³
   This Act was made to consolidate and amend laws relating to the regular army. A need for the general revision of the already existing 3 Acts namely The Army Act, 1911; The Navy Discipline Act, 1934; and The Indian Air Force Act, 1932 was felt necessary as the provisions in those Acts were very out of date and insufficient as per the modern requirements after the independence. The need became imperative for obvious reasons and for making the law on the matter a self-sufficient one. The object was also to make all the 3 armed force services similar in form and fulfilling to the demand and special requirements that each service might demand. The Army Act, 1911 had severe punishments and also has not defined the offenses properly as well as the punishments were not based on the gravity of offenses committed. The new 1950 Act also enhanced the status and responsibility of The Army Courts. This new Act was framed to suit the new constitutional setup, to bridge the gap between the army and the civil laws, to bring the new law in conformity with The Code of Criminal Procedure, 1973. The limitation period for commencement of trial was increased from 6 months to 3 years. The power to issue a summons for the production of documents and to compel appearance was introduced. Many other consequential amendments were also made. This Act was passed by The Parliament on 22nd May 1950 and it came into effect on 22nd of July 1950. This Act has been rarely amended and has almost remained the same since it was first enacted.
2. The Army Rules, 1954⁴
   The rules are an extension of The Army Act, 1950 as they were framed in exercise of the powers conferred by section 191 of the Army Act, 1950. These rules cover the service conditions including enrollment, attestation, oath, affirmation, tenure, transfer, dismissal, discharge and termination from service, release from service on medical grounds, retirement from service, resignation from service, rights of servicemen as well as the restrictions on their rights, the authorities empowered under established commission, and, the rules & procedures of trials. These rules were notified in the official gazette on the 27th of November 1954.
3. The Territorial Army Act, 1948⁵
   The territorial Army is that part of the regular army that has been relieved from the regular army to perform its duties and assist in civil administration during times of natural calamities and maintenance of essential services when lives of communities and security of the nation are at risk.⁶ Clear by its name, this Act was introduced to constitute Territorial Army was enacted on the 10th of September 1948.
4. The Regulations for the Territorial Army, 1948⁷
   The rules are an extension of the Territorial Army Act of, 1948 as well as they supersede the 1948 Act. These rules cover the service conditions i.e. The constitution and establishment, appointment, and duties of commanders, recruitment, appointment, promotion, retention, resignation, transfer and retirement of servicemen, discipline, offenses, punishment, duties, training, uniform, equipment, accommodation of commanders and servicemen as well as it covers finance, reports, returns, books, forms the of organization and of servicemen serving in the Territorial Army. These rules were notified in the official gazette of India on the 2nd of March 1976.
5. The Army and Air Force (Disposal of Private Property) Act, 1950⁸
   This Act was enacted with the intention to dispose-off the private property of persons who die, desert, are found to be of unsound mind, or are officially reported missing while they were in active service. The Act also makes provision for the appointment of the committee which decides what property belongs to the persons mentioned above and who are persons legally entitled to be his or their legal representatives so that after the due process the property can be handed over to them. This Act was enacted on the 28th of April, 1950, and was enforced on the 22nd Of July, 1950.

There are other laws as well which are relevant to or have provisions relating to the Army such as; The Constitution of India, 1950; The Armed Forces (Special Powers) Act, 1958; The Armed Forces Tribunal Act, 2007; The National Service Act, 1972; and The Indian Reserve Forces Act,1888. But these laws are not primarily and specifically focused on Laws relating to Army and hence, they are not covered in this article and are intentionally left for detailed discussion maybe for some other day.

References:

1. https://dictionary.cambridge.org/dictionary/english/military
2. https://en.wikipedia.org/wiki/Indian_Army
3. https://www.indiacode.nic.in/bitstream/123456789/1930/1/AAA1950____46.pdf#search=army
4. https://www.mod.gov.in/sites/default/files/armyrules1954.pdf
5. https://www.indiacode.nic.in/bitstream/123456789/1497/1/A1948-56.pdf#search=army
6. https://indianarmy.nic.in/Site/FormTemplete/frmTempSimple.aspx?MnId=KVkLiCMp4dcbof+pA01XhA==&ParentID=g6xKA8ErVv7s2VzMTl7vZA==#:~:text=The%20Territorial%20Army%20is%20part,Security%20of%20the%20Country%20is
7. https://indianarmy.nic.in/WriteReadData/Documents/taregulations.pdf
8. https://www.indiacode.nic.in/bitstream/123456789/2029/1/AAA1950____40.pdf#search=army

Written by Naman Practising Advocate at Patna High Court and student at Gujarat National Law University.

Abstract – The historical foundations of Indian experiences and conceptions of property and wealth are considerably different from those of Western countries. The current property system, as we know it, sprang from unique events in Europe throughout the 17th and 18th centuries, and hence its lessons were not generally applicable. The concept of property rights is another economic sector where the solution is both complex and crucial. The author attempts to determine the motivation behind this unfortunate move.

INTRODUCTION

Property rights are not recognized as basic rights in the Indian Constitution. The 44th amendment, passed in 1977, made the right to acquire, keep, and dispose of property no longer a basic right. However, Article 300 (A) was added to another section of the Constitution to state that no one’s property may be taken away unless by law. As a result, the basic right to property has been replaced with a statutory right to property.

Article 19 (1) (f)
By providing an absolute basic right to property, the Indian constitution endeavored to reconcile the right to property with the right to recompense for its acquisition, balancing it with reasonable restrictions, and adding a further fundamental right of compensation if the properties are acquired by the state. Article 19(1) (f), which was balanced by Article 19(5) and the compensation article in Article 31, demonstrated this. When the state discovered that an absolute right to property and people’s ambitions were not the same, the legislature was obliged to change the constitution to make the aforementioned right to property subject to social welfare.

DOCTRINE OF EMINENT DOMAIN

This theory allows a sovereign to purchase private land for public use if the utility of the land can be shown beyond a reasonable doubt. In the current setting, this concept resurrects the age-old conflict over state authority vs. individual rights. Here comes the DID (Growth Induced Displacement), which refers to the forcible removal of communities from their homes, often from their ancestral lands, for the sake of economic development, and is considered a violation
of human rights on an international level.

Essential elements of this Doctrine:

• A piece of property is seized for public use.
• The seized property has been compensated.

As indicated above, the deleted Article 31 imposed two constraints on Eminent Domain power.

SUPREME COURT’S APPROACH TO THE RIGHT TO PROPERTY

The approach of the Supreme Court regarding the right to property may be separated into two phases:-

1. The time till the right to property was a fundamental right (pre-1978)
2. The time after the conversion of the right to property as a constitutional right (post-1978)

Right to Property as Fundamental Right
During this time, the Supreme Court went out of its way to oppose the right to property and the right to accumulate wealth, as well as to hold that, concerning Article 39, the distribution of material resources to better serve the common good and the restriction on wealth concentration, the right to property and the right to accumulate wealth were unconstitutional. The judiciary, on the other hand, is in charge of taming the socialist state’s abuses of the right to property and wealth. During the Liberalisation period, the Supreme Court endeavored to reinterpret the rules
that safeguard the right to property to make the protection genuine rather than illusory and to reduce the claim of wealth distribution.

However, this has been a piecemeal approach, and much more has to be done to restore the constitution’s original balance. This indicates that property acquisition is not just temporal but must also adhere to spiritual rules. Indian ideas understand that while the property can be enjoyed that has not been gained exactly according to the law, it cannot be termed the person’s true property.

Right to Property as Constitutional Right
The backlash against Articles 19 (1) (f) and Article 31 of the Constitution as Fundamental Rights began almost immediately after it was enacted in 1950. Thus, times have changed drastically in recent years. India is no longer viewed solely from the perspective of socialist politicians. It’s India Shining as viewed through the eyes of financial behemoths like the Tatas, Ambanis, and Mahindras, who have an inexplicable passion for capitalism, money, and markets. There’s another point of view. Industrialists and developers are vying for land across the country to establish Special Economic Zones.

Previously, the Supreme Court had defined some basic and unchangeable parameters and features of the Indian state and constitution, such as the country’s democratic form of government, as its basic structure, which could not be changed even by constitutional amendment, in the famous Kesavanand Bharti case of 1973. However, in his decision, Justice H.R. Khanna made a brief remark to the effect that citizens’ fundamental rights may not constitute a fundamental component of the Constitution.

Flaws in the 44th Amendment Act
The amendment was passed without considering the following disadvantages:
a. The close relationship between property and other fundamental rights, which the Janata Party promised to restore;
b. The impact of this change on the legislative power to acquire and requisition property;
and
c. The relationship between state policy directive principles and fundamental rights.

Implications
a. The Right to Property would no longer be a Fundamental Right, but rather a Constitutional Right. Only the High Courts, not the Supreme Court, can now question the legislation that infringes the fundamental right to property.
b. With the repeal of Article 31, the government was no longer obligated to recompense anyone whose land had been taken under the authority of a statute enacted by Parliament.

As of now, it is beyond the scope of my research and understanding to determine whether Proposition (ii), i.e. property deprivation without compensation, is still legally tenable, especially in light of the Supreme Court’s ruling in the Maneka Gandhi case, which stated that every provision of the Constitution must be explained in a fair, just, and reasonable manner. As a result, any law that deprives a person of his property must do so in an explainable manner. It may be claimed that the only legitimate way to deprive someone of their property is to provide them with appropriate recompense. This debate, however, is not entirely relevant to the topic of this article.

CONCLUSION

Personal rights such as the ability to vote, freedom of expression, and personal liberty were once regarded to have a greater position in the hierarchy of values than the right to property. As an outcome, judges are expected to strike down legislation that infringes fundamental rights than those that infringed property rights. However, courts of law have determined that the distinction between the two is illusory and that no one appears to have given any consideration to why property rights are not personal rights. In 1972, the Supreme Court of the United States, which had priorly provided a warm welcome to the difference between property and personal rights and accorded the former a preferred status, laid to rest both the difference and the preferred status of so-called personal liberties or rights by announcing that the dichotomy between property liberties and personal rights is a false one.

Whether the property in conflict is a home, a welfare check, or a savings account, the right to enjoy property without illegal deprivation is an aspect of a personal right, just like the right to travel or the freedom to speak. In reality, the human right to liberty and the personal right to property are fundamentally intertwined. Without the other, neither could have significance.

Written by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.

ABSTRACT

Interpretation of Article 21 has been given the widest amplitude post the judgment of Maneka Gandhi and since then it has included rights such as the right to food, the right to shelter, and a host of other rights.

INTRODUCTION

Article 21 is one of the most vital and indispensable fundamental rights that is enshrined in part III of the Indian constitution. It guarantees the right to life and personal liberty to each and every individual irrespective of his citizenship and states that no individual would be deprived of the above-mentioned rights except according to the procedure established by law.

The interpretation of article 21 was initially given a very restrictive and narrow meaning soon after the commencement of our constitution. It was after the landmark judgment of Maneka Gandhi v UOI¹ that the scope of article 21 was drastically widened. Prior to Maneka Gandhi’s judgment, Article 21 guaranteed the right to life and personal liberty only against arbitrary and unreasonable executive actions and not from legislative actions. The arbitrary and unfair state actions that interfered with the life and personal liberty of the individuals could be protected and upheld if it was validated by the law. However, after the judgment of the Maneka Gandhi case, it was held that Article 21 protects an individual’s fundamental right of life and personal liberty from the arbitrary, unjust and unreasonable actions of both the executive and the legislature. To deprive a person of his rights under Article 21, there has to be a valid law and the procedure prescribed by the law has to be just, fair and reasonable.

RESTRICTIVE INTERPRETATION OF ARTICLE 21

1. A K Gopalan v. UOI ²
   The petitioner contended that Article 21 must be read together with the rights encompassed in Article 19 (1) and 19 (5) as Article 19 dealt with substantive laws and Article 21 dealt with procedural laws. Moreover, the phrase “procedure established by law” meant the due process of law and included the principles of Natural Justice. The court, rejecting the above contentions gave a narrow and restrictive interpretation of Article 21 and held that Article 21 protected an individual only from those arrests and detentions that are made without the due authority of law or in other words Article 21 protected the physical liberty of a person and did not include any other rights. Moreover, the state-made laws did not include within its sweep the principles of natural justice.
2. Kharak Singh v. State of UP ³
   The court, in this case, held the domiciliary visits by the UP police that led to surveillance of the petitioner as illegal because the police action was not validated by any law and it led to an invasion of personal liberty as the term personal liberty was not only limited to prison confinement but also other forms of restrictive bodily restraint.
3. Govind v. State of M.P ⁴
   The court in this case upheld the whimsical and unreasonable domiciliary visits by the MP police which was violative of the fundamental right of life and personal liberty under Article 21 as the same was validated by Section 46 of the Police Act. Since the regulations had the force of law and were duly prescribed by the law, hence they were deemed as valid.

LIBERAL INTERPRETATION

Maneka Gandhi v. Union of India ⁵
This landmark case examined the amplitude of the phrase “personal liberty” used in Article 21. The passport of the petitioner in the given case was impounded by the government under the Passport Act 1967 in the interest of the general public. The majority judge bench, in this case, construed the term ‘personal liberty in the widest possible manner and thereby, exercising the rules of natural justice held the act of impounding of the passport as illegal. The court overruled AK Goplan and held that Article 21 was inclusive of Articles 19 and 14. The court held that in order to deprive an individual of his personal liberty, there must be valid law, prescribing a procedure and the procedure so prescribed should be fair, just, and reasonable.

The judgment of Maneka Gandhi paved way for the liberal interpretation of Article 21, thereby leading to the inclusion of a host of rights as fundamental to life and personal liberty under Article 21. These included the right to livelihood, right to clean air, right to privacy, right to gender expression, right to food, right to shelter, right to health, right to education, right to sleep, right to die, and a bunch of other derived rights.

RIGHT TO FOOD AND SHELTER

Food is one of the most crucial compelling necessities of human life after air and water. All the activities of mankind are directed towards satiation of this very need. It provides the much-needed nutrition to the human body which is vital for survival, growth, and bodily development. It is needless to further underscore its importance further given its prima facie absolute importance for the continuation of life on earth. Juxtaposed to this very importance of food for survival, there exist several lakh people in self-sufficient and food secure countries like India who die every day out of hunger and starvation. The vicious circle of the twin evils of poverty and unemployment often leads to hunger, prolonged malnutrition, and distress. Even if the direct cause of many such deaths may not appear to be from starvation prima facie, the somber reality remains unchanged that lack of food and avenues of employment often leads to prolonged periods of malnutrition, making them more vulnerable to diseases and distress, thereby, ultimately resulting in their deaths. On one hand, where the poor dies of hunger, it is even more appalling to note that the granaries of the FCI abound in food grains and often rot over there. Policy changes for appropriate nutrition requirements and distribution of food grains free of cost to the needy and destitute have to be executed with due diligence in order to correct this perpetuating wrong and ensure justice.

There is an imperative need for a paradigm shift from viewing the policy changes inequitable food distribution as acts of benevolence to that of it as the right of citizens. Various judicial pronouncements have been rendered in order to correct this perspective and ensure equity. Given the centerpiece importance of the right to food, the right to shelter also forms one of the very vital subsidiary human rights. A permanent roof on the head has traditionally been a sign of social security. It provides the much-needed material support and security for the realization of our avenues. It is an important indicator and buttress for the necessary progress and growth of the human being. The right to shelter, thus, forms an intrinsic part and parcel of the right to live with dignity.

The right to food and shelter, thus, form an indispensable and rudimentary need of human life. They are the bare necessities of life that go into everyday survival and ensure a dignified life. Given the expanding scope of Article 21, which has been given the widest possible interpretation through the various bold judicial enactments and decisions in recent times, Article 21 has included within its sweep an array of rights that have been deemed fundamental for a reasonable survival and realization of the worth of human lives.

The fundamental right under Article 21 that guarantees the right to life includes the right to live with human dignity with such basic amenities of life such as food, clothing, shelter, education, livelihood, medical care, decent environment, etc. that provide a reasonable standard of living, thereby providing scope for the development of human resources as a whole. Besides Article 21, Constitution, through the instrumentality of DPSP under Article 39 A and 47 mentioned in part IV of the constitution have also cast a positive obligation on the state to take affirmative steps, so as to meet the ends of equity and justice. Article 39A requires the State to direct its policies so as to secure all its citizen’s adequate means of employment and Article 47 directs the state to raise the level of nutrition and standard of living of its citizens by providing them avenues of shelter, clothing, education, health, and other amenities for integrated development.

The right to food and shelter can thus be enforced under article 32 of the constitution. The Supreme Court, through its various pronouncements, has rightly held these rights as fundamental to survival and has thereby kept it under the ambit of Article 21 of the Indian constitution.

1. Chameli Singh v. State of UP ⁶
   The SC held the right to shelter as a fundamental right under Art. 21 of the constitution. The court held that in given civilized societies, human living did not imply a mere animal existence, but included all those facilities that go into making the human life worthful and dignified. The right to live implied the basic human rights of food, shelter, water, medical care, education, clean environment, sanitation, and other amenities. The right to shelter not only includes the mere facility of a roof over one’s head but includes the right to have all those necessary infrastructures that enable one to live off a meaningful life and develop as a human being.
2. Francis Coralie v. union Territory of Delhi ⁷
   The Supreme Court in this case interpreted the Right to Life enshrined under Article 21 and held that the right to life included more than mere animal existence and physical survival. The right to ‘life’ was not confined to those physical faculties or limbs through which we interact with the outside world but includes the right to live with human dignity which includes all those necessities that go into survival such as food, clothing, shelter, and facilities for education and expression.
3. PUCL v. Union of India ⁸
   In this case, the Supreme Court held the right to food as a fundamental right of the people under Article 21 that guarantees the right to life. Court held that State ought to provide food grains free of cost from the surplus reserve lying with the States to the starving people such as destitute children /men/ women, aged, infirm, disabled who were unable to purchase food grains. They have the right to get fed under Article 21.
4. P.G. Gupta v. Slate of Gujarat and Ors ⁹
   The court held that the basic needs of man in any civilized society traditionally include the trinity of food, clothing, and shelter. The Right to life under Article 21 includes within its sweep right to food, right to reasonable accommodation, and right to a decent environment.
5. Kapila Hingorani vs State Of Bihar ¹⁰
   The court held that the employees of the public sector undertaking have a fundamental right under article 21 to get the salaries paid by the government as the denial of the same may lead to hunger which is a gross violation of human rights. The State cannot claim lack of resource and abdicate from its duty to pay its employees as the same would amount to a denial of basic and indispensable fundamental rights under Article 21.

Conclusion

Article 21 rightly seeks to serve the interests of all individuals irrespective of their by validating their right to life and personal liberty. By including the sets of rights that are crucial and imperative for the survival of human beings with dignity and that form an indispensable part of the basic human rights, it serves the purpose of equity, justice, fairness, and principles of natural justice.

Citations

1. AIR 1978 SC 597
2. AIR 1950 SC 27
3. AIR 1963 SC 1295
4. AIR 1975 SC 1378
5. AIR 1978 SC 597
6. (1996) 2 SCC 549
7. AIR 1981 SC 746
8. 2000 (5) SCALE 30
9. [1995] Supp. 2 SCC 182
10. 2003 Supp(1) SCR 175

Written by Riya Ganguly student at Bharati Vidyapeeth New Law College, Pune.

Introduction

India has accomplished a great deal since independence, and one of its biggest successes is its ability to develop its satellites, launch systems, and ground control technology for commercially launching not just Indian but also foreign satellites. ISRO now holds a monopoly on Indian space activities with the help of various industries, both private and public, providing services on a large scale. ISRO now employs over 17,000 people, and its yearly budget has increased to INR 100000 million (almost US$1.3 billion) from INR 60000 million five years ago¹. Just like other industries, the legal industry helped in regulating laws related to outer space. The Constitution of India, 1950, the Satellite Communications Policy, 2000, and the updated Remote Sensing Data Policy, 2011 are the sole legislative frameworks that control India’s space sector.

Legislations Governing Space

Over the last 50 years, the ISRO has been at the forefront of pushing this industry, providing a variety of services ranging from navigation and communications to images, and facilitating a variety of social and economic activities. Although ISRO is considered to be the only governing body, India also has some policies regulating different issues under Space Law which are as follows:

• Satellite Communication Policy, 1997²
  The Satellite Communication Policy of 1997 has as its goals the development of a satellite communications service business as well as the continued use and development of India’s capabilities in the areas of satellites, ground equipment design, and launch vehicles The issued guidelines and norms clarified the policy’s scope and emphasized the use and development of the INSAT network, as well as giving Indian satellites performing other critical functions preferential treatment to promote telecommunications, broadcasting, and meteorological services in India.
• Remote Sensing Data Policy, 2011³
  According to the 2011 RSDP, satellite remote sensing data with a resolution of up to 1m can be obtained by obtaining a license from the DOS, but any request for satellite remote sensing data with a resolution of greater than 1m requires special clearance from the High-Resolution Image Clearance Committee (HIC) due to national security concerns. For the procurement of high-resolution photographs, the Indian government department is exempt from obtaining HIC approval.
• Technology Transfer Policy
  It is a well-defined and methodical policy for the transfer of know-how of technologies and products generated by Indian Space Centres to Indian companies, as well as their commercial use concerning various space initiatives. To achieve significant industrial participation, it provides services relevant to space systems, such as communications, broadcasting, geospatial information, and manufacturing satellites and their components. It also allows for the licensing of technological know-how from various ISRO centers; as a result, about 300 technologies have been transferred to domestic companies too far.
• Indian National Space Promotion and Authorisation Centre (IN-SPACe)⁴
  The Indian National Space Promotion and Authorisation Centre (IN-SPACe) was authorized by the Union Cabinet on June 4, 2020, to offer a fair playing field for private market firms to exploit Indian space infrastructure. It intends to give the private sector a much-needed boost by assisting, advising, and encouraging private industry engagement in space operations through a rigorous and favorable regulatory system. Greater access to ISRO infrastructure, satellite data, facilities, scientific and technological resources, and other space assets would promote the socio-economic utilization of India’s space resources and expand space-based activities.

Significance of Indian Space Laws

In terms of launching prowess, India’s transition from reliance to self-sufficiency might make it the world’s launch pad. Other governments and multinational corporations have entered into official agreements with India to help them in their different space initiatives and launch satellites for them due to India’s cost-effective space programs. As a result of the introduction of commercialization, domestic laws such as contract, transfer of property, stamp tax, registration, insurance, and, most crucially, intellectual property rights must be revised to account for space-related difficulties. India is currently going slowly toward enacting accurate space legislation. The Space Activities Bill 2017 has been developed and is currently awaiting Parliamentary approval. By permitting commercial and non-governmental organizations to participate in space exploration, this measure would encourage, support, and regulate space operations in India.⁵

A manufacturing flaw in a spacecraft leaves it vulnerable to cyber-attacks and/or monitoring, resulting in a loss of personal privacy and data. To guarantee that proper cyber security measures are in place, rules and regulations following data protection laws must be developed.

Awais Ahmed, CEO of Pixel, which raised $5 million in seed funding in August said “India has many advantages in space technology, Indian companies will spend less both in terms of manufacturing and operating costs as compared to US companies, we have an enormous talent pool of engineers that we can tap into, and the VC ecosystem is warming up.” The rising global worry over space debris has even reached the United States. India is embroiled in an international controversy over debris from an Indian satellite that fell on a Japanese hamlet as it retraced its path back to Earth. India has a definite obligation to pay compensation for damage induced by its space object on the surface of the Earth or to aircraft in flight as a party to the 1972 Convention on International Liability for Damage Caused by Space Objects.

Concluding Observations

Indian space science has a lot of potential in establishing a strong connection with India’s Economic growth by adopting effective measures and upcoming policies which are going to change the perspective of the world on India’s Space Laws. Resilience in the space law is all the more important to support the expansion of the Indian space sector and allow private companies to participate in making India a space powerhouse. In line with Articles 51 and 253 of the Indian Constitution, India must enact legislation that would not only enable public-private partnerships and quick technical growth but also accelerate indigenization and manufacturing within the country. Also, the introduction of the India Draft Space Law Policy will widen the scope of development by allowing for the issue of a non-transferable license to individuals involved in commercial space activities. It also specifies appropriate licensing systems, eligibility requirements, and license prices.

References

1. Department of Space, Indian Space Research Organisation. https://eproc.isro.gov.in/home.html
2. Satellite Communication Policy in India, 1997. https://www.isro.gov.in/sites/default/files/article-files/indias-space-policy-0/satcom-policy.pdf
3. Remote Sensing Data Policy, 2011.https://sarinlaw.com/wp-content/uploads/2020/10/Remote-Sensing-Data-Policy.pdf
4. Department of Space, Indian Space Research Organisation https://eproc.isro.gov.in/home.html
5. Department of Space, Government of India. https://prsindia.org/billtrack/draft-space-activities-bill-2017

Written by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.

Equivalent citations

1965 AIR 491, 1964 SCR (4) 576

Petitioner

The University of Mysore and Anr

Respondent

C. D. Govinda Rao and Anr

Date of Judgement

26/08/1963

Bench

Gajendragadkar, P.B., Subbarao, K., Wanchoo, K.N., Ayyangar, N. Rajagopala, Mudholkar, J.R.

FACTS OF THE CASE

The appeal was recorded by C. D. Govinda Rao, in the Mysore High Court under Art. 226 of the Constitution. C.D. Govinda Rao needed by that appeal, that a writ of quo warranto ought to be given, to call upon Anniah Gowda to show the authority under which he had the position of a Research Reader in English in the Central College, Bangalore. It was additionally implored that a writ of mandamus is allowed calling upon the University of Mysore to choose him as the Research Reader.

There were sure capabilities to be selected as the exploration peruser. The capabilities are:

1. A First or High Second Class Master’s Degree of an Indian University of an identical the capability of a Foreign University in the subject concerned;
2. A Research Degree of a Doctorate Standard or distributed work of an elevated requirement;
3. Ordinarily, a decade (at the very least five years regardless) experience of showing post-graduate classes and directing exploration on account of Professors and no less than five years’ insight of showing degree classes and free examination on account of Readers;
4. The information on the local language Kannada is considered as an alluring qualification. Inclination will be given to up-and-comers who have had insight in educating and association of examination and have additionally accomplished progressed research work (1). According to him, the arrangement of Anniah Gowda to the post of Research Reader was unlawful notwithstanding the endorsed capabilities and that he was able to be named to that post.

Hence, he needed that the arrangement of Anniah Gowda ought to be subdued. He in this way requested a writ to guide the University to designate him in that post.

ISSUES RAISED

Whether writs of mandamus and quo warranto can be given by the court?

DISPUTES RAISED

Mr. S. K. Venkataranga Iyengar, for the respondent, battled that the arrangement of Anniah Gowda was made in repudiation of the legal principles and statutes outlined by the college. He endeavored to contend that he had alluded to the legal principles and mandates in the High Court, in any case, sadly, the equivalent had not been referenced or examined in the judgment.

The court had painstakingly viewed as the oaths documented by both the gatherings in the current procedures and it had no delay in holding that at no stage did it seem to have been encouraged by the respondent under the watchful eye of the High Court that the sickness in the arrangement of Anniah Gowda continued from the way that the legal standards and laws made by the university had been contradicted.

The testimony documented by the respondent on the side of his request just portrayed the arrangement of Anniah Gowda as being illicit, and altogether added that the said arrangement and the disappointment the University to designate the respondent, were unlawful even with the endorsed capabilities, and these capabilities in the setting without a doubt alluded to the capabilities distributed in the warning by which the significant post had been promoted.

The court reviewed the four capabilities endorsed by the warning. The last one which connected with the information on the Kannada language was discovered not to be in question and was avoided concerning thought. The primary capability was that the candidate should have a First or a high Second-Class Master’s Degree of an Indian University or a comparable capability of an unfamiliar University in the subject concerned. Anniah Gowda got 50.2 percent marks in his Master’s Degree assessment.

It was encouraged by the respondent under the steady gaze of the High Court that when 50% is the base needed for getting a second class, it would be inactive to propose that an applicant, who acquires 50.2 percent, has gotten a high Second-Class Master’s Degree, thus the respondent argued that the main condition had not been fulfilled by the Anniah Gowda. The High Court has maintained this request. As to the subsequent capability, apparently, Anniah Gowda has gotten a degree of Master of Arts of the University of Durham. The High Court has held that as to this capability, assuming the Board took the view that the Gowda fulfilled that capability, it would not be only for the Court to vary from the assessment. At the end of the day, the High Court didn’t make a finding for the respondent concerning capability No. 2.

As to the third capability, the matter seems to have been bantered finally under the steady gaze of the High Court. The proof was driven by both the gatherings and the respondent genuinely questioning the case made by both the appellants that Gowda fulfilled the trial of five years’ insight of showing Degree classes. The High Court inspected this proof and eventually arrived at the resolution that however the material cited by the appellants on this point was inadmissible, it couldn’t make a finding for the respondent. In this association, the High Court has seriously condemned the direction of Anniah Gowda to which we will allude later.

Consequently, significantly the High Court chose to subdue the arrangement of Gowda on the ground that it was plain that he didn’t fulfill the main capability. In this association, the High Court has additionally condemned the report made by the Board and has seen that the Members of the Board didn’t seem to have applied their brains to the inquiry which they were called upon to consider.

In managing the case introduced before it by the respondent, the High Court had condemned the report made by the Board and had seen that the conditions unveiled by the report made it hard for the High Court to treat the suggestions made by the specialists with the regard that they by and large merit. Sheets of Appointments are assigned by the Universities and when suggestions made by them and the arrangements following on them, are tested under the steady gaze of courts, typically the court should do whatever it takes not to obstruct the feelings communicated by the specialists. There is no charge about mala fide against the specialists who established the current Board.

The analysis made by the High Court against the report made by the Board implied that the High Court believed that the Board was in the place of a chief power, giving a leader fiat, or was behaving like a semi-legal counsel, concluding questions alluded to it for its choices. In managing objections made by residents concerning arrangements made by scholastic bodies, similar to the Universities, such a methodology would not be sensible or suitable.

Indeed, in giving the writ, the High Court has mentioned a specific observable fact that shows that the High Court applied tests that could authentically be applied on account of the writ of certiorari. In the judgment, it has been seen that the blunder for this situation is without a doubt a manifest mistake. That is a thought which is more pertinent and applicable in a system for a writ of certiorari.

The High Court ought to have considered the issue of whether the arrangement made by the Chancellor was against any legal or restricting guideline or mandate. In doing as such, the High Court ought to have displayed due respect to the assessment communicated by the Board and its proposals which the Chancellor has acted. In this association, the High Court had neglected to see one extremely critical truth that when the Board considered the cases of the individual candidates, it inspected them cautiously and arrived at the resolution that not a single one of them should have been delegated as a Professor in the University.

These proposals made by the Board show that they considered the applicable factors cautiously and eventually reached the resolution that Anniah Gowda ought to be suggested for the post of Reader. Hence, the court fulfilled that the analysis made by the High Court against the Board and its considerations isn’t legitimized.

JUDGMENT

The requests were permitted and the request passed by the High Court was saved. The writ request recorded by the respondent was excused with costs all through. It was held that there will be one bunch of hearing charges in both the requests documented by the two appellants.

CASE COMMENT

The writ of quo warranto continuing assistance in managing the cost of a legal cure by which any individual, who holds a free considerable public office or establishment or freedom, is called upon to show by what right he holds the said office, establishment or freedom, so his title to it could still up in the air, and if the finding is that the holder of the workplace has no title, he would be removed from that office by legal request.

This truly intends that at the end of the day, by the technique of quo warranto, the legal executive is provided with the ability to control the leader from arranging public office against the endorsed law. It likewise assists with shielding a resident from being denied of public office to which he has a right. These procedures likewise will quite often shield people in general from usurpers of public office, who may be permitted to proceed either with the intrigue of the
Executive or because of its indifference.

It will, accordingly, be seen that an individual needs to fulfill the court, that the work being referred to is a public office and is held by a usurper without legitimate authority before the person can adequately guarantee a writ of quo warranto. He additionally needs to demonstrate that it would unavoidably prompt the inquiry regarding whether the arrangement of the supposed usurper has been made as per law or not.

Written by Sara Agrawal student at Sinhgad Law College, Pune.

Equivalent Citation

Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1

Bench

Sanjay Kishan Kaul, Dhananjaya Y. Chandrachud, R. K. Agrawal, J. S. Khehar, S. A. Bobde, S. A. Nazeer, R. K. Agrawal, J. Chelameswar, A.M. Sapre JJ

Decided on

24th  August 2017

Relevant Act/ Section

Article 19,19(1)(a), 21 and 25

Brief Facts and Procedural History

The Government of India has launched a scheme called “Unique Identification for BPL Families.” For the initiative, a committee was also formed. The Committee suggested that a ‘Unique Identification Database’ be created for the project. The project will be divided into three phases, according to the decision. The Planning Commission of India then issued a notification on UIDAI in January 2009. (Unique Identification Authority of India). In the year 2010, the Planning Commission also approved the National Identification Authority of India Bill. The current case was filed by retired High Court Judge K.S. Puttaswamy, who is 91 years old, is against the Union of India, or the Government of India. The case was heard by a nine-judge Supreme Court bench that had been created specifically for the Constitution Bench. Following conflicting judgments from other Supreme Court benches, the special bench was constituted to assess whether the “right to privacy” was guaranteed as an independent basic right.

The case emphasized various concerns about the government’s Aadhaar program (a form of uniform biometrics-based identity card). In the near future, the government suggested that the above-mentioned plan become required for access to government services and benefits. Initially, the challenge was brought before a three-judge bench of the Supreme Court, claiming that the scheme invaded the “right to privacy” provided to Indian people by the Constitution. On account of the Union of India, the Attorney General disputed that the Indian Constitution does not give particular protections for the right to privacy. He based this on observations made at various times in the cases of M.P. Sharma vs. Satish Chandra (an eight-judge bench) and Kharak Singh vs. Uttar Pradesh (an eight-judge bench) (a five-judge bench). Following that, an eleven-judge panel determined that basic rights should not be regarded as separate, unrelated rights, upholding the dissenting opinion in the Kharak Singh case. This also acted as a precedent of following rulings by smaller benches of the Supreme Court which expressly recognized the right to privacy. Moreover, it was in this circumstance that a Constitution Bench was established, which found that a nine-judge bench should be established to assess whether the Constitution contained a fundamental right to privacy or not.

Finally, on August 24, 2017, the Supreme Court issued a landmark decision, declaring the right to privacy a Fundamental Right under Article 21 of the Indian Constitution.

Issues before the Court

• Whether the ‘right to privacy’ is a basic part of the right to life and personal liberty provided under Article 21 and also a part of the freedoms provided by Part III of the Constitution,
• And whether the judgment was taken in M P Sharma v Satish Chandra, District Magistrate, Delhi was right in the face of law?
• And was the decision taken in Kharak Singh v State of Uttar Pradesh correct in a legal sense?

The decision of the Court

On August 24, 2017, a nine-judge panel of the Supreme Court of India issued a major decision upholding the basic right to privacy guaranteed by Article 21 of India’s constitution. The Supreme Court’s historic nine-judge bench unanimously agreed that Article 21 of the Constitution secured the right to privacy as an essential aspect of the right to life and personal liberty. Privacy is a distinct and independent basic right granted by Article 21 of the Indian Constitution, according to the Supreme Court, which relied on six separate judgments. The decision’s most crucial element conveyed a broad interpretation of the right to privacy. It was clarified that the right to privacy is a broad right that covers the body and mind, including judgments, choices, information, and freedom, rather than narrow protection against physical derivation or an invasion right under Article 21. Privacy was found to be a predominant, enforceable, and multifaceted right under Part III of the Constitution. Overall, the Court overturned the judgments in M.P. Sharma and Kharak Singh because the latter found that the right to privacy was not a fundamental right guaranteed by the Constitution, and the Court found that the judgment in M.P. Sharma was legitimate because the Indian Constitution did not contain any limitations to the laws on search and seizure comparable to the Fourth Amendment in the United States Constitution. Nevertheless, the Court held that the Fourth Amendment was not a comprehensive concept of security and that the absence of a comparable assurance in the Constitution didn’t imply that India lacked a distinctive right to protection by any stretch of the imagination– and thus, the decision in M.P. Sharma was overturned. Kharak Singh’s biased perspective on close-to-home freedom was also invalidated by the Supreme Court. This viewpoint was referred to as the “storehouse” approach obtained from A.K. Gopalan by Justice D.Y. Chandrachud. The Court stated that after Maneka Gandhi, this method of seeing fundamental rights in watertight containers was abandoned.

The Court stated that after Maneka Gandhi, this method of seeing fundamental rights in watertight containers was abandoned. The Court also pointed out that the majority conclusion in Kharak Singh was internally inconsistent, as there was no legal basis for striking down domiciliary visits and police monitoring on any grounds other than privacy – a right they referred to in theory yet ruled to be unconstitutional. The Court further stated that subsequent cases maintaining the right to privacy after Kharak Singh should be viewed in light of the principles set forth in the opinion. The court also considered whether the right to life, the right to personal liberty, and the right to liberty established in Part III of the Constitution protects the right to privacy in affirmative instances. The court decided that privacy “is not an exclusive concept.” It dismissed the Attorney General’s position that the right to privacy should be ceded in exchange for the state’s welfare rights. Overall, while ruling that the right to privacy is not self-contained, the decision also outlined a legal survey standard that should be applied when the state intrudes on a person’s privacy.

It was decided that the right to privacy could be limited where an intrusion met the three-fold requirement of legality, which assumes the existence of law; need, which is defined in terms of a reliable state point; and proportionality, which ensures a reasonable relationship between the objects and the methods used to achieve them. The fourth point of this criteria was added by Justice S.K Kaul, who demanded “procedural assurances against maltreatment of such obstacles. Chelameswar, on the other hand, feels that the “overriding national interest” threshold should be applied only to privacy claims that demand “close inspection.”

The court found that the fair, just, and reasonable criteria of Article 21 should be applied to additional privacy issues and that whether or not to apply the “national priority” standard depends on the facts. The court also stressed the importance of sexual orientation in terms of privacy. It also examined the negative and positive aspects of the right to privacy, namely, that the state is not only prohibited from interfering with this right but is also required to take reasonable steps to protect personal privacy. Information privacy is part of the right to privacy, according to the ruling. Despite the fact that the court recognized the need for a data protection law, it left the burden of enacting legislation to Parliament.

References

Justice K.S.Puttaswamy (Retired). vs Union of India and Ors., 2017. | LawFoyer

Written by Vidushi Joshi student at UPES, Dehradun.

CITATION OF THE CASE

Writ Petition (civil) 202 of 1995

DATE OF CASE

December 12, 1996

APPELLANT

T.N. Godavarman Thirumulpad

RESPONDENT

Union of India & Ors

BENCH/JUDGES

Y.K. Sabharwal, Arijit Pasayat & S.H. Kapadia

STATUTES INVOLVED

Article 48A, Article 51A of The Constitution of India, Section 2 of forest conservation act.

INTRODUCTION

A writ request in the Supreme Court was recorded by T.N. Godavarman Thirumulpad in 1995, to shield the Nilgiris woods land from deforestation by unlawful lumber activity. The incredible meaning of point associated with these issues, relating to insurance and preservation of woodland in the entire region. The court framed the assessment that this issue of backwoods security required a profundity hearing to see every one of the perspectives connected with public timberland strategy. Notwithstanding, it thought that couple of vital headings were needed regarding certain parts of the woods law the country over. The court gave specific itemized bearings for feasible utilization of timberland and directed the observing and execution framework through the country at various state-level networks controlling the utilization, recording, and development of wood the nation over in a perspective on assurance of public woodlands. The court even goes through every one of the parts of National Forest strategy the woods preservation act exhaustively to secure the backwoods.

T.N. Godavarman has expected a fundamental part concerning the protection and protection of the environment. He has different public interest cases to his advantage which oversee protection contemplations and concurring with nature. Normal law is a space of public significance that has been seen with the help of various NGOs and private affiliations. The zenith court has expected the piece of a driving force in safeguarding the natural concerns by articulating different achievement choices. This has prompted the development of an unheard-of level of the rule that began with absolute liability. As of now, it consolidates thoughts, for example, polluter pays rule, conservative development, and judicious rules.

BACKGROUND OF THE CASE

At the point of convergence of the contention is an extremely huge task of the Uttar Pradesh government at Noida. According to the candidates, the endeavor is a “gigantic unapproved development”. The applicants express that innumerable trees were hacked down to clear the ground for the assignment. These trees outlined a “woodland” as the term was deciphered by this Court in its solicitation dated December 12, 1996, in T.N. Godavarman Thirumulkpad v. Association of India and Ors., (1997) 2 SCC 267 (1) and the action of the Uttar Pradesh Government in cleaving down a genuine woodland without the prior authorization of the Central Government and this Court, was in net encroachment of segment 2(ii) of the Forest (Conservation) Act, 1980. The Central Empowered Committee CEC on a thought about the overall large number of materials made available to it, including the report of the FSI, held that the endeavor site was not a forest area or a considered forest or woodlands like the district similar to the solicitation for SC, fundamentally, because the trees in the endeavor locale that were cleaved down for representing the improvements were established trees and not ordinarily evolved trees, and because the area was neither exhorted as “forest area” nor recorded as “forest area” in the Government record. The Court held that the endeavor site isn’t woodlands land and the improvement of the assignment without the previous assent from the Central Government doesn’t in any way go against segment 2 of the FC Act.

FACTS OF THE CASE

By T.N. Godavarman Thirumulpad v. Association of India, the Supreme Court left behind the common occupation of an interpreter of the law. This milestone case is generally called ‘the Forest Case in India’ This is because there was a legal violation of the established command when the Supreme Court accepted command over the inquiries of this case. It was concerning the control and oversight of the woods of India. T.N. Godavarman halted a writ claim in the year 1995 in the summit court of India. The central target of the writ demand was to safeguard and secure the woodland place where there is the Nilgiris as it was mishandled through deforestation by unlawful lumber works out. The key component of this case was that it was to save the backwoods. It was trailed by a gathering at full length concerning the National Forest Policy.

This was seen as break orientation that was required in the material issue. This was to look at the necessity and execution of woodland laws and rules inside the subcontinent of India. The Supreme Court provided requests to use the timberland land and its resources financially. Moreover, told that it’s everything except a self-checking part at the same time. The court communicated that an execution system should be molded at the regional and state level. This
was to control the transportation of wood.

Godavarman Thirumulpad had numerous pundits. It deals with the regular honors of all and the intercession of the court. Just intercession or the encroachments of the court can be rehearsed exactly when they are required. Legitimate interventions happen when the state misses the mark in its commitment to work. The most prominent interventions made by the court recollect the blacklist for the tree felling, direct wood adventures, the forbiddance of mining in Kudremukh, and with Aravallis, the rule of sawmills. Most of the striking judgment on woods organization is the burden of obligation known as Present Value for the utilization of backwoods land for non-officer administration purposes, the underpinning of the Compensatory Afforestation Fund, or CAMPA, and henceforth the course of action of searching for previous support from the Supreme Court for any business activity. Subsequently, exclusive’s work to stop timberland annihilation in Gudalur incited a watershed legal intervention, which has fundamentally added to the assurance of forests. Godavarman Thirumulpad will remain inside legitimate history.

ISSUE RAISED BEFORE THE COURT

• Whether the new translation for Section 2 of the Forest Conservation Act and forest land is violative and regardless of whether the utilization of timber for business purposes is justified?
• The issue is regarding the determination of the environment and majorly damage to the forest which were wealthy in the natural resources begin with the expanding the needs of individual emerging because of a move to industrialization, migration to an urban area, need more land for cultivation housing and other purposes.

JUDGMENT

It is a fundamental circumstance of the environment especially of the climate. T.N. Godavaraman, understanding the circumstance of the backwoods and being a careful inhabitant of India, couldn’t as yet keep away from relying upon defying such illegal practices. He went to the Indian lawful leader searching for some help from the Supreme Court.

On 12 December 1996, a seat drove by Chief Justice J.S. Verma passed an interval request organizing that tree-felling and non-ranger service administration development in forestland the country over be ended. The way-breaking request redescribed the meaning of forestland and loosened up protection to all spaces with regular woods no matter what their proprietorship. It set out that ‘timberlands’ will be seen by its promise reference meaning and the arrangement of the Forest (Conservation) Act 1980, will apply to all thickly lush areas. States were composed to frame ace chambers to recognize backwoods as characterized and record reports. Senior Counsel Harish Salve was assigned Amicus Curie to help the Supreme Court. What followed was amazing. A couple of northeastern States, where backwoods were being assaulted by groups and unregulated sawmills worked straightforwardly, were shaken. A limitation on the advancement of illicit lumber was constrained. 94 rail route trucks of wrongfully sent wood were seized. At that stage, even the Supreme Court no doubt didn’t anticipate that the matter would be saved open for close to 20 years. However, luckily, it is alluded to in the set-up rule as the Writ of continuing with mandamus. More than 1,000 Interlocutory Applications have since been recorded, covering a scope of issues concerning boondocks protection, such as mining, tree-felling, the leaders of Protected Areas, and forest encroachment.

Considering the rising number of IAs and u thought of the issues being referred to, the court requested the constitution of a specialist body, the Central Empowered Committee (CEC), in May 2002. In September 2002 it was educated as a lawful leading body of legal administrators with wide-going powers to oversee impending IAs, hear new applications, and pass orders in consonance with those of the Supreme Court. Another perspective in the association of forests had been made. The omnibus backwoods case is at this point open yet under unique hearing any longer into its 20th year. The CEC continues, yet not as a legitimate warning gathering.

CONCLUSION

This case included the necessity for staying aware of and anticipating timberland helpfulness. It works with the assurance of organic variety. Similarly, safeguarding and getting biological conditions were discussed for the present circumstance. The consequence of the T.N. Godavarman v. Association of India and Ors notices the diminishing and the finish of different wood ventures. It moreover settled natural mindfulness among the occupants of India. It refused deforestation stringently. This case has gone probably as an improvement in environmental safeguarding and insurance for an enormous scope. The essential responsibility of this case was the powerful and smooth movement of various laws in doing natural activities.

References

1. T.N. Godavarman Thirumulpad vs Union Of India & Ors on 6 July, 2011. indiankanoon.org. [Online] https://indiankanoon.org/doc/1725193/.

Written by Sara Agrawal student at Sinhgad Law College, Pune.