Lawpedia

Traditional Knowledge

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I. Traditional Knowledge

“IN OUR DECISIONS WE MUST TAKE INTO

ACCOUNT THE IMPACTS ON THE NEXT SEVEN GENERATIONS.”

First Nations Oral Tradition

The estimated 370 million indigenous peoples that live across 70 countries worldwide are the holders of unique cultures, languages and knowledge systems. Indigenous peoples have inhabited their territories with a historical continuity and have developed a unique relationship to their lands, which forms the very basis of their cultures. Most indigenous peoples have been subject to experiences of subjugation, marginalization, dispossession, exclusion or discrimination by the mainstream societies that became dominant through conquest, occupation or settlement. However indigenous peoples have managed to retain distinct social, cultural and political characteristics, in particular, they have maintained a wealth of traditional knowledge. Traditional knowledge is generated and transmitted in a tradition-based context and forms an intrinsic part of a peoples’ self-identity. It has been accumulated over many generations and is constantly adapting to changing environments. Given the diversity of indigenous cultures, a variety of traditional knowledge exists, covering a wide range of fields such as agricultural, medicinal and ecological knowledge.

Nevertheless, some common characteristics of traditional knowledge can be identified. In the past, indigenous peoples’ traditional knowledge has been considered to be freely exploitable. Traditional knowledge has been appropriated without the consent of the knowledge holders and without sharing the benefits arising out of its use. In the worst case, the original holders of traditional knowledge have been excluded from its use by third parties claiming intellectual property rights over traditional knowledge. In the field of biodiversity-related traditional knowledge, this phenomenon has entered the international stage under the key word “biopiracy”. Traditional knowledge is further threatened by the destruction of the natural environment, which in turn endangers indigenous cultures and their traditional knowledge embedded therein; the assimilation of indigenous peoples into mainstream culture and the replacement of traditional knowledge by Western science, the loss of indigenous languages and the lack of interest in the continued use of traditional knowledge. Growing appreciation of the value of traditional knowledge, the need to address the causes of its loss and progressing recognition of indigenous rights has resulted in international discussions on the protection of traditional knowledge. Since several years, a number of international bodies have been discussing the protection of traditional knowledge in the framework of their specific mandates and interests, including environmental law, intellectual property law, human rights law and trade law. However, due to the complexity of the issue and the conflicting interests of the stakeholders involved, no consensus for an effective legally binding instrument has been reached so far.

II. MEANING OF TRADITIONAL KNOWLEDGE

Traditional knowledge has been discussed in several international fora, no consensus on an internationally acceptable definition has been reached so far, in particular there is no legal definition of the term in the CBD[1].

The Secretariat of the CBD refers to traditional knowledge as;

“the knowledge, innovations and practices of indigenous and local communities around the world. Developed from experience gained over the centuries and adapted to the local culture and environment, traditional knowledge is transmitted orally from generation to generation. It tends to be collectively owned and takes the form of stories, songs, folklore, proverbs, cultural values, beliefs, rituals, community laws, local language, and agricultural practices, including the development of plant species and animal breeds. Some times it is referred to as an oral traditional for it is practiced, sung, danced, painted, carved, chanted and performed down through millennia. Traditional knowledge is mainly of a practical nature, particularly in such fields as agriculture, fisheries, health, horticulture, forestry and environmental management in general”.

WIPO[2] acknowledges the diversity of traditional knowledge, stakeholders and policy interests and therefore uses a ‘working concept’ instead of an exhaustive definition:

“ ‘traditional knowledge’ … refers to tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields.”

The knowledge is either hold by individuals, by groups or by the people as a whole, while the ownership of the knowledge however is usually within the collective and regulated by customary law. Traditional knowledge is transmitted mostly orally from generation to generation and is “not static; it evolves and generates new information as a result of improvements or adaptation to changing circumstances”. These formal characteristics focus on the context, method and qualities of traditional knowledge instead of its actual content, which covers “fields such as medicine, food and agriculture, environmental management and biodiversity conservation, nutrition and cultural objects”.

III. PROTECTION OF TRADITIONAL KNOWLEDGE AT INTERNATIONAL LEVEL:

Traditional knowledge of indigenous peoples is a multifaceted issue that touches upon a number of different areas of law, including environmental law, intellectual property rights and trade law and indigenous rights. Accordingly, traditional knowledge is being discussed in numerous international fora that each have different mandates and interests and therefore concentrate on different aspects of traditional knowledge.

1. Universal Declaration of Human Rights (1948)

The Universal Declaration of Human Rights (UDHR) establishes the right to the protection of moral interests and materials deriving from any scientific, literary or artistic production. The UDHR is not a binding document, but it is a foundational document for the United Nations and for the two 1966 Covenants, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.

Although the UDHR does not address intellectual property rights, Article 27 [3] of the UDHR recognizes the "moral and material interests" of authors and inventors and the right of the public “to enjoy the arts and to share in scientific advancement and its benefits.” This article expresses the challenge of balancing private intellectual property rights and a vibrant public domain.

2. International Covenant on Economic, Social and Cultural Rights (1966)

The International Covenant on Economic, Social and Cultural Rights (ICESCR) establishes a right to the protection of the moral and material interests resulting from any scientific, literary or artistic production. ICESCR has 160 parties, 69 of which are signatories. In conjunction with the 1948 Universal Declaration of Human Rights, and recognizing the binding nature of the treaty upon its signatories, the ICESCR can be interpreted as guaranteeing intellectual property rights as a human right. In 2005, the Committee on Economic, Social and Cultural Rights (CESCR) commented on Article 15[4] of the ICESCR, expanding it to protect indigenous groups' expressions of cultural heritage. CESCR calls upon signatories to adopt protective measures that "recognize, register and protect the individual or collective authorship of indigenous peoples under national intellectual property rights regimes and should prevent the unauthorized use of scientific, literary and artistic productions of indigenous peoples by third parties."

3. International Covenant on Civil and Political Rights (1966)

The International Covenant on Civil and Political Rights (ICCPR) recognizes the self determination of minority groups and their right to control their culture. The ICCPR has 165 parties, 72 of which are signatories. Although the ICCPR is silent on most cultural and intellectual property rights issues, considered in conjunction with the 1966 International Covenant on Economic, Social and Cultural Rights and the 1948 Universal Declaration of Human Rights, the ICCPR can be viewed as establishing intellectual property rights as human rights.

Article 1

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 27

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

4. World Intellectual Property Organization, 1967

WIPO is a specialized agency of the United Nations established by the WIPO Convention in 1967 and mandated to promote the protection of intellectual property throughout the world through cooperation among states and in collaboration with other international organizations. WIPO currently has 184 member states and administers international treaties. It provides a forum for international policy debate and development of legal mechanisms and practical tools concerning the protection of traditional knowledge and traditional cultural expressions against misappropriation and misuse, and the intellectual property aspects of access to and benefit-sharing in genetic resources.

WIPO’s work on traditional cultural expressions began in 1978 in cooperation with the United Nations Educational, Scientific and Cultural Organization UNESCO, which 1982 resulted in the Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions.

In 1998 and 1999, WIPO consulted a wide range of stakeholders in twenty-eight countries, including indigenous peoples, non-governmental organizations, governmental representatives, academics and the private sector, in order to identify the intellectual property needs and expectations of the holders of traditional knowledge and cultural expressions. Within the several WIPO bodies addressing traditional knowledge, the Intergovernmental Committee on Intellectual Property and Genetic Resources,

Traditional Knowledge and Folklore (IGC) is of primary importance and shall be illustrated below.

Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore

Following the WIPO fact-finding missions in 1998-1999, WIPO recognized that traditional knowledge cuts across the conventional branches of intellectual property law and would therefore not fit into the existing WIPO bodies. Thus, the WIPO General Assembly in 2000 established the IGC in order to discuss intellectual property issues that arise in the context of access to genetic resources and benefit sharing; the protection of traditional knowledge, innovations and creativity, whether or not associated with those resources; and the protection of expressions of folklore, including handicrafts.

The work of the IGC has resulted in the development of non-formal Draft Provisions for the protection of traditional knowledge against misappropriation and misuse and suggesting possible international objectives and principles.

The Draft Provisions have the following objectives:

· to recognize value; to promote respect;

· to meet the actual needs of communities;

· to prevent the misappropriation of traditional cultural expressions/expressions of folklore;

· to empower communities;

· to support customary practices and community cooperation; to contribute to safeguarding traditional cultures;

· to encourage community innovation and creativity;

· to promote intellectual and artistic freedom, research and cultural exchange on equitable terms; to contribute to cultural diversity;

· to promote community development and legitimate trading activities;

· to preclude unauthorized IP rights and to enhance certainty, transparency and mutual confidence.

5. Berne Convention for the Protection of Literary and Artistic Works (1979)

Although the Berne Convention does not mention traditional knowledge, Article 15(4)[5] can be interpreted to leave to the discretion of each member country how (if at all) to protect TCEs.

6. ILO Convention 169 on Indigenous and Tribal People (1989)

The International Labor Organization, a special agency under the auspices of the UN, was the first international organization to attempt to define indigenous populations and to declare the rights of such populations. ILO Convention No. 169 replaced ILO Indigenous and Tribal Populations Convention No. 107 (1957) that had been ratified by six African States., the ILO and the African Commission on Human and Peoples’ Rights view this instrument as an inspiration and a reflection of a trend towards the protection of indigenous rights globally and in Africa.

The 169 Convention focuses on indigenous peoples’ rights to control their own institution, economic development, customs and belief systems. It applies to "tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations[6]" and to "peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions."

The Convention does not mention intellectual property rights, but seeks to protect indignous culture and recognizes the collective ownership that characterizes many indigenous populations.[7]

Article 5

1. the social, cultural, religious and spiritual values and practices of these peoples shall be recognised and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals;

2. the integrity of the values, practices and institutions of these peoples shall be respected;

3. policies aimed at mitigating the difficulties experienced by these peoples in facing new conditions of life and work shall be adopted, with the participation and co-operation of the peoples affected.

7. Convention on Biological Diversity,1993

The CBD was negotiated in the framework of the United Nations Environment Programme and opened for signature at the Earth Summit in Rio de Janeiro in June 1992. It entered into force in December 1993 and currently has 191 parties. Inspired by the world’s community growing commitment to sustainable development, the convention seeks to tackle the loss of biodiversity “due to human activities that degrade or encroach on habitats, increase pollution, and contribute to climate change” and aims to achieve an ;

1. equitable balancing of the interests of developed and developing diversity,

2. the sustainable use of its components and

3. the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.

Unlike earlier multilateral environmental treaties that dealt with particular aspects of biodiversity, the convention is more comprehensive in its approach, covering all levels of biodiversity on a global scale as well as the sustainable use of its components and benefit-sharing and is therefore referred to as a framework convention. The convention’s substantive provisions cover amongst others general measures for conservation and sustainable use, in-situ and ex-situ conservation, sustainable use of components of biological diversity, incentive measures, research and training, public education and awareness, impact assessment and minimizing adverse impacts, access to genetic resources, access to and transfer of technology, exchange of information, technical and scientific cooperation, handling of biotechnology and distribution of its benefits and financial resources and mechanisms. Given the number of issues covered by the convention, its provisions are mostly of a general nature and expressed as overall goals that obligate parties to take measures on the national level. Furthermore, most substantive articles are weakened by additional phrases such as “as far as possible and as appropriate”.

The convention establishes an institutional framework for the further development of the convention and the elaboration or clarification of general provisions and the monitoring of its implementation. The three institutional bodies established by the convention itself are the Conference of the Parties (COP), the Subsidiary Body on Scientific, Technical and Technological Advice and the Secretariat. Further, the convention provides for a financial mechanism and the establishment of a clearinghouse mechanism for scientific and technical cooperation. The convention further enables parties to establish additional subsidiary bodies with a limited mandate and limited period of time. The current additional subsidiary bodies are the Working Group on Access and Benefit-Sharing (WG ABS), the Working Group on Article 8(j) (WG 8J), the Working Group on Protected Areas and the Working Group on the Review of Implementation of the Convention.

With regard to traditional knowledge and access and benefit-sharing, the COP and the two advisory bodies WG 8J[8] and WG ABS[9] are relevant and shall be illustrated below.

a. Conference of the Parties

The COP is the governing body of the convention that brings together the parties to the convention every two years, or as needed. Its function is to review the implementation of the convention and its development through the decisions it takes. Reflecting the breadth of issues that the convention covers, the agenda of the meetings of the COP is very wide-ranging, composed of thematic and cross-cutting issues. The COP has dealt with both access and benefit-sharing and traditional knowledge in several of its decisions.

b. Working Group on Article 8(j) and related provisions

The WG 8J was established in 1998 by the forth COP meeting in order to provide the COP with advice relating to the implementation of article 8(j). It gives special attention to the participation of indigenous peoples. The Working Group is composed of parties and observers, including, in particular, representatives of indigenous peoples.

The program of work, adopted by the fifth COP meeting in 2000, further encourages in its general principles the “full and effective participation of indigenous and local communities in all stages of the identification and implementation of the elements of the programme of work”. The participation of indigenous peoples is facilitated through a voluntary funding mechanism. One of the major outputs of the Working Group are the legally non-binding Guidelines for the conduct of cultural, environmental and social impact assessments regarding developments proposed to take place or which are likely to impact on sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities. The Working Group has further reported on the status and trends of traditional knowledge and is currently elaborating elements of sui generis systems for the protection of traditional knowledge, innovations and practices and elements of a code of ethical conduct to ensure respect for the cultural and intellectual heritage of indigenous and local communities, which could contribute to the negotiations of the international regime on access and benefit-sharing.

4. Trade-Related Aspects of Intellectual Property Rights (1994)

The 1994 TRIPS Agreement created a set of minimum intellectual property standards for all members of the World Trade Organization. Although the Agreement requires developing countries to increase many forms of intellectual property protection, it does not mention folklore or TCEs.

After the passage of TRIPS, the UN Human Rights Commission studied its implications for human rights. In 2000, the Commission, relying on that study, adopted Resolution 2000/7 on Intellectual Property and Human Rights. The Resolution notes that “actual or potential conflicts exist between the implementation of the TRIPS Agreement and the realization of economic, social and cultural rights in relation to . . . the reduction of communities’ (especially indigenous communities’) control over their own . . . natural resources and cultural values.”

It declares that “the implementation of the TRIPS Agreement does not adequately reflect the fundamental nature and indivisibility of all human rights, including . . . the right to self-determination. There are apparent conflicts between the intellectual property rights regime embodied in the TRIPS Agreement, on the one hand, and international human rights law, on the other.”

The Sub-Commission urged national governments, intergovernmental organizations, and civil society groups to give human rights primacy over the economic policies and agreements.

5. UNESCO Convention for the Safeguarding of Intangible Cultural Heritage (2003)

In 2001, UNESCO began drafting a definition of intangible cultural heritage and formulating provisions for its protection. In 2003, the resulting Convention was adopted and in 2006 it entered into force, 121 countries have ratified the Convention.

Article 1 lists the purposes of the Convention as "to safeguard the intangible cultural heritage; to ensure respect for the intangible cultural heritage of the communities, groups and individuals concerned; to raise awareness at the local, national and international levels of the importance of the intangible cultural heritage, and of ensuring mutual appreciation thereof; to provide for international cooperation and assistance." Although the Convention does not directly discuss intellectual property rights,

Article 3 notes that nothing in the Convention affects "the rights and obligations of States Parties deriving from any international instrument relating to intellectual property rights ... to which they are parties."

Article 11 provides Role of States Parties to:

a. take the necessary measures to ensure the safeguarding of the intangible cultural heritage present in its territory;

b. among the safeguarding measures referred to in Article 2, paragraph 3, identify and define the various elements of the intangible cultural heritage present in its territory, with the participation of communities, groups and relevant nongovernmental organizations.

6. Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005)

The Convention on the Protection and Promotion of the Diversity of Cultural Expressions builds off the earlier Universal Declaration on Cultural Diversity of (2001). Canada, France, Germany, Greece, Mexico, Monaco, Morocco, and Senegal and Francophone member states of UNESCO strongly supported the Convention. The United States opposed it. 104 countries have acceded to or ratified the Convention.

The Convention recognizes "the importance of traditional knowledge as a source of intangible and material wealth, and in particular the knowledge systems of indigenous peoples, and its positive contribution to sustainable development, as well as the need for its adequate protection and promotion." It seeks to “to reaffirm the sovereign rights of States to maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory”[10].

The Convention also seeks to mitigate the dilution of culture that follows from the movement of cultural goods and services across national borders.

The Convention mentions intellectual property rights once, by recognizing "the importance of intellectual property rights in sustaining those involved in cultural creativity."

The Convention is ambiguous, however, on how much protection to grant to TCEs. Article 6 lists the types of measures member states may adopt to protect and promote cultural diversity.

Subsection 2(g) allows “measures aimed at nurturing and supporting artists and others involved in the creation of cultural expressions”

Subsection 2(e) allows for measure that “promote the free exchange and circulation of . . . cultural expressions and cultural activities, goods and services.” Strong support for indigenous groups as creators of TCEs is not required by Article 7, as members states need only “endeavour to recognize the important contribution of artists, others involved in the creative process, cultural communities, and organizations that support their work, and their central role in nurturing the diversity of cultural expressions.”

7. United Nations Declaration on the Rights of Indigenous Peoples (2007)

The UN has been investigating the protection of minorities and indigenous populations since 1969. On 30 January 2007, the Assembly of the Union adopted a decision known as the UN Declaration on the rights of indigenous peoples. 143 countries voted in favor of the Declaration. The Declaration is the most comprehensive statement of the rights of indigenous peoples ever developed, giving prominence to collective rights to a degree unprecedented in international human rights law. The adoption of this instrument is the clearest indication yet that the international community is committing itself to the protection of the individual and collective rights of indigenous peoples. The key provisions follow.

I. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture. States shall provide effective mechanisms for prevention of, and redress for any action against such right[11].

II. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature and States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples[12]

III. Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.[13]

IV. Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.[14]

V. States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples' laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process[15].

VI. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.[16]

Etc.

IV. RATIONALE FOR THE PROTECTION OF TRADITIONAL KNOWLEDGE:

Protection systems are developed as an instrument for achieving certain objectives. The underlying reasons of policy objectives for the protection of traditional knowledge shall be discussed in line with the three broad categories preservation, protection and promotion.

a) Intrinsic value of traditional knowledge: Traditional knowledge should be preserved “because of its intrinsic value to its owners, to the world, and future generations”. Traditional knowledge forms an integral part of an indigenous people’s identity163,164 and therefore is of cultural and spiritual value.

b) Economic value of traditional knowledge: Traditional knowledge is not only valuable for the indigenous peoples holding it, but also benefits national economies in monetary terms and has important input on markets such as pharmaceuticals, cosmetics, agriculture, food additives, industrial enzymes, biopesticides, and personal care.

c) Conservation and sustainable use of biodiversity: In addition to traditional knowledge relating to specific components of biodiversity, indigenous peoples’ knowledge of ecosystem functions is relevant for the conservation and sustainable use of biodiversity.

d) Protection against misappropriation: A major reason for the protection of traditional knowledge is the issue of its misappropriation, also referred to as biopiracy. This term has not been clearly defined yet and has a heavy political aspect. Usually, biopiracy means the ;

· unauthorized appropriation of traditional knowledge or biological resources,

· appropriation of the same without equitably sharing the benefits arising from its use or

· the illegitimate granting of patents over traditional knowledge.

e) Promotion of use: As discussed above, traditional knowledge is not only of crucial value to an indigenous peoples identity and integrity, but also benefits human kind as such. Traditional knowledge should therefore be promoted “through its widest possible dissemination and use for the benefit of human kind”.

[1] Convention on Biological Diversity

[2] World Intellectual Property Organization, 1967

[3] Article 27

a) Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

b) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author

[4] Article 15

a) The States Parties to the present Covenant recognize the right of everyone:

1. To take part in cultural life;

2. To enjoy the benefits of scientific progress and its applications;

3. To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

b) The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.

c) The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

[5] In the case of unpublished works where the identity of the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union.

[6] Article4(1): Special measures shall be adopted as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned.

[7] Article 1

[8] Working group on Article 8(j)

[9] Working group on access and benefit sharing

[10] Article 1(h)

[11] Article 8

[12] Article11

[13] Article 12

[14] Article 25

[15] Article27

[16] Article 31

Hazardous Waste Management

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Hazardous Waste Management

A hazardous waste is waste that poses substantial or potential threats to public health or the environment. What determines whether it's a hazardous waste is it's: ignitability (i.e., flammable), reactivity, corrosiveness and toxicity. These wastes may be found in different physical states such as gaseous, liquids, or solids. Furthermore, a hazardous waste is a special type of waste because it cannot be disposed of by common means like other by-products of our everyday lives. Depending on the physical state of the waste, treatment and solidification processes might be available. In other cases, however, there is not much that can be done to prevent harm.

Hazardous waste management is a new concept for most of the Asian countries including India. The lack of technical and financial resources and the regulatory control for the management of hazardous wastes in the past had led to the unscientific disposal of hazardous wastes in India, which posed serious risks to human, animal and plant life.

As per the ideal industrial citing criteria in India, the industry should have enough land available within its premises for the treatment and disposal and or reuse/recycling of the wastes generated from it. However, very few industries in India own proper treatment and disposal facilities. Mostly the large-scale industries and a few medium-scale industries and none of the small-scale industries own the above facilities.

Environmental Laws in

India

India is the first country that has made constitutional provisions for protection and improvement of the environment. In the Directive Principles of State Policy of the Constitution, Article 48-A of Chapter IV enjoins the state to make endeavor for protection and improvement of the environment and for safeguarding the forest and wild life of the Country. In Article 51 A (g) of the Constitution, one of the fundamental duties of every citizen of India is to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures.

In order to manage hazardous waste (HW), mainly solids, semi-solid and other Industrial wastes which are not covered by the Water & Air Acts, and also to enable the authorities to control handling, treatment, transport and disposal of waste in an environmentally sound manner, Ministry of Environment & Forests (MoEF). Government of India notified the Hazardous Waste (Management & Handling) Rules (HWM Rules) on July 28, 1989 under the provisions of the Environment (Protection) Act, 1986 and was further amended in the year 2000 & 2003.

Environment Protection under Indian Constitution

a) The State's responsibility with regard to environmental protection has been laid down under Article 48-A[1] of our Constitution, which reads as follows:

"The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country".

b) Environmental protection is a fundamental duty of every citizen of this country under Article 51-A (g)[2] of our Constitution which reads as follows:

"It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures."

c) Article 21 of the Constitution is a fundamental right which reads as follows:

"No person shall be deprived of his life or personal liberty except according to procedure established by law."

CHAPTER 2

Regulatory Frame Work

HAZARDOUS WASTES (MANAGEMENT AND HANDLING) RULES 1989, UNDER ENVRONMENT PROTECTION ACT, 1986

The Government of India has promulgated the Hazardous Waste (Management & Handling) Rules in 1989 through the Ministry of Environment and Forests (MOEF) under the aegis of Environment (Protection) Act [E(P) Act], 1986. Under the HW (M&H) Rules, the hazardous wastes are divided into 18 categories. Moreover, the role and responsibilities of the waste generator, state/central pollution controls boards and state Government is clearly defined.[3]

HAZARDOUS WASTES (MANAGEMENT AND HANDLING) AMENDMENT RULES 2000 and 2003

These amendments enable to identify hazardous wastes by means of industrial processes and waste streams in Schedule I and also by way of concentrations of specified constituents of the hazardous waste in Schedule II. Categories of wastes banned for export and import have also been defined (Schedule-8) The procedure for registration of the recyclers/reprocesses with environmentally sound facilities for processing waste categories such as used lead acid batteries, non-ferrous metal and used oil as contained in schedule-4 and schedule-5 respectively has also been laid down. Further, separate Rules have also been notified in continuation of the above Rules for bio-medical wastes as well as used lead acid batteries.

WATER (Prevention and Control of Pollution) ACT 1974

The objectives of the Water (Prevention and Control of Pollution) Act are to provide for the Prevention and Control of Water Pollution and the maintenance or restoration of the wholesomeness of water for the establishment, with a view to carrying out the purposes aforesaid, of Boards for the prevention and control of water pollution, for conferring on and assigning to such Boards powers and functions relating thereto and for matters connected therewith.

AIR (Prevention and Control of Pollution) ACT 1981

The objective of this Act is to provide for the prevention, control and abatement of air pollution, for the establishment, with a view to carrying out the aforesaid purposes, of Boards, for conferring on and assigning to such Boards powers and functions relating thereto and for matters connected therewith.[4]

Other than HWM some Rules Pertaining to Hazardous Substances in India

Bio-Medical Wastes (Management and Handling) Rules, 1998

· Manufacture, Storage, Import of Hazardous Chemicals Rules, 1989

· Chemical Accidents (Emergency Planning, Preparedness and Response) Rules, 1996

· Manufacture Use, Import Export and Storage of Hazardous Micro Organisms or Genetically Engineered Cells Rules, 1989

· Municipal Solid Waste (Management and Handling) Rules, 2000

CHAPTER 3

The Basel Convention on hazardous wastes

Basel Convention and

India

The Basel Convention which was signed by India on 22 September 1992 sought to regulate the "garbage imperialism" or "toxic terrorism", as it was called, indulged in by the Organisation for the Economic Cooperation and Development (OECD) countries towards Non-OECD Countries. The Basel Convention envisaged that in the beginning of year 1998, there will be complete ban on exports of hazardous waste but it could not materialise for obvious reasons. Besides so many important clauses in the Basel Convention, the most important one is that the country which is importing hazardous waste should have facilities to dispose of the waste in an environmentally sound manner.

If any industry does not possess this facility, it has no right to continue its operation. The Basel Convention has to finally come out with the lists of banned wastes, where no import or export would be permitted and also the list where the transactions would be strictly regulated.

India is a Party to the Basel Convention on trans boundary movement of hazardous wastes. The basic objectives of the Basel Convention are for the control and reduction of trans boundary movements of hazardous and other wastes subject to the Convention, prevention and minimization of their generation, environmentally sound management of such wastes and for active promotion of the transfer and use of cleaner technologies.

As a party to the Convention, India is obliged to regulate and minimize the import of hazardous waste or other wastes for disposal or re-cycling and also to prohibit export of waste to parties, which have prohibited the import of such wastes. As a party India is also required to minimize generation of hazardous waste in the country taking into account social, technological and economic aspects. Further, hazardous waste generated in the country is also required to be managed in an environmentally sound manner. India, as a party, can prevent the import of hazardous waste or other waste if it has reason to believe that the waste in question will not be managed in an environmentally sound manner.

CHAPTER 4

Present Hazardous Waste Generation Scenario

Present Hazardous Waste Generation in India

The amount of hazardous waste generated in this country is quite small in comparison to that of the USA, where as much as 275 million tones of hazardous waste was generated annually. However, considering the fragile ecosystem that India has (The State of India's Environment, Part I, National Overview, The Citizens Fifth Report, Centre for Science & Environment, 1999), even this low quantum of hazardous wastes (around 4.4 million MTA) can cause considerable damage to natural resources if untreated before releases. India's fragile ecosystem could be seen from the following:

1. Air pollution in Indian cities is highest amongst the world

2. Over 70% of the country's surface water sources are polluted and, in large stretches of major rivers, water is not even fit for bathing

3. India has among the lowest per capita availability of forests in the world, which is 0.11 ha as compared to 0.50 ha in Thailand and 0.8 ha in China

The security of Indian fragile ecosystem, therefore, warrants sustainable consumption of natural resources and protection from environmental degradation.

Estimates of OECD about Hazardous Waste Generation in India

The hazardous waste generated in the country per annum is estimated to be around 4.4 million tones while as per the estimates of Organization for Economic Cooperation and Development (OECD) derived from correlating hazardous waste generation and economic activities, nearly five million tones of hazardous waste are being produced in the country annually. This estimate of around 4.4 million MTA is based on the 18 categories of wastes which appeared in the HWM Rules first published in 1989.Out of this, 38.3% is recyclable, 4.3% is incinerable and the remaining 57.4% is disposable in secured landfills. Twelve States of the country ( Maharashtra, Gujarat, Tamil Nadu, Orissa, Madhya Pradesh, Assam, Uttar Pradesh, West Bengal, Kerala, Andhra Pradesh, Karnataka and Rajasthan) account for 97% of total hazardous waste generation. The top four waste generating states are Maharashtra, Gujarat, Andhra Pradesh and Tamil Nadu. On the other hand, states such as Himachal Pradesh, Jammu & Kashmir, all the North Eastern States excepting Assam generate less than 20,000 MT per annum. Given the wide variations in quantity and nature of waste generated across states and union territories (UTs) and also considering the wide variations in climatic as well as hydro-geological conditions in different regions of the country, the approach to waste management has to be essentially state-specific.

As a result, the total quantum of waste generated as well as its composition in terms of landfillable, incinerable etc. would undergo substantial changes. Nevertheless, the geographical distribution of waste generated and its distribution amongst the states is unlikely to undergo major changes.

Significance of SMEs Industrial Output and Hazardous Waste Generation

Nearly fifty percent of the total industrial output in India is contributed by the SMEs. They also account for 60 to 65 percent of the total industrial pollution. However, most of these industries generate hazardous wastes, which find their way uncontrolled into the environment. According to the National Productivity Council, New Delhi (India), there are more than 3 million small and medium scale industries, which are spread throughout the country in the form of clusters/industrial estates. SMEs in India cannot afford to adopt and maintain adequate hazardous waste treatment and disposal technologies. In the absence of common disposal facilities, the waste generators have been accorded temporary permission to store waste in their premises except in areas serviced by common facilities that have come up in the States of Gujarat, Maharashtra and Andhra Pradesh (where storage period should not exceed for more than 90 days).

CHAPTER 5

Supreme Court Interventions on non-implementation of HWM Rules

Petition complaining the violation of fundamental rights[5]

Though the HWM Rules came into existence in 1989, Rules they were never implemented in letter and spirit. The non-implementation resulted in indiscriminate & illegal dumping of hazardous waste on land. Due to alarming situation created by illegal dumping of hazardous waste, its generation and serious and irreversible damage as a result thereof to the environment, flora and fauna, health of animals and human beings, a petitioner approached the Supreme Court under Article 32 complaining of violation of Article 14 and 21 of the Constitution of India. The petitioner has, inter alia, relied upon the Basel Convention which was signed by India on15th March, 1990 and ratified on24th June, 1992. The ratification of Basel Convention by India shows the commitment of the country to solve the problem on the principles and basis stated in the said document.

The HWM Rules have been amended twice (2000 & 2003) during pendency of this petition, the latest amendment being on23rd May, 2003.

Considering the magnitude of the problem and the extent of hazardous waste generated, this Court issued notices to all the State Governments, Central Pollution Control Board and State Pollution Control Boards, Pollution Control Committees in the Union Territory, so as to identify the problem, and the extent of such waste, availability of the disposal sites and various other aspects relevant to minimizing the generation, its proper handling and disposal with a view to safeguard the environment.

Orders of the Supreme Court prior to this petition

In Rural Litigation and Entitlement Kendra v. State of U.P., the Court ordered the closure of certain lime stone quarries on the ground that there were serious deficiencies regarding safety and hazards in them. The Court had appointed a committee for the purpose of inspecting certain lime stone-quarries. The Committee had suggested the closure of certain categories of stone quarries having regard to adverse impact of mining operations therein. Large scale pollution was caused by lime stone quarries adversely affecting the safety and health of the people living in the area.

In M. C. Mehta v. Union of India (popularly known as ‘Shriram Food and Fertilizer case’) the Supreme Court directed the company manufacturing hazardous and lethal chemicals and gases posing danger to health and life of workmen and people living in its neighborhood, to take all necessary safety measures before reopening the plant. There was a leakage of Chlorine gas from the plant resulting in death of one person and causing hardships to workers and residents of the locality. This was due to the negligence of the management in maintenance and operation of the caustic chlorine plant of the Company. The matter was brought before the Court through a Public Interest Litigation. The management was directed to deposit a sum of Rs. 20 lacs by way of security for payment of compensation claims of the victims of Oleum gas leak with the Registrar of the Court. In addition, a bank guarantee for a sum of 15 lacs was also directed to be deposited which shall be encashed in case of any escape of Chlorine gas within a period of three years from the date of the judgment resulting in death or injury to any workman or any person living in the vicinity. Subject of these conditions the Court allowed the partial reopening of the plant.

In M.C. Mehta v. Union of India (popularly known as ‘Ganga Pollution Case’), the petitioner brought a Public Interest Litigation against Ganga water pollution requiring the Court to issue appropriate directions for the prevention of Ganga water pollution. He claimed that although Parliament and the State Legislatures have passed several laws imposing duties on the Central and State Boards constituted under the Water (Prevention and Control of Pollution) Act and the municipalities under the U.P. Nagar Mahapalika Adhiniyam, they have just remained on paper and no proper action had been taken pursuant thereto. The Supreme Court held that the petitioner although not a riparian owner (living on the river side) was entitled to move the Court for the enforcement of various statutory provisions which impose duties on the municipal and other authorities. He is a person interested in protecting the lives of the people who make use of the Ganga water. The nuisance caused by the pollution of the river Ganga is a public nuisance which is wide spread and affecting the lives of large number of persons and therefore any particular person can take proceedings to stop it as distinct from the community at large.

In another case in M.C. Mehta v. Union of India (1996) the Supreme Court ordered the shifting of 168 hazardous industries operating in Delhi as they were causing danger to the ecology and directed that they be reallocated lands to the National Capital Region as provided in the Master Plan for Delhi. The Court directed these industries to close down with effect from 30.11.1996.

Likewise, in Council for Enviro-legal Action v. Union of India the Court issued appropriate orders and directions for implementing and enforcing the laws to protect ecology. The petition was filed by a registered voluntary organization working for the cause of environmental protection in India as a public interest litigation complaining ecological degradation in coastal areas. It was contended that the Government was not implementing its own Notification which was issued to regulate activities in the said zone. It was said that there was blatant violation of this Notification and industries were being set up causing serious damage to the environment and ecology of that area. It held that the matter be raised before the concerned State High Courts which shall issue necessary orders or directions.

In Vellore Citizen’s Welfare Forum v. Union of India the petitioner, Vellore Citizen’s Welfare Forum, filed a writ petition by of public interest litigation drawing the attention of the Court towards the pollution caused by enormous discharge of untreated effluent by the tanneries and other industries in the State of Tamil Nadu. It was said that the tanneries are discharging untreated affluent into agricultural fields. Waterways, Open lands, and rivers rendering the river water unfit for human consumption. Contaminating the subsoil water and had spoiled the physico-chemical properties of the soil making it unfit for agricultural purposes. The Supreme Court held that such industries though are of vital importance to the country's development but they cannot be allowed to destroy the ecology, degrade the environment and pose a health hazard and cannot be permitted to continue their operation unless they set up pollution control devices.

In Vellore Citizen’s Welfare Forum v. Union of India, Kuldip Singh J., who delivered the judgment on behalf of the Court, held that while such industries are of vital importance for the country’s progress as they generate foreign exchange and provides employment avenues, but having regard to pollution caused by him, principle of "Sustainable development" has ' to be adopted as a balancing concept between ecology and development. His Lordship held that the "precautionary principle” and the "Polluter Pays" Principle, are essential feature of "sustainable development" and has to be adopted. Remediation of the damaged environment is part of the process of sustainable development and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology. "The Precautionary Principle" and the "Polluter Pays" principle the Court held, have been accepted as part of the law of the land. Art. 21 of the Constitution guarantee protection of life and personal liberty, Articles 47, 48A and 51A (g) from the Constitutional mandate to protect and improve the environment. Apart from the constitutional mandate there are number of legislations on the subject which impose duty on the governments to precept ecology and environmental pollution. 'The Court directed the closure of these industries unless they install pollution control, devices. All the tanneries are required to obtain the consent of the concerned Board for further operation with effect from Dec. I5, 1996. The Court imposed pollution fine of Rs. 10,000 on each industries. The money shall be deposited in the "Environmental Protection Fund" and shall be utilized for compensating the affected persons and also for restoring the damaged environment. The pollution fine shall be recovered as arrears of land revenue. The tanneries which fail to deposit the amount shall also be liable to the contempt of Court. The Court suggested for constituting a Special Bench." "Green Bench" of the Madras High Court to deal with these and other environmental cases as they are in better position to monitor these matters.

Order of the Supreme Court on October 14, 2003[6]

On the basis of the recommendations of High Powered Committee, Supreme Court had passed an order on October 14, 2003.The legal principles on which the order is based are:

1. In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.

2. Environmental concerns have been placed at same pedestal as human rights concerns, both being traced to Article 21 of the Constitution of India. The rights to information and community participation for protection of environment and human health are also rights which flow from Article 21. The Government and authorities have thus to motivate the public participation. These well-shrined principles have been kept in view by the Court while examining and determining various aspect and facets of the problems in issue and the permissible remedies

3. Applicability of the precautionary principle and polluter pays principle, which are part of the concept of sustainable development, is to be ensured in all decision making processes

At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided."

CHAPTER 6 Compliances

Ministry of Environment and Forests (MOEF)

The MOEF is the focal point in the Government of India for all matters relating to the environment. The directions sought for by the petitioner to which MOEF has agreed shall be implemented in letter and spirit. Highlights of the order include certain compliances on the part of Ministry of Environment and Forests (MOEF) and other ministries of the Central Government, Central and State Pollution Control Boards and Pollution Control Committees. The highlights and compliances are summarized as under:

Inter-sectoral coordination

The implementation wherever it is to be done by the MOEF, should be done forthwith and wherever it is required to be done by any other Ministry or Authority or Agency, the Nodal Ministry/MOEF shall ensure that it be so implemented. As the Nodal Ministry, its first and foremost responsibility is to ensure coordination with all other Ministries that come into the picture. HPC discussions and studies show that there are major roles that have to be played by other Ministries as well.[7]

Consideration for zero import of hazardous waste

The import of 29 items has been prohibited under Schedule-8 of the HW Rules as amended in May, 2003 while the Basel Convention has banned 76 items. The Ministry of Environment and Forests is required to examine the remaining items. It is implicit that if more items are banned, the corresponding Notification shall be issued by the Central Government under Section 11 of the Customs Act[8]. The Court directs that, in addition to 29 items, the MOEF will take into consideration what has been stated under heading 'A' (Imported Hazardous Waste which need to be included in the HWM Rules and ban of other Wastes) in the directions sought for by the petitioner on the basis of the recommendation of HPC. Further, the Ministry should also examine the question of banning used edible oil, cow dung, plastic scrap used PVC in any form, pet bottles etc. which, though not covered by Basel Convention, have hazardous impacts in terms of the HPC Report. According to the recommendations of HPC, these items also deserve to be banned. The Ministry shall also examine any other item which may have similar hazardous impact.

Disposal of illegally imported wastes

By order dated 5th May, 1997, the Court directed that no import would be made or permitted by any authority or any person of any hazardous waste which is already banned under the Basel Convention or to be banned hereafter with effect from the date specified therein. The importers are directed to show cause why the consignment in question shall not be ordered to be re-exported or destroyed at their cost and why the amount spent on analysis in the laboratory (Rs.6.35 Lacs) be not recovered from them and why they should not be directed to make payment of compensation of Polluter Pays Principles and other action taken against them.

Research and development initiatives

The MOEF also has a responsibility to ensure that research and development is conducted on scientific and technological aspects relating to this area. The MOEF should also encourage industry and industrial associations to participate in research, particularly related to their specific areas of activity e.g. ETPs, CETPs, disposal facilities, clean and cleaner technologies, etc.

Sustainable development initiatives

The MOEF has to work closely with the Planning Commission in the area of sustainable development. The need for development programs to increase production, productivity and to create employment is well recognized. However, this cannot be at the cost of present and the future in terms of quality of life for society as a whole.

Testing Facility Creation

The MOEF must be encouraged to make use of the vast technical capabilities that exist in the country. This may be with CPCB, suitably strengthened and assigned necessary responsibilities. In addition, the State Pollution Control Boards must be equipped and staffed properly, as also laboratories coming under various scientific agencies in the country and in the private sector. The MOEF must ensure that adequate facilities are available at the gateway points in the country (e.g. Ports, ICDs, Customs areas) to make the first level measurements to aid decision-making; as also certified laboratories (whether these are in the public or the private sector) which can provide reports that are scientifically valid and credible. Increasingly, exports will have to be environmentally compliant suitably labeled and certified.

Location of Industrial Sites and Secured Landfills

The MoEF would consider the suggestion of HPC regarding development of National Policy for landfills sites. The suggestion is to the following effect:
In industrialized countries, the selection of sites for disposal facilities lies with the Government. In view of this, a national policy needs to be developed for locating such centralized/common TSDFs. The location of final disposal facilities should be based on the total quantity of hazardous waste generated in the individual State. For effective monitoring and an economically viable facility, it is important to locate a centralized facility within a distance of about 100 km. of the waste-generating units.

National Policy Document on Hazardous Waste

MoEF is directed to either itself or through the CPCB or any other agency draft a policy document on hazardous waste generation and its handling within the country. While examining this aspect, the following recommendations of the HPC would be kept in view:

The policy document should emphasize a commitment to the recycling of wastes and propose incentives for encouraging and supporting recycling. Industries must be given a clear message that they must show concrete and tangible results as far as prevention and reduction of wastes are concerned. If they do not, they should be made to pay a waste generation tax. The policy document should enunciate a doctrine of partnership between SPCBs, entrepreneur and other stakeholders like the community, which will be involved in monitoring, preventing and reducing hazardous waste generation.

CPCB, SPCBs and PCCs

All SPCBs/PCCs are required to implement the directions that may be issued by the Ministry of Environment and Forests (MoEF). The SPCBs are directed to produce a comprehensive report on illegal hazardous waste dump sites in their jurisdiction. Reports should be based on inspection, assessment of the size of the dump site, age, whether the dump site is passive or active and whether precautions have been taken to prevent damage to the environment. The SPCBs will and PCCs also take samples of the groundwater in the vicinity of the dump site at different point and prepare a report on contamination of the groundwater, if any, and if so, to what extent.
The SPCBs and PCCs are directed to draw up a plan with financial estimates for immediate measures that may be required to stop environmental damage. The CPCB shall issue guidelines to be followed by all concerned including SPCBs and PCCs and the operators of disposal sites for the proper functioning and upkeep of the said sites. Further, for effective implementation of the directions and to regulate the hazardous waste, it is necessary to strengthen the SPCBs and CPCB by providing them the requisite infrastructure and manpower so that they can issue the necessary guidelines to monitor the handling of hazardous wastes as suggested under Terms of Reference. The research done in this regard should be communicated by the CPCB to the SPCBs to form part of their decision-making process regarding absence of consents and authorizations. Implementation of Plastic Waste Recycling Rules, Battery Waste
MOEF is directed to ensure compliance of "Recycled Plastics, Plastics Manufacture and Usage Rules, 1999 and the "Batteries Management and Handling Rules, 2001". The Ministry shall issue directions to all Public Sector Institutions not to openly auction their hazardous wastes but only to those who are registered units having Environmentally Sound Technologies (EST).

Responsibilities of Ministries of Labour and Industry

The Court considered the suggestion of HPC under term of reference no. 4 relating to impact of hazardous waste on worker's health and directed the Ministry of Labour and Ministry of Industry to constitute a special committee to examine the matter and enumerate medical benefits which may be provided to the workers having regard to the occupational hazard as also keeping in view the question of health of the workers and the compensation which may have to be paid to them. The Court directed the Ministry of Labour and Ministry of Industry to constitute a special committee to examine the matter and enumerate medical benefits which may be provided to the workers having regard to the occupational hazard as also keeping in view the question of health of the workers and the compensation which may have to be paid to them. The Committee while examining the recommendations shall also keep in view the judgment of this Court in Consumer Education and Research Centre Vs. Union of India[9].

Responsibilities of the Central Government

The Export and Import Policy (Exim Policy) issued from time to time, under the Foreign Trade (Development and Regulations) Act, 1992, inter alia, sets out the goods, import whereof is prohibited. We direct the Central Government that the said policy shall also correspond with the Hazardous Waste Rules, as amended from time to time, which means that if import of any item is prohibited under Hazardous Waste Rules, it shall be reflected in the prevalent Exim Policy.

For design and setting up of disposal facility as provided in Rule 8-A of HW (M&H) Rules, the criteria for Hazardous Waste Landfills published by CPCB in February, 2001 and the Manual for Design, Construction & Quality Control of Liners and Covers for Hazardous Waste Landfills published in December 2002 shall be followed and adhered to. 89 sites were identified out of which 30 were notified. Out of 30, 11 common landfills are ready and operational - one in Maharashtra, one in Andhra Pradesh and nine in Gujarat and that some of these landfills are in accordance with the Criteria and Manual afore said. The steps are being taken to expedite the completion of the remaining landfills.

Under Article 9 the HPC has recommended that in order to deter any transboundary movement of hazardous wastes or other wastes, i.e. illegal traffic, the national/domestic legislation shall be enacted/ amended appropriately to prevent and punish illegal traffic. The Government is directed to examine the aspect and file a report.

CHAPTER7

Suggestions

Waste Avoidance and Waste Minimization

Given the difficulties in handling of hazardous wastes and the serious adverse impacts that result from improper management of such wastes, waste avoidance and minimization gather added significance. Such an assessment of the avenues for waste avoidance and minimization would naturally be industry-specific and product-specific. On priority, it would be necessary to identify industry sectors which continue to adopt out-dated and highly polluting technology generating significant quantities of hazardous wastes. For example the paper and pulp industry which continues with elemental chlorine based bleaching whereas there has been a major shift the world over to elemental chlorine-free bleaching. Similarly, the conversion of mercury cell based caustic soda manufacturing to membrane cell process would need to be expedited. In the petrochemicals, pesticides and dyes and dye intermediates sectors, product-wise opportunities available for recovery of resources such as solvents, other reagents and by-products as well as re-generation of spent catalysts have been well documented. This exercise needs to be followed up by setting up dedicated task forces under the guidance of concerned CSIR laboratories and such task forces could serve as an inter-face between industry associations and CSIR laboratories to carry the work forward for actual application in field conditions.

Recycling of Hazardous Waste

Recycling of non-ferrous metallic wastes such as zinc dross, brans dross, used lead acid batteries, copper oxide mill scale and used lubricating oil offer attractive options for resource recovery in an environmentally sound and techno-economically feasible manner.
At present, there are about 200 recyclers of non-ferrous metallic wastes/waste oil who are registered under the HWM Rules. Registrations have been granted based on their possessing facilities for environmentally sound re-processing and suitable facilities for disposal of wastes generated. However, but for a few exceptions, almost the entire recycling takes place in the small scale sector. As such, there are serious limitations on technology up gradation which would be necessary to ensure that re-processing is done as per guidelines evolved by the Basel Convention.
Despite the registration scheme for recyclers, the menace of recycling in the unorganized sector with all its attendant environmental and health hazards still continues. This underscores the importance of channelisation of wastes generated. While the Battery Rules, 2000 mandate return of used lead acid batteries, compliance remains unsatisfactory. It would be necessary to look into the causes thereof and devise suitable economic incentives such as advance recycling tax which is suitably structured to provide adequate incentive for the battery users to return used batteries to authorized dealers. Simultaneously, an organized drive would be necessary to break the nexus between scrap dealers, backyard smelters and those engaged in battery re-conditioning.
At present, there are no re-processing facilities in the country to recover toxic metals such as mercury from thermometers, tube-lights and cadmium from batteries, etc.

Safe disposal of Hazardous Waste Generated

Another option is to dispose of the hazardous waste safely. Depending on the waste category, land disposal or incineration could be adopted. Design and operation of such facilities, either captive or common need to strictly adhere to the guidelines. Supervision of such facilities during construction stage is of paramount importance.

Setting up of Common Facilities

1. The integrated facility as indicated above should have a Zone of coverage of 200 kms radius from the facility.

2. This facility should be located close to the major waste generation area.
3. Beyond the Zone of coverage (where transport cost plays a major role), smaller facilities (satellite facility) comprising only of a secured landfill including waste stabilization / solidification facility, laboratory capable of Finger Printing Analysis, Mechanized Transportation and Handling of Wastes and a transfer station should be established, where feasible.

4. These facilities should be linked with the integrated facility of the State for comprehensive analysis of wastes, storage of intractable wastes, incineration and such other services.

5. These transfer stations cum landfill facilities should be atleast 300 kms from each other and the integrated facility.

6. All liability for these facilities shall also rest with the integrated waste management facility.

7. After the first integrated facility reaches satisfactory level of capacity utilization (50% of estimated waste) further integrated facilities can be planned.
8. New bio-medical waste treatment facilities, both common and individual, should not be allowed within forty kms. of an integrated facility since bio-medical wastes can also be handled at the integrated facilities.

Use of Cement Kilns for HW incineration

Incineration of high calorific value hazardous wastes in cement kilns is a safe alternative to conventional disposal in dedicated waste incinerators. In the cement kilns, the high flame temperature of around 20000C and high material temperature of around 14000C and large residence time of around 4-5 seconds ensure complete combustion of all organic compounds. Acid gases formed during combustion are neutralized by the alkaline raw material. The non-combustible residue including heavy metals gets incorporated into clinker in an irreversible manner. The spread of cement industry in India across the States makes this option particularly attractive in the Indian context. [10]

Illegal Dumpsites and remediation

In the absence of common facilities, illegal and clandestine dumping of Hazardous Waste has been reported in many States. Even after waste disposal facilities have become operational in some States, the problem persists since illegal dumping helps avoid costs of transportation and disposal. To prevent the problem from growing out of proportions, surveillance, especially during night hours, both by enforcement agencies as well as industry associations should be made effective.[11]

Environmental Courts and Specialist Judges

The handling of cases related to hazardous waste and environment require establishment of Environmental Courts administered by specialist judges having sensitivity towards environment, hazardous waste management and sustainable development, so that it may help the speedy and required justice in environmental cases and the international commitments of India related to Sustainable Development may be met.

CHAPTER 8

Conclusion

The industry driven economy of India has resulted in hazardous waste problems, which are difficult to manage in an environmentally friendly manner. The non-enforcement of 'Polluter Pays' principle, continuation of import of hazardous wastes despite the ban, absence of proper infrastructure viz. centralized disposal facilities and lack of technical and financial resources have led to the unscientific disposal of hazardous wastes posing serious threat to human, animal and plant life. A High Power Committee (HPC) on hazardous waste management, constituted by the Hon'ble Supreme Court of India in 1997, made similar observation and conclude that the hazardous wastes situation in India is fairly grim. Thus, there is an urgent need for formulating proper hazardous waste management strategies, implementation of hazardous wastes management regulations and establishment of proper hazardous waste treatment and disposal facilities (HWTDF) for controlling the unscientific disposal of hazardous wastes This is now being done in accordance with the order of the Supreme Court which was issued on October 14, 2003 under the supervision of the Supreme Court Monitoring Committee.

In an ideal world there would be no such thing as waste, merely useful raw materials for recycling. The reality is of course rather different. Whilst some materials are well suited to recycling, many are not. For those that are suitable for recycling, some kind of segregation at the level of the householder is needed, but this in many countries is not provided. The result is a heavily mixed waste which is most cheaply disposed by tipping in the nearest landfill, which is probably the least environmentally sound option. Recycling such mixed waste involves segregation processes which carry health risks to workers and most probably also to the general public outside of the plant. Even after segregation, there are major waste streams requiring composting, combustion or landfill, all of which carry their own environmental risks.

Bibliography

BOOKS and COMMENTARIES

· Constitutional Law of

India

by J. N. Pandey 40^th Edition.

· Environmental Jurisprudence- Polluter’s Liability by Indrajit Dubey 1^st Edition

· Environmental Law in India by P. Leelakrishnan 2nd Edition

· Solid And Hazardous Waste Management by S. C. Bhatia

· Environmental Law and Policy in India-Cases, Materials and Statutes by Shyam Diwan and Armin Rosencranz, 2^nd Edition

· Environmental Law by Dr. J. J. R. Upadhyaya

List of Statutes Referred

Rules:

· Hazardous Wastes (Management and Handling) Rules, 1989 [amended in 2006].

· Bio-Medical Wastes (Management and Handling) Rules, 1998

· Manufacture, Storage, Import of Hazardous Chemicals Rules, 1989

· Chemical Accidents (Emergency Planning, Preparedness and Response) Rules, 1996

· Manufacture Use, Import Export & Storage of Hazardous Micro Organisms Rules, 1989

· Municipal Solid Waste (Management and Handling) Rules, 2000

Enactments:

· Environment (Protection) Act, 1986

· Water (Prevention and Control of Pollution) Act, 1974

· Air (Prevention and Control of Pollution) Act, 1981

· Factories (Amendment) Act, 1987

· Public Liability Insurance Act, 1991

· National Environment Tribunal Act, 1995

· Motor Vehicles Act, 1988

· The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985

[1] Article 48-A of the Constitution comes under Directive Principles of State Policy.

[2] Article 51 A (g) of the Constitution comes under Fundamental Duties.

[3] In order to encourage the effective implementation of these rules, the MOEF has further brought out the Guidelines for HW (M & H) Rules in 1991.

[4] Decisions were taken at the United Nations Conference on the Human Environment held in Stockholm in June 1972, in which

India

participated, to take appropriate steps for the preservation of the natural resources of the earth which, among other things, includes the preservation of the quality of air and control of air pollution.

[5] The Hon'ble Supreme Court of India vide its order dated 14 October 2003 in the matter of Writ Petition (Civil) No. 657 of 1995 filed by the Research Foundation for Science, Technology and Natural Resource Policy Vs Union of India and Others, inter-alia, directed the Central Government to constitute a Monitoring Committee to oversee timely compliance of its directions given in the said Writ Petition.

[6] Research Foundation for Science, Technology and Natural Resource Policy Vs Union of India and others(1995)

[7] For example:

· All imported goods have to pass through Customs, which comes under the Ministry of Finance.

· All matters relating to imports and exports are handled by the Ministry of Commerce under whom the Director General of Foreign Trade( DGFT) and Director General of Commercial Intelligence (DGCIS), both located in Calcutta, operate.

· The need for employment generation, and consequently, matters relating to labour and industrial policy, industrial safety, occupations health hazards, compensation for disability/death are all matters dealt with by the Ministry of Labour.

· A significant part of environmental pollution relates to water (both surface water and, particularly, groundwater); the Ministry of Water Resources is clearly involved.

· Toxicological aspects of hazardous wastes like heavy metals, hormone disrupting chemicals and such other issues have to be dealt with by the Ministry of Health. Major research facility that comes under it is the Indian Council of Medical Research. Council of Scientific and Industrial Research (CSIR) and the Department of Biotechnology, on the other hand, comes under the Ministry of Science and Technology.

· Ministry of Petroleum and Natural Gas is involved in respect of the oil sector while the Ministries of Railways, Defence and Surface Transport deal with matters relating to large scale use of battery systems and their disposal.

· Ministry of Law is to be interacted on matters that relate to legislation, and extensively with the State Government in relation to implementation of laws, rules and regulations, and guidelines at grassroots level.

[8] Section 11 of the Customs Act, 1962 empowers the Central Government to prohibit either absolutely or subject to such conditions as may be specified in Notification the import and export of the goods if satisfied that it is necessary so to do for any of the purposes stated in sub-section (2).

[9] [1995 (3) SCC 42]

[10] That about 250 cement works in Europe utilize about 3 million tons of hazardous wastes indicates the potential that this option holds for India given that in India we have over 200 cement kilns and the incinerable hazardous wastes generated is only about 0.2 MTs.

[11] In cases where it becomes impossible to track down the polluters, a dedicated fund needs to be created at the State level to which mandatory contributions from all producers of hazardous wastes could be prescribed. The problem of hazardous wastes and chemicals lying in units which have been closed should also be tackled strictly based on the 'Polluter-Pays' Principle.

RIGHT TO INFORMATION

2017-05-31T23:32:00.002-07:00

RIGHT TO INFORMATION

“Democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold governments and their instrumentalities accountable to the governed.”

Citizens’ Access to Information (ATI) is an essential stepin ensuring transparency and accountability ingovernment systems and processes. When a governmentis transparent, there is less chance for corruption andmore room for accountability. The RTI generally understood as the right to access information held bypublic authorities. It is not just a necessity of the citizens; it is a precondition to good-governance. To be specific,ATI makes democracy more vibrant and meaningful andallows citizens to participate in the governance processof the county. In particular, it empowers ordinary citizens,especially those in rural areas.

When people have ATI they naturally tend to make moremeaningful decisions, raise informed opinions, influencepolicies affecting their society and even help shape amore assured future for the next generation. RTI has been recognised in Sweden for over 200 years.Importantly, however, over the last ten years it has gainedwidespread recognition in all regions of the world. Whilerelated legislations were adopted only by 13 countriesin 1990, this number has now grown to 852 and more,and similar such pieces of legislations are under activeconsideration in many other countries.

In India, Right to Information Act was enacted in 2005 and since thenthis law has proved to be a strong weapon in the handsof people, for ensuring transparency in governmentdepartments and containing corruption.

This short project reports is intended to reveal the Constitutional aspects of the Right to Information.

II. HAS RIGHT TO INFORMATION EMERGED FROM OUR CONSTITUTION?

Rightly as one of the significant objectives of Indian Constitution as the preamble describes, is to secure liberty of thought and expressions to the citizens of India. The Article 19(1)(a) of the constitution, the fundamental right to speech and expression can never be exercised until and unless the information regarding public matters is being circulated.

The right of information is an inalienable component of freedom of speech and expression guaranteed by Article 19(1) (a) of Indian constitution. As held in the respective cases ofBennet Coleman v. UOI, SP Gupta v UOI, and Secretary, Ministry of information and broadcasting v Cricket Association of Bengal.

The Supreme Court of India in Bennet Coleman case while taking into account the News print control order, allotment of newsprint to a newspaper was restricted, held that such restriction had not only infringed newspaper‘s right to freedom of speech but also readers’ right to read was cut down. And the reader’s right to access the newspaper was his right to information which was implicit in the right to Right of freedom of speech.

Similarly, in SP Gupta case the SC observed that “the people of this country have a right to know every public act, everything that is done in a public way, by those functionaries. They are entitled to know the very particulars of every public transaction. Also in Secretary, ministry of information & broadcasting v. Cricket Assn. of Bengal, the SC held that the airwaves were a public property and its distribution among the government media and the private channels should be done on equitable basis as the freedom of speech included the right to impart and receive information from electronic media.

Beside Article 19(1) (a), the other articles which give right to information under Indian constitution are Articles 311(2) and 22(1). Article 311(2) provides for a govt. servant to know why he is being dismissed or removed or being demoted and representation can be made against the order. By way of Article 22(1) a person can know the grounds for his detention. In Essar Oil Ltd v. Halar Utkarsha Samiti, the SC held that right to information emerges from right to personal liberty guaranteed by article 21 of constitution.

III. CONSTITUTIONAL PROVISIONS OF THE RIGHT TO INFORMATION

Since constitution is a living document it needs to be construed in a broad and liberal sense. The construction most beneficial to the widest possible amplitude of its powers may have to adopt since of all the instruments, the Constitution has the greatest claim to be construed broadly and liberally.

The Indian Constitution has an impressive array of basic and inalienable rights termed as fundamental rights contained in Chapter III. These include the Right to Equal Protection of the Laws and the Right to Equality before the Law (Article 14), the Right to Freedom of Speech and Expression [Article 19(1) (a)] and the Right to Life "Personal Liberty (Article 21). These are backed by the Right to Constitutional Remedies in Article 32, i.e., the Right to approach the Supreme Court, the highest court in the land, or the High Court in case of infringement of any of fundamental rights. The State is not only under an obligation to respect the Fundamental Rights of the citizens, but also equally under an obligation to ensure conditions under which the Right can be meaningfully and effectively enjoyed by all. However, the Constitution does not specifically mention about the right to information or even right to freedom of the press.

Article 19(1)(a) of the Constitution guarantees the fundamental rights to free speech and expression, which, by implication, includes within it the right of access to information. The prerequisite for enjoying this right is knowledge and information. Therefore, the Right to Information becomes a constitutional right, being an aspect of the right to free speech and expression, which includes the right to receive and collect information.

The Right to Information also seems to flow from Article 21 of the Constitution on the right to life and liberty, which includes right to know about things that affect our lives. The expression "right to life and personal liberty" is a broad term, which includes within itself variety of rights and attributes. In Reliance Petrochemical Ltd. v Proprietors of Indian Express Newspapers Bombay Pvt. Ltd. and others, the Supreme Court read into Article 21 as broad right to include right to know within its purview. The apex court held that right to know is a necessary ingredient of participatory democracy. The expression cannot be limited to mere absence of bodily restraint. It is wide enough to expand to full range of rights including right to hold a particular opinion and right to sustain and nurture that opinion. For sustaining and nurturing that opinion it becomes necessary to receive information. Article 21 confers on all persons a right to know which includes a right to receive information. The ambit and scope of Article 21 is much wider as compared to Article 19(1) (a).Thus,the courts are required to expand its scope by way of judicial activism.

In P.U.C.L v U.O.I the Supreme Court observed that Fundamental Rights themselves have no fixedcontents, most of them are empty vessels into which each generation must pour itscontents in the light of its experience. The attempt of the court should be to expand thereach and ambit of the Fundamental Rights by process of judicial interpretation. Therecannot be any distinction between the Fundamental Rights mentioned in Chapter-III ofthe constitution and the declaration of such rights on the basis of the judgments renderedby the Supreme Court.

In Keshvanand Bharati v State of Kerala, the Supreme Court observed, "Fundamental Rights themselves have no fixed contents, most of them are empty vessels into which each generation must pour its contents in the light of its experience. It is relevant in this context to remember that in building up a just social order it is sometimes imperative that the fundamental rights should be subordinated to the directive principles. The attempt of the court should be to expand the reach and ambit of the Fundamental Rights by process of judicial interpretation".

The burden to prove that the restrictions are within the constitutional limits lies on the Government. Further, it is well settled that while interpreting the constitutional provisions dealing with fundamental rights the courts must not forget the principles embodied in the international conventions and instruments and as far as possible the courts must give effect to the principles contained in those instruments. The courts are under an obligation to give due regard to the international conventions and norms while construing the domestic laws, more so when there is no inconsistency or conflict between them and the domestic law.

The Supreme Court in case of Secretary, Ministry of Information and Broadcasting, Government of India v. Cricket Association of Bengal, narrowly expanded its view on the provision of article 19(1) (a) towards the right to information. It held that the right to freedom of speech and expression includes the right to receive and impart information. For ensuring the free speech right of citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an unaware citizen's diversity of opinions, views, ideas, and ideologies which is essential to enable the citizens to arrive at informed judgement on all issues touching them. This court made more clear of the provision of right to information that is inferred itself in Article 19(1) (a).

It held in case of S.P. Gupta v Union of India, that right to know is implicit in right to free speech and expression. Disclosure of information regarding functioning of the government must be the rule.

In going back to 1975 this court in case of State of Uttar Pradesh v Raj Narain, observed that freedom of speech and expression includes right of citizens to know every public act, everything that is done in a public way, by their public functionaries. In the year the court also held that freedom of speech and expression includes right of the citizens to know about the affairs of the government.

The Supreme Court in another case of Peoples Union for Civil Liberties v Union of India, held that true democracy cannot exist unless the citizens have a right to participate in the affairs of the policy of the country. This is particularly so in a country like ours where 65% of the population is illiterate.

IV. CRITICISM OF SOME CONSTITUTIONAL PROVISIONS

The most formidable obstacle to the implementation of a Right to Information law inthe States and country comes from theConstitution itself. It defies human reason as to how a visibly anachronistic arid anti-people article i.e.oath of secrecy found place in the third Scheduleof the Constitution and is still being tolerated tothis day without any compunction, the like ofwhich is noticed nowhere in the democratic world.

The Article 75 (4) of the Constitution makes itbinding on every Minister before entering into hisoffice to swear by an oath of Secrecy, which readsas follows:

I, Swear in the name of God that I will not reveal to any person or persons any matter, which shall be brought under my consideration or shall be known to me as a Minister for the Union except as may be required for the due discharge of my duties as such Minister.

As is well known, in the typical Indiansystem of Parliamentary Democracy, a Ministeris both a member of legislature and a head of theexecutive in respect of the portfolios he holds.When a Minister, the head himself vows in thename of God to maintain secrecy of officialinformation from the people, how can the rest ofthe executive i.e. the Government servants whomhe heads and leads for all practical purposes, beexpected to disclose official information to thepeople just for the sake of a piece of legislation,called Right to Information or Freedom ofInformation Act? Over and above, there areConduct Rules, Codes and Manuals for theGovernment Servants, which bind them to the observance of strictsecrecy of official information from the public.

The National Commission to Review the Working of the Constitution (2000- 2002), whichsubmitted their 1800 and odd page Report to thePrime Minister on 3lst March 2002 have thereforeobserved inter alia.Much of the common man's distress andhelplessness could be traced to his lack of access to information and lack of knowledge of decisionmakingprocesses, which vitally affect his interest.Government procedures and regulationsshrouded in a veil of secrecy do not allow theclients to know how their cases are being handled.They shy away from questioning officers handlingtheir cases because of the latter's snobbish attitudeand bow-wow style. Right to information shouldbe guaranteed and needs to be given realsubstance. The traditional insistence on secrecyshould be, in fact, we should have an oath oftransparency in place of an oath of secrecy.Administration should become transparent andparticipatory.

The Oath of Secrecy apart, the IndianConstitution is replete with provisions, which arejust uncritically borrowed from its colonialpredecessor Government of India Act 1935, andlegitimize and reinforce by the full backing of thesupreme law of the land, an obsolete and nefariousregime of administrative secrecy that is squarelyincompatible with a democratic polity of moderntimes. Such immunitarian provisions of theConstitution as guaranteeing a special manner ofProtection to the Permanent Civil Service of thecolonial style (Article 311), Privileges of the Legislators ( Article 105 for MPs and Article 194 for MLAs), Security of tenure to the Judges(Article 124 for Supreme Court Judges andArticle 217 for High Court Judges), and aboveall Legal Protection to the President and Governors (Article 361), which together makethe citizens stare at the key functionaries of theState with awe and wonder, and which give afree hand to these functionaries to deal with themas they like without being directly accountable tothem, do also contribute indirectly but substantiallyto the maintenance of a regime built upon secrecy,red-tape, corruption and alienation from thepeople.

Unless and until the Constitution is rid ofits colonial self and remade in such a manner asto place the citizen at its center-stage, with all theorgans of power being directly accountable to himand his everyday life, no piecemeal enactment ofRight to Information can bring about the muchdesired elements of transparency, responsivenessand accountability to the governance of the day,over which the whole nation cries hoarse.

V. CONCLUSION

RTI is a powerful tool that can deliver significant socialbenefits. It can provide a strong support to democracy and promote good governance, by empowering the citizen’s ability to participate effectively and holdgovernment officials accountable. Rather than justproviding information, RTI Act in most of the countrieshas served to be an effective watchdog ensuring all thosecoming in purview of the Act to work in accordancewith rules and regulations, without any irregularities.

Every citizen has a right to impart and receive information as part of his right toinformation. The State is not only under an obligation to respect this right of the citizen,but equally under an obligation to ensure conditions under which this right can bemeaningfully and effectively enjoyed by one and all. Right to information is basic to andindivisible from a democratic polity. This right includes right to acquire information andto disseminate it. Right to information is necessary for self-expression, which is animportant means of free conscience and self-fulfillment. It enables people to contributeon social and moral issues. It is the best way to find a truest model of anything, since it isonly through it that the widest possible range of ideas can be circulated. This right can be limited only by reasonable restrictions under a law for the purposes mentioned in Article19(2) of our constitution. Hence no restriction can be placed on the Right to informationon the grounds other than those specified under Article 19(2). The said right cannot bedenied by creating a monopoly in favour of the government or any other authority15.

Human history is witness to the fact that all evolution and all progress is because ofpower of thought and that every attempt at thought control is doomed to failure. An ideacan never be killed. Suppression can never be a successful permanent policy. It will eruptone day. The Constitution of India guarantees freedom of thought and expression and theonly limitation being a law in terms of Article 19(2) of the constitution. Thought controlis alien to our constitutional scheme. Further, people at large have a right to know inorder to be able to take part in a participatory development in the industrial life anddemocracy. Right to know is a basic right which people of a free country aspire in thebroaden horizon of the right to life in this age on our land under Article 21 of the Constitution. That right has reached new dimensions and urgency. That right puts greaterresponsibility upon those who take upon the responsibility to inform.

The Right to information is a sine-quo-non of democratic polity. Information always empowers people and ensures transparency of administration.But people’s access to information is very limited because of the fact that mechanism is not so effective and man’s brain deliberatively holds back information. The Right to Information Act 2005 seems to be an effective legislation but what about its effective implementation. And it requires aware and educated people who can use it for their welfare. So government first needs to ensure that a majority of population becomes educated so that this act may survive for a longer period and serve the deprived and poor people of this country. Also a high order Judicial Activism is also necessary regarding the implementation. If it succeeds in its purpose it will necessarily increase public participation.

Rights of Arrested Person

2017-05-31T23:31:00.002-07:00

Rights of Arrested Person

“Arrest” means:

“a seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge.” [Legal Dictionary by Farlex]

The purpose of an arrest is to bring the arrestee before a court or otherwise secure the administration of the law. An arrest serves the function of notifying the community that an individual has been accused of a crime and also may admonish and deter the arrested individual from committing other crimes. Arrests can be made on both criminal charges and civil charges, although civil arrest is a drastic measure that is not looked upon with favor by the courts. The federal Constitution imposes limits on both civil and criminal arrests.

ARREST HOW MADE:

Section 46 of Criminal Procedure Code (hereinafter Cr.P.C) –

(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

[(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.] {Ins. by Act 25 of 2005, S. 6 (w.e.f 23-6-2006)}

Rights of Arrested Person

One of the basic tenets of our legal system is the benefit of the presumption of innocence of the accused till he is found guilty at the end of a trial on legal evidence. In a democratic society even the rights of the accused are sacrosanct, though accused of an offence, he does not become a non-person. Rights of the accused include the rights of the accused at the time of arrest, at the time of search and seizure, during the process of trial and the like.

The accused in India are afforded certain rights, the most basic of which are found in the Indian Constitution. The general theory behind these rights is that the government has enormous resources available to it for the prosecution of individuals, and individuals therefore are entitled to some protection from misuse of those powers by the government. An accused has certain rights during the course of any investigation; enquiry or trial of an offence with which he is charged and he should be protected against arbitrary or illegal arrest. Police have a wide powers conferred on them to arrest any person under Cognizable offence without going to magistrate, so Court should be vigilant to see that theses powers are not abused for lightly used for personal benefits. No arrest can be made on mere suspicion or information. Even private person cannot follow and arrest a person on the statement of another person, however impeachable it is.

Though the police has been given various powers for facilitating the making of arrests, the powers are subject to certain restraints. These restraints are primarily provided for the protection of the interests of the person to be arrested, and also of the society at large. The imposition of the restraints can be considered, to an extent, as the recognition of the rights of the arrested person. There are, however, some other provisions which have rather more expressly and directly created important rights in favour of the arrested person.

In the leading case of Kishore Singh Ravinder Dev v. State of Rajasthan, it was said that the laws of India i.e. Constitutional, Evidentiary and procedural have made elaborate provisions for safeguarding the rights of accused with the view to protect his (accused) dignity as a human being and giving him benefits of a just, fair and impartial trail. However in another leading case of Meneka Gandhi v. Union of India it was interpreted that the procedure adopted by the state must, therefore, be just, fair and reasonable.

Rights Of Arrested Person

1. Right To Silence

The ‘right to silence’ is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court. The Justice Malimath Committee writes about the origin of the right to silence that “it was essentially the right to refuse to answer and incriminate oneself in the absence of a proper charge. Not initially, the right to refuse to reply to a proper charge.” The Justice Malimath Committee’s assumption is that the right to silence is only needed in tyrannical societies, where anyone can be arbitrarily charged. It assumes that whenever a charge is “proper”, there is no need for protection of the accused. In this backdrop it becomes necessary to examine the right to silence and its companion right against self-incrimination. These are the two aspects of fair trial and therefore cannot be made a subject matter of legislation. Right to fair trial is the basic premise of all procedural laws. The very prescription of procedure and the evolution of procedural law have to be understood in the historical context of the anxiety to substitute rule of men by rule of law. In law any statement or confession made to a police officer is not admissible. Right to silence is mainly concerned about confession. Breaking of silence by the accused can be before a magistrate but should be voluntary and without any duress or inducement. To ensure the truthfulness and reliability of the facts he stated the magistrate is required to take several precautions. Right to silence and the right against self-incrimination have been watered down quite considerably by interpretation than by legislation. The defendant if he so desires can be a witness in his trial. His confession outside the court either to the police officer or to the magistrate is admissible. He is encouraged to betray his colleagues in crime on promise of pardon. He is expected to explain every adverse circumstance to the court at the conclusion of evidence with the court having jurisdiction to draw adverse inference while appreciating the evidence against him.

The constitution of India guarantees every person right against self incrimination under Article 20 (3) “No person accused of any offense shall be compelled to be a witness against himself”. It is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani, no one can forcibly extract statements from the accused, who has the right to keep silent during the course of interrogation (investigation). By the administration of these tests, forcible intrusion into one’s mind is being restored to, thereby nullifying the validity and legitimacy of the Right to Silence. In 2010 The Supreme court made narco-analysis, brain mapping and lie detector test as a violation of Article 20(3).

2. Right To Know The Grounds of Arrest

Firstly, according to Section 50(1) Cr.P.C. “every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.”

Secondly, when a subordinate officer is deputed by a senior police officer to arrest a person under Section 55 Cr.P.C., such subordinate officer shall, before making the arrest, notify to the person to be arrested the substance of the written order given by the senior police officer specifying the offence or other cause for which the arrest is to be made. Non- compliance with this provision will render the arrest illegal.

Thirdly, in case of arrest to be made under a warrant, Section 75 Cr.P.C. provides that “the police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and if so required, shall show him the warrant.” If the substance of the warrant is not notified, the arrest would be unlawful.

Indian constitution has also conferred on this right the status of the fundamental right. Article 22(2) of the constitution provides that “no person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds of such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice.”

The right to be informed of the grounds of arrest is a precious right of the arrested person. Timely information of the grounds of arrest serves him in many ways. It enables him to move the proper court for bail, or in appropriate circumstances for a writ of habeas corpus, or to make expeditious arrangement for his defence.

In re, Madhu Limaye the facts were: Madhu Limaye, Member of the Lok Sabha and several other persons were arrested. Madhu Limaye addressed a petition in the form of a letter to the Supreme Court under Article 32 mentioning that he along with his companions had been arrested but had not been communicated the reasons or the grounds for arrest. One of the contentions raised by Madhu Limaye was that there was a violation of the mandatory provisions of Article 22 (1) of the Constitution. The Supreme Court observed that Article 22 (1) embodies a rule which has always been regarded as vital and fundamental for safeguarding personal liberty in all legal systems where the Rule of Law prevails. The court further observed that the two requirements of Clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the minds of the arresting authority and, also to know exactly what the accusation against him is so that he can exercise the second right, namely of consulting a legal practitioner of his choice and to be defended by him.

Whenever that is not done, the petitioner would be entitled to a writ of Habeas Corpus directing his release. Hence, the Court held that Madhu Limaye and others were entitled to be released on this ground alone.

It appears reasonable to accept that grounds of the arrest should be communicated to the arrested person in the language understood by him; otherwise it would not amount to sufficient compliance with the constitutional requirement. The words “as soon as may be” in Article 22(1) would means as early as is reasonable in the circumstance of the case, however, the words “forthwith” in Section 50(1) of the code creates a stricter duty on the part of the police officer making the arrest and would mean “immediately”.

If the arrest is made by the magistrate without a warrant under Section 44, the case is covered neither by any of the section 50, 55 and 75 nor by any other provision in the code requiring the magistrate to communicate the grounds of arrest to the arrested person. The lacuna in the code, however, will not create any difficulty in practice as the magistrate would still be bound to state the grounds under Article 22(1) of the Constitution.

The rules emerging from decision such as Joginder Singh v. State of U.P. and D.K. Basu v. State of West Bengal, have been enacted in Section 50-A making it obligatory on the part of the police officer not only to inform the friend or relative of the arrested person about his arrest etc. but also to make entry in a register maintained by the police. The magistrate is also under an obligation to satisfy himself about the compliance of the police in this regard.

3. Information Regarding The Right To Be Released On Bail

Section 50(2) Cr.P.C. provides that “where a police officer arrests without warrant any person other than a person accused of a non- bailable offence, he shall inform the person arrested that he is entitled to be released in bail that he may arrange for sureties on his.” This will certainly be of help to persons who may not know about their rights to be released on bail in case of bailable offences. As a consequence, this provision may in some small measures, improve the relations of the people with the police and reduce discontent against them.

4. Right To Be Taken Before A Magistrate Without Delay

Whether the arrest is made without warrant by a police officer, or whether the arrest is made under a warrant by any person, the person making the arrest must bring the arrested person before a judicial officer without unnecessary delay. It is also provided that the arrested person should not be confined in any place other than a police station before he is taken to the magistrate. These matters have been provided in Cr.P.C. under section 56 and 76 which are as given below:

56. Person arrested to be taken before Magistrate or officer in charge of police station- A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.

76. Person arrested to be brought before Court without delay- The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person.

Provided that such delay shall not, in any case, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Cou

5. Right Of Not Being Detained For More Than 24 Hours Without Judicial Scrutiny

Whether the arrest is without warrant or under a warrant, the arrested person must be brought before the magistrate or court within 24 hours. Section 57 provides as follows:

57. Person arrested not to be detained more than twenty-four hours- No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.

This right has been further strengthened by its incorporation in the Constitution as a fundamental right. Article 22(2) of the Constitution proves that “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.” In case of arrest under a warrant the proviso to Section 76 provides a similar rule in substance.

The right to be brought before a magistrate within a period of not more than 24 hours of arrest has been created with a view-

i. To prevent arrest and detention for the purpose of extracting confessions, or as a means of compelling people to give information;

ii. To prevent police stations being used as though they were prisons- a purpose for which they are unsuitable;

iii. To afford to an early recourse to a judicial officer independent of the police on all questions of bail or discharge.

In a case of Khatri(II) v. State of Bihar, the Supreme Court has strongly urged upon the state and its police authorities to ensure that this constitutional and legal requirement to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest be scrupulously observed. This healthy provision enables the magistrate to keep check over the police investigation and it is necessary that the magistrates should try to enforce this requirement and where it is found disobeyed, come heavily upon the police.

If police officer fails to produce an arrested person before a magistrate within 24 hours of the arrest, he shall be held guilty of wrongful detention.

In a case of Poovan v. Sub- Inspector of Police it was said that whenever a complaint is received by a magistrate that a person is arrested within his jurisdiction but has not been produced before him within 24 hours or a complaint has made to him that a person is being detained within his jurisdiction beyond 24 hours of his arrest, he can and should call upon the police officer concerned; to state whether the allegations are true and if so; on what and under whose custody; he is being so helped. If officer denies the arrest, the magistrate can make an inquiry into the issue and pass appropriate orders.

6. Rights at Trial

i. Right To A Fair Trial-The Constitution under Article 14 guarantees the right to equality before the law. The Code of Criminal Procedure also provides that for a trial to be fair, it must be an open court trial. This provision is designed to ensure that convictions are not obtained in secret. In some exceptional cases the trial may be held in camera. Every accused is entitled to be informed by the court before taking the evidence that he is entitled to have his case tried by another court and if the accused subsequently moves such application for transfer of his case to another court the same must be transferred. However, the accused has no right to select or determine by which other court the case is to be tried.

ii. Right To A Speedy Trial-The Constitution provides an accused the right to a speedy trial. Although this right is not explicitly stated in the constitution, it has been interpreted by the Hon'ble Supreme Court of India in the judgment of Hussainara Khatoon. This judgment mandates that an investigation in trial should be held “as expeditiously as possible”. In all summons trials (cases where the maximum punishment is two years imprisonment) once the accused has been arrested, the investigation for the trial must be completed within six months or stopped on an order of the Magistrate, unless the Magistrate receives and accepts, with his reasons in writing, that there is cause to extend the investigation

7. Right To Consult A Legal Practitioner

Article 22(1) of the Constitution provides that no person who is arrested shall be denied the right to consult a legal practitioner of his choice. Further, as has been held by the Supreme Court that state is under a constitutional mandate (implicit in article 21) to provide free legal aid to an indigent accused person, and the constitutional obligation to provide free legal aid does not arise only when the trial commences but also attaches when the accused is for the first time produced before the magistrate, as also when remanded from time to time. It has been held by the Supreme Court that non- compliance with this requirement and failure to inform the accused of this right would vitiate the trial. Section 50(3) also provides that any person against whom proceedings are instituted under the code may of right be defended by a pleader of his choice. The right of an arrested person to consult his lawyer begins from the moment of his arrest. The consultation with the lawyer may be in the presence of police officer but not within his hearing.

8. Rights Of Free Legal Aid

In Khatri(II) v. State of Bihar, the Supreme Court has held that the state is under a constitutional mandate (implicit in Article 21) to provide free legal aid to an indigent accused person, an and the constitutional obligation to provide free legal aid does not arise only when the trial commences but also attaches when the accused is for the first time produced before the magistrate, as also when remanded from time to time. However this constitutional right of an indigent accused to get free legal aid may prove to be illusory unless he is promptly and duly informed about it by the court when he is produced before it. The Supreme Court has therefore cast a duty on all magistrates and courts to inform the indigent accused about his right to get free legal aid. The apex court has gone a step further in Suk Das v. Union Territory of Arunachal Pradesh, wherein it has been categorically laid down that this constitutional right cannot be denied if the accused failed to apply for it. It s clear that unless refused, failure to provide free legal aid to an indigent accused would vitiate the trial entailing setting aside of the conviction and sentence.

9. Right To Be Examined By A Medical Practitioner

Section 54 now renumbered as Section 54(1) provides:

54. Examination of arrested person by medical practitioner at the request of the arrested person

When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice.

10. Right Of The Accused To Produce An Evidence

The accused even has right to produce witness in his defence in case of police report or private defence. After the Examination and cross examination of all prosecution witness i.e. after the completion of the prosecution case the accused shall be called upon to enter upon his defence and any written statement put in shall be filled with the record. He may even call further for cross examination. The judge shall go on recording the evidence of prosecution witness till the prosecution closes its evidence.

The accused in order to test the veracity of the testimony of a prosecution witness has the right to cross-examine him. Section 138 of Indian Evidence Act, 1872 gives accused has a right to confront only witnesses. This right ensures that the accused has the opportunity for cross-examination of the adverse witness. Section 33 of Indian Evidence Act tells when witness is unavailable at trial, a testimonial statement of the witness maybe dispensed by issuing commission. The testimony at a formal trial is one example of prior testimonial statements which can be used as documentary evidence in a subsequent trial.

When in the course of investigation an accused or any other person desiring to make any statement is brought to a magistrate so that any confession or statement that he may be deposed to make of his free will is record. Confession statements by accused to the police are absolutely excluded under Section 25, Evidence Act.

11-RIGHT OF DEFAULT BAIL:

The proviso to Section 167(2) of Cr.P.C. clearly lays down that the total period of

detention should not exceed ninety days in cases where the investigation relates to serious offences mentioned therein and sixty days in other cases and if by that time cognizance is not taken on the expiry of the said periods the accused shall be released on bail as mentioned therein. [CBI v. Anupam J. Kulkarni, 1992]

Proviso to sub-section (2) of Section 167 of the Code leaves no manner of doubt that during the investigation of the crime, an accused cannot be detained beyond a period of sixty days (prior to the amendments of Section 167 in 1978). [State of Haryana v. Mehal Singh, 1978 Cri LJ 1810]

The language of the proviso (a) to Section 167(2) of Cr.P.C. clearly states that after an accused is kept in custody for the total period of sixty days, the Magistrate has no jurisdiction to pass orders for his detention in custody provided the accused person is prepared to and does furnish bail. Of course if a person is released on bail under this section he shall be deemed to be so released under the provisions of Chapter XXXIII of Cr.P.C. for the purposes of that Chapter. [Ved Kumar Seth v. State of Assam, 1975]

Proviso to sub-section (2) of Section 167 of the Cr.P.C. leaves no manner of doubt that during the investigation of the crime, an accused cannot be detained beyond a period of sixty days (prior to amendment of Section 167 of Cr.P.C.). If during this period the investigation is not completed, the Magistrate has no jurisdiction to remand the accused for further detention unless he had taken cognizance of the offence in which case he cod order remand of the accused for the purpose of enquiry or the trial, as the case may be. [State of Haryana v. Mehal Singh]

Where an application for bail under proviso to Section 167(2) Cr.P.C. is presented by police, the accused is entitled to be released on bail under the proviso to Section 167(2) (if stipulated period under that section was over at the time of making of such application for bail). [Gurmit Kaur v. State of Punjab, 1989 Cri LJ 1609]

Judicial Pronouncements

Joginder Kumar v. State of U.P

D.K. Basu v. State of W.B

Conclusion
Arrest has far reaching consequences; the social status and dignity of an individual suspect becomes at stake, even his discharge cannot blot out the stigma consequent upon arrest. There are financial implications for the arrested person and his family. The public suffers its repercussion as we. Naturally, it needs to be ensured that arrests are not effected in a frivolous manner and that the rights of arrested persons are fully guaranteed. Towards this effect, The Cr.P.C. lays down safeguards such that the rights of persons enshrined in Art. 21 and 22(1) are not violated. However, it has been some time before the statutory provisions have been understood in all its implication and they have been given effect to. Mostly the criminal administration system ignores such safeguards and the judiciary for quite some time has been lax about ensuring the proper observance of prisoner’s rights. So there have been many later declarations and statutory enactments which reaffirm the faith in the rights of arrested persons. The endeavour is to look into various rights of arrested persons, enshrined in statutes, conventions and judicial pronouncements. [Padmaja Chakravarty, “Critical View of the Rights of Arrested Persons in India: Conformity to Comparable International Standards”, indiankanoon.org]

Beside this, I feel an urge to point out the other side, i.e., victims, they have either less rights or they do not have one. Our socialist, Court and even Cr.P.C. talks about the rights of arrested person, but there are no such provisions to safeguard the interest of the victim. They are ignored fully or partially, later they become the news of the media channels nowadays. Earlier or today itself, remedies are available to the accused and not to who against the crime is committed. I admit the fact that there are some people who suffer because they are falsely implicated into a case, but there are also those people who are benefitted with these provisions.

Hence, I would like to conclude with that, our law system and police while investigating the case should be so particular about the case that the victim should not suffer. It is duty upon the Court of Law that it should not violates the right of liberty of any innocent person and at the same time also not infringes the rights of victims.

LOK ADALAT

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Lok Adalat

“To the poor the courts are a maze,

If he pleads there all his life,

Law is so lordly,

And loath to end his case,

Without money paid in the presents,

Law listeneth to few.”

Pier's Plowman

The concept of conciliated settlement of disputes is not alien to the traditional Indian culture and social life. Nyaya Panchayats and Gram Panchayat provided seats for resolving the disputes in rural areas on an immediate basis. Generally, any crime or civil dispute used to be resolved within the village itself. Either village elders or caste elders or family elders used to facilitate the process.

The introduction of Lok Adalats added a new chapter to the justice dispensation system of this country and succeeded in providing a supplementary forum to the victims for satisfactory settlement of their disputes. This system is based on Gandhian principles. It is one of the components of ADR systems. It is an Indian contribution to the world jurisprudence of ADR. Lok Adalat (people’s courts), established by the government settles dispute by the principles of justice, equity and fair play, which are the guiding factors for decisions based on compromises to be arrived at before such Adalats.

The camps of Lok Adalats were initially started in the state of Gujarat in 1982. The first Lok Adalat was organized on 14th March 1982 at Junagarh. Maharashtra commenced the Lok Nyayalaya in 1984. The movement has now subsequently spread to the entire country. The reason to create such camps was only the pending cases and to give relief to the litigants who were in a queue to get justice.

The advent of Legal Services Authorities Act, 1987 gave a statutory status to Lok Adalats, pursuant to the constitutional mandate in Article 39-A of the Constitution of India. It contains various provisions for settlement of disputes through Lok Adalat. It is an Act to constitute legal services authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.

There is a Central Authority called the "National Legal Services Authority". Its patron is the Hon'ble Chief Justice of India. Its Executive Chairman is the senior most Judge of the Supreme Court of India. So far as the State Legal Services Authorities are concerned, it is headed by a Patron-in-Chief who is none other than the Hon'ble Chief Justice of the High Court. In almost all the State Authorities, except perhaps one or two, a sitting Judge of the High Court functions as the Executive Chairman.

SCOPE OF LOK ADALAT

The Constitution of India is the fundamental law of the land. Part IV of the Constitution deals with Directive Principles of State Policy. By virtue of Art.39-A the State is under a positive duty to secure that the operation of the legal system promotes justice on the basis of equal opportunity. The State shall also provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

By virtue of Article: 21, “no person shall be deprived of his life or personal liberty except according to procedure established by law”.

In HUSSAINARA KHATOON v. HOME SECRATERY, STATE OF BIHAR, (AIR 1979 SC 1360), the Supreme Court held that “right to speedy trial” is a fundamental right guaranteed under Art: 21 of the Constitution. Justice delayed is justice denied. Speedy trial was held to be the essence of criminal justice.

In SUK DAS v. UNION TERRITORY OF ARUNACHAL PRADESH (1986 5 SCC 401), the Supreme Court held that failure to provide free legal aid to an accused at the cost of the State unless refused by the accused would vitiate the trial. He need not apply for the same. Free legal aid is at the State cost is a fundamental right of an accused person under Art.21 of the Constitution.

A combined reading of Art.21 as interpreted by the Supreme Court of India and Art.39-A of the Constitution establish beyond doubt that speedy trial, free legal aid and equal opportunities for securing justice are fundamental rights of citizen of India and a Constitutional mandate which state has to follow in governance of this country. In order to ensure these rights more effectively, the Parliament enacted the Legal Services Authorities Act, 1987 to organise Lok Adalat to secure that the operation of the legal system promotes justice on a basis of equal opportunity.

THE LEGAL SERVICES AUTHORITIES ACT, 1987

Object—

The main object of the Act is to provide free and competent legal services to the poor and weaker sections of the society so as to ensure that they are not denied the opportunities for securing justice by reason of economic or other disabilities and to organize Lok Adalats to secure that the operation of legal system promotes justice on the basis of equal opportunity.

Some relevant provisions of Legal Services Authorities Act are as follows—

v Section 2 (1) (aaa) of the Act defines ‘Court’ as under:-

“Court means a civil, criminal or revenue court and includes any tribunal or any other authority constituted under any law for the time being in force, to exercise judicial or quasi-judicial functions.”

v Jurisdiction of Lok Adalat

(Sub Sec 5 of Sec 19 of the Act)

A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of:

(i) any case pending before; or

(ii) any matter which is falling within the jurisdiction of, and is not brought before,any court for which the Lok Adalat is organised.

The Lok Adalat can compromise and settle even criminal cases, which are compoundable under the relevant laws.

v Organisation of Lok Adalat

(Section 19 of the Act)

The State Authority and District Authority, Supreme Court Legal Services Committee, High Court Legal Services Committee and Taluk Legal Services Committee (mentioned in Section 19 of the Act) can organize Lok Adalats at such intervals and places as may be deemed fit.

- Every Lok Adalat so organized shall consist of: (a) Serving or retired judicial officers, (b) other persons, as may be specified.

The experience and qualification of “other persons” in a Lok Adalat conducted by Supreme Court Legal Services Committee shall be prescribed by the Central Government in consultation with the Chief Justice of India. At present, Rule 13 of the National Legal Services Authorities Rules, 1995 prescribes such experience and qualifications as:

(a) A member of the legal profession; or

(b) A person of repute who is specially interested in the implementation of the Legal Services Schemes and Programmes; or An eminent social worker who is engaged in the upliftment of weaker sections of people, including Scheduled Castes, Scheduled Tribes, women, children, rural and urban labour.

The experience and qualification of “other persons” mentioned in clause (b) shall be prescribed by the State Government in consultation with the Chief Justice of High Court.

v Cognizance of Pending Cases & Determination

(Sec 20 of the Act)

A. On Application:

(I) When all the parties to the case agree for referring the case to Lok Adalat, or

(ii) When one of the party to the case makes an application to court, praying to refer the case to Lok Adalat and the court is prima facie satisfied that there are chances for settlement

B. Suo Moto:

Where the court is satisfied that the matter is an appropriate one to be taken cognizance of, by the Lok Adalat. Then, the court shall refer the case to the Lok Adalat, after giving a reasonable opportunity for hearing to all the parties. Further, the Authority or Committee organising Lok Adalat may, on application from any party to a dispute, refer the said dispute to Lok Adalat, after giving a reasonable opportunity for hearing to all the parties.

-Lok Adalat shall proceed to dispose of a case refereed to it expeditiously.

- Shall be guided by principles of law, justice, equity and fair play.

- Shall yearn to reach a settlement or compromise between parties.

- When no compromise or settlement is accomplished, the case is to be returned to the court which referred it. Then the case will proceed in the court from the stage immediately before the reference.

v Passing of the Award

(Sec 21 of the Act)

-Every award of Lok Adalat shall be deemed to be a decree of a civil court.

-Every award shall be signed by all the parties to the dispute and the panel constituting the Lok Adalat.

-Every award shall form part of the judicial records.

-Every award shall be categorical and lucid.

-Every award shall be in the regional language or in English.

-A certified copy of the award will be given free of cost, to all the parties.

-Every award made by Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award.

-If a pending case is settled at Lok Adalat, any court fee already paid will be refunded as provided by the Court Fees Act, 1870.

v Powers of Lok Adalat

(Sec 22 of the Act)

(1) The Lok Adalat shall have the powers of a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters:-

(a) Power to summon and enforce the attendance of any witness and to examine him/her on oath.

(b) Power to enforce the discovery and production of any document.

(d) Power for requisitioning of any public record or document or copy thereof or from any court.

(e) Such other matters as may be prescribed.

(2) Every Lok Adalat shall have the power to specify its own procedure for the determination of any dispute coming before it.

(3) All proceedings before a Lok Adalat shall be deemed to be judicial proceedings within the meaning of Sections 193, 219 and 228 of IPC

(4) Every Lok Adalat shall be deemed to be a Civil Court for the purpose of Sec 195 and Chapter XXVI of Cr.P.C.

v Permanent Lok Adalat

(Hereinafter mentioned as ‘PLA’ - Chapter VI A of the Act)

-Chapter VI A was newly added by Amendment Act, 2002, introducing the concept of Permanent Lok Adalat.

-The Central or State Authorities may establish by notification, Permanent Lok Adalats at any place, for determining issues in connection to Public Utility Services.

-Public Utility Services include:

(1) Transport service,

(2) Postal, telegraph or telephone services,

(3) Supply of power, light and water to public,

(4) System of public conservancy or sanitation,

(5) Insurance services and such other services as notified by the Central or State Governments.

-PLAs have the same powers that are vested on the Lok Adalats, mentioned under Section 22(1) of the Act.

v Organisational Structure of Permanent Lok Adalat

(Section 22B (2) of the Act)

Chairman--

A person who is or has been a district Judge or Additional District Judge or has held judicial office higher in rank than that of a District Judge, shall be the Chairman.

Members---

Two other persons having adequate experience in Public Utility Service to be nominated by Central Government on the recommendation of Central Authority and by the State Government on the recommendation of the State Authority.

v Cognizance of Pending Cases by Permanent Lok Adalat

(Sec 22C of the Act)

1. Any party to a dispute can apply to PLA for settlement of a dispute in respect of a public utility service, which is not pending before any court.

2. PLA does not have jurisdiction to entertain disputes involving offences which are not compoundable.

3. PLA does not have jurisdiction to entertain a matter where the value of the property involved exceeds ten lakhs, which limit can be enhanced as provided for.

4. Once, an application is preferred to PLA for determination of a dispute, no party to such application can invoke the jurisdiction of any court in the same dispute.

v Procedure by Permanent Lok Adalat for Determination

(Sec 22C & 22D of the Act)

Where the PLA receives an application for determination of a dispute--

1. The PLA should direct each party to file before it a written statement stating therein, all the facts and the nature of the dispute, points or issues and the grounds in support or opposition. PLA may require the parties to file additional statements at any stage.

2. The party may also file any document or such other evidence, in proof of such facts and grounds urged.

3. The copy of the written statement and the documents or such other evidence filed has to be sent to the other parties to the application.

4. When the statement and additional statement and reply if any are filed, PLA shall conduct conciliation process between parties to the application, as it thinks fit, considering the circumstances of the dispute.

5. PLA should assist the parties in their attempt to reach an amicable settlement, in an independent and impartial manner. Every party is duty bound to co-operate in good faith, in the conciliation process.

6. If after the conciliation process, the PLA is of an opinion that there exists elements of settlement in such proceedings, which may be acceptable to the parties, PLA may formulate the terms of a possible settlement of the dispute and give it for the consideration of the parties. If the parties are agreeable to the same, they shall sign the same and PLA shall pass an award in terms of the settlement agreement.

7. If the parties are not agreeable to the settlement formulated, if the dispute is not an offence, then the PLA should decide the dispute on merits.

8. PLA shall, while conducting conciliation proceedings or deciding a dispute on merit, shall be guided by the principle of natural justice, objectivity, fair play, equity and other principles of justice.

9. The PLA, when deciding a dispute on merit, shall not be bound by the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872.

10.Every award made by the PLA shall be by the majority of the persons constituting the PLA.

11.The award rendered by PLA shall be deemed to be a decree of a civil court and shall be final. The PLA may transmit the award to the court having local jurisdiction for execution.

v Entitlement to Legal Services

(Section 12 of the Act)

Section 12 of the Legal Services Authorities Act, 1987 prescribes the criteria for giving legal services to the eligible persons. Section 12 of the Act reads as under:-

Every person who has to file or defend a case shall be entitled to legal services under this Act if that person is-

(i) A member of scheduled caste or schedule tribes;

(ii) A person whose annual income is not more than Rs.50,000/- for cases before Supreme Court and Rs. 25,000/- in other courts;

(iii) A person victim of trafficking in human beings or beggar;

(iv) Disabled, including mentally disabled;

(v) A woman or child;

(vi) A victim of mass disaster, ethnic violence, caste atrocities, flood, drought, earth quake, industrial disaster and other cases of undeserved want;

(vii) An industrial workman;

(viii) A person in custody including protective custody;

(ix) A person facing charge which might result in his imprisonment;

(x) A person unable to engage a lawyer and secure legal services on account of reasons such as poverty and indigence.

It has been provided under Article 39-A of the Constitution that- “It is the duty of the State to see that the legal system promotes justice on the basis of equal opportunity for all its citizens. It must therefore arrange to provide free legal aid to those who cannot access justice due to economic and other disabilities.”Under this concept the State has provided categories of persons who are entitled for legal services under this Act.

In (Khatri II Vs. State of Bihar, (1981) 1SCC) it has been held that the Constitutional duty to provide legal aid arises from the time the accused is produced before the Magistrate for the first time and continues whenever he is produced for remand.

In (M H Hoskot Vs. State of Maharastra (1978)3 SCC 544) it has been held that a person entitled to appeal against his/her sentence has the right to ask for a counsel, to prepare and argue the appeal. Section 304 of Criminal Procedure Code also provides that if the accused does not have sufficient means to engage a lawyer, the court must provide one for the defence of the accused at the expense of the state. Beside this The Magistrates and sessions judges must inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State.

In (Suk Das Vs. Union Territory of Arunachal Pradesh (1986) 2 SCC 401) it has been held that failure to provide legal aid to an indigent accused, unless it was refused, would vitiate the trial. It might even result in setting aside a conviction and sentence.

v When can Legal services be rejected-

(i) If the applicant has adequate means to access justice; or

(ii) He does not fulfil the eligibility criteria; or

(iii) He has no merits in his application requiring legal action.

v When can the legal services be withdrawn-

The legal services committee has the power to withdraw the legal aid/services granted to a person if-

(I). the aid is obtained through misrepresentation or fraud;

(II). any material change occurs in the circumstances of the aided person;

(III). there is misconduct, misbehaviour or negligence on the part of the aided person;

(IV). the aided person does not cooperate with the allotted advocate;

(V). the aided persons appoints another legal practitioner;

(VI). the aided person dies, except in civil cases;

(VII). the proceedings amount to misusing the process of law or of legal service.

v Cases for which legal aid is not available –

Cases in respect of defamation, malicious prosecution, contempt of court, perjury etc.

Proceedings relating to election;

Cases where the fine imposed is not more than Rs.50/-;

Economic offences and offences against social laws;

Cases where the person seeking legal aid is not directly concerned with the proceedings and whose interests will not be affected, if not represented properly.

v Whom to approach for free legal aid---

The person who needs free legal aid can approach the Legal Services Authority at any level- national, state, district or taluq. The request can be made to:

the Senior Civil judge nominated as the chairperson of the Mandal/Taluq Legal the Secretary, District Legal Services Authority at the district level;

the Secretary, High Court Legal Services Committee at the state level;

the Secretary, Supreme Court Legal Services Committee at the higher level;

the member secretary of the state legal services authority;

the magistrate before whom she/he is produced; or the custodial authorities, if under detention.

v How to Approach?

- A written application can be made to the concerned authority

– Where the person cannot read or write, the legal services authority will record his/her statement along with thumb impression. Such a statement is treated as an application.

– The person who claims legal aid has to file an affidavit of his income.

Steps involved in the process: The eligibility criteria and the merits of the case are examined. If the application for legal aid is rejected, reasons shall be duly recorded and also informed to the applicant.

One important condition is that both parties in dispute should agree for settlement through Lok Adalat and abide by its decision. A Lok Adalat has the jurisdiction to settle, by way of effecting compromise between the parties, any matter which may be pending before any court, as well as matters at prelitigation stage i.e. disputes which have not yet been formally instituted in any Court of Law. Such matters may be civil or criminal in nature, but any matter relating to an offence not compoundable under any law cannot be decided by the Lok Adalat even if the parties involved therein agree to settle the same.

The award passed by the Lok Adalat is the decision of the court itself though arrived at by the simpler method of conciliation instead of the process of arguments in court. The most important factor to be considered while deciding the cases at the Lok Adalat is the consent of both the parties. It can not be forced on any party that the matter has to be decided by the Lok Adalat. However, once the parties agree that the matter has to be decided by the Lok Adalat, then any party cannot walk away from the decision of the Lok Adalat. During the last few years Lok Adalat has been found to be a successful tool of alternate dispute resolution in India. It is most popular and effective because of its innovative nature and inexpensive style. The system received wide acceptance not only from the litigants, but from the public and legal functionaries in general.

Therefore, it may be concluded that the system of Lok Adalat and giving free legal aid to eligible persons is a very noble one which has helped judiciary not only in speedy disposal of cases but has given some relief to the litigant, particularly to them who are poor and cannot afford to claim their right through court of law.

NEED FOR LOK ADALATS

Justice Ramaswamy says: “ Resolving disputes through Lok Adalat not only minimizes litigation expenditure, it saves valuable time of the parties and their witnesses and also facilitates inexpensive and prompt remedy appropriately to the satisfaction of both the parties”

Law Courts in India face mainly four problems:
· The number of courts and judges in all grades are alarmingly inadequate
· Increase in flow of cases in recent years due to multifarious Acts enacted by the Central and State Governments
· The high cost involved in prosecuting or defending a case in a court of law, due to heavy court fee, lawyer's fee and incidental charges
· Delay in disposal of cases resulting in huge pendency in all the courts.

Lok Adalat has a positive contributory role in the administration of justice. It supplements the efforts and work of the courts. Area of contribution chosen for the purpose specially concerns and helps the common man, the poor, backward and the needy-most sections of the society.

ADVANTAGES OF LOK ADALATS

On the basis of study of concept and nature of Lok Adalat following are the striking advantages of the Lok Adalat system-

1. There is no court fee and if the court fee is already paid at the time of institution of the case such amount will be refunded to the concerned party if the dispute is resolved by the Lok Adalat. The dispute are settled without bearing any expenses by the parties.

2. Lok Adalats are empowered to settles the both kind of matters which are already pending before courts and which are at pre-litigation stage. The parties have an oportunity to bring the dispute before this institution at any time irrespective of whether the case is instituted in the court of law or not.

3. The procedure followed by Lok Adalat is simple, flexible , non-technical and informal. There is no strict application of procedural laws like Civil Procedure Code and Evidence Act while determining the claims of the parties by Lok Adalat.

4. The lawyers are not essential to be appeared during the conciliation process of Lok Adalat. However, they can assist the Lok Adalat in its proceeding by helping the parties to understand contentious issues and available alternatives and can persuade them to arrive at a settlement of the dispute.

5. It dispenses justice to the disputants through collaborative and participatory efforts of lawyers, law teachers, judges, administrative authorities and social workers who actively participate in the resolution of the dispute by discussion, counselling, persuasion, conciliation and humane approach.

6. Lok Adalat provides justice speedily to the parties, generally, when it resolve the cases in a single day. In this sense it helps to reduce the huge arrears in courts of law.

7. The award of Lok Adalat is final and binding. There are no further appeals, revisions or review applications. Therefore, the dispute ordinarily comes to an end.

8. The Lok Adalat system helps to create awareness among the people about their rights and duties mentioned in numerous social and welfare legislations. Lok Adalats are organised at various places such as villages, slum areas, industrial areas, labour colonies, towns and in jails, etc. In this way, it takes justice at the door-steps of the people.

9. The Lok Adalat settle the dispute on the basis of compromise and in the spirit of 'give and take'. Thus, there is neither a victor nor a vanquished and both the contestants are gainers and winners. They leave the premises smiling with no rancour or ill feeling for the other which ultimately leads to happiness and well being of the society. So, the drive behind the Lok Adalat is the roused consciousness of the community to prevent disruption of local unity and to secure substantial equity and social justice, in a mood of human solidarity.

CURRENT STATUS

In recent time the concept of Lok Adalat has gained popularity. Prison Lok Adalat, Provident Fund Lok Adalat, Labour Law Adalat, etc., are organised to settle disputes, and naturally many may be curious to know that what is Lok Adalat. Lok Adalat means Peoples’ court, in contrast to the regular law courts established by the government. Despite the fact that the judicial system in India is well organised with high level of integrity, the law courts are confronted with four main problems:

1. The number of courts and judges in all grades are alarmingly inadequate;

2. Increase in flow of cases in recent years due to multifarious Acts enacted by the Central and State government;

3. The high cost involved in prosecuting or defending a case in a court of law, due to heavy court fee, lawyer’s fee and incidental charges and

4. Delay in disposal of cases resulting in huge pendency in all courts.

Some statistics may give us a feeling of tremendous satisfaction and encouragement. Up to the middle of the year 2004, more than 200,000 Lok Adalats have been held and therein more than 16 million cases have been settled, half of which were motor accident claim cases. More than One Billion US dollars were distributed by way of compensation to those who had suffered accidents. 6.7 million Persons have benefited through legal aid and advice.

About 90% of the cases filed in the developed countries are settled mutually by conciliation, mediation etc. and as such, only 10% of the cases are decided by the Courts there. In our country, which is developing, has unlike the developed countries, number of Judges disproportionate to the cases filed and, hence, to alleviate the accumulation of cases, the Lok Adalat is the need of the day.

CONCLUSION

We must remember that the Lok Adalats are not substitutes for existing courts. Lok Adalat lends itself to easy settlement of money claims; there is scope for other disputes as well. Partition suits damages and matrimonial cases can be easily settled before Lok Adalat as the scope for compromise through an approach of give and take is high in these cases. In Lok Adalat justice is dispensed summarily without too much emphasis on legal technicalities. It has to be a very effective alternative to litigation. Lok Adalat is a boon to the litigant public, where they can get their dispute settled faster and at free of cost. Experience has shown that it’s one of the efficient and important ADR and most suited to the Indian environment, culture and social interests. Objective of Lok Adalat is to settle the disputes which are pending before the courts, by negotiations, conciliation and by adopting persuasive common sense and human approach to the problems of the disputants. The large population of India and the illiterate masses have found the regular dispensation of justice through regular courts very cumbersome and ineffective. The special condition prevailing in the Indian society and due to economic structure, highly sensitized legal service is required which is efficacious for the poor and the ignorant masses. The Lok Adalat movement is no more an experiment in India. It’s now a success and needs to be replicated in certain matters. It properly, thoughtfully, and wisely constituted, Lok Adalats can become an additional arm of existing judicial institution, and moreover, if the process of accumulation of arrears is reversed and there is less burdening, its qualitative performance can improve.

Hence, the study reveals that the Lok Adalat system is people oriented and people supported mechanism which has received wide support from different sections of the society. Due to, its features, it has not only resulted in lessening the workload of our regular courts but has also provided efficacious justice to those who cannot afford to fight the costly legal battle for the assertion and protection of their rights under the prevailing justice delivery mechanism. Therefore, the forum of Lok Adalat deserves to be strengthened, developed for preventing litigation, ending the pending litigation and ultimately forming the Lok Adalat a peace-making and peacekeeping institution so that it may play a significant role in development of country.

Lok Adalats serve very crucial functions in a country due to many factors like pending cases, illiteracy etc. The Lok Adalat was a historic necessity in a country like India where illiteracy dominated about all aspects of governance. The most desired function of lok adalats may seem to be clearing the backlog, with the latest report showing 3 crore pending cases in Indian courts but the other functions cannot be ignored. The concept of Lok Adalat has been a success in practice.

Lok Adalats play a very important role to advance and strengthen “equal access to justice”, the heart of theConstitution of India, a reality. This Indian contribution to world ADR jurisprudence needs to be taken full advantage of. Maximum number of Lok Adalats need to be organized to achieve the Gandhian Principle of Gram Swaraj and “access to justice for all”.

Feminist legal theory

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Feminist Legal Theory

Feminist legal theory is based on the belief that the law has been fundamental in women's historical subordination. The project of feminist legal theory is twofold. First, feminist jurisprudence seeks to explain ways in which the law played a role in women's former subordinate status. Second, feminist legal theory is dedicated to changing women's status through a reworking of the law and its approach to gender.

Feminist activists campaign for women's rights – such as in contract law, property, and voting – while also promoting bodily integrity, autonomy, and reproductive rights for women. Feminist campaigns have changed societies, particularly in the West, by achieving women's suffrage, gender neutrality in English, equal pay for women, reproductive rights for women (including access to contraceptives and abortion), and the right to enter into contracts and own property. Feminists have worked to protect women and girls from domestic violence, sexual harassment, and sexual assault. They have also advocated for workplace rights, including maternity leave, and against forms of discrimination against women. Feminism is mainly focused on women's issues, but author Bell Hooks and others have argued that, since feminism seeks gender equality, it must necessarily include men's liberation because men are also harmed by sexism and gender roles

MEANING OF FEMINISM AND IT’S VARIOUS LEGAL THEORIES:

Feminism is a collection of movements and ideologies aimed at defining, establishing, and defending equal political, economic, cultural, and social rights for women. This includes seeking to establish equal opportunities for women in education and employment. A feminist advocates or supports the rights and equality of women.^[3]

Feminist theory, which emerged from feminist movements, aims to understand the nature of gender inequality by examining women's social roles and lived experience; it has developed theories in a variety of disciplines in order to respond to issues such as the social construction of sex and gender. Some of the earlier forms of feminism have been criticized for taking into account only white, middle-class, educated perspectives. This led to the creation of ethnically specific or multiculturalist forms of feminism.

The four main strands of feminist jurisprudence

1. Liberal Feminism: Liberal feminism is not a strand of feminism so much as it is liberalism applied to women. Liberal feminists believe that laws, rights and freedoms should apply in the same way to men and women. It is associated with ideas of formal equality and equality of opportunity.

2. Radical feminism: Radical feminists believe that sex differences (i.e. differences between men and women) are more important than any other personal identity (i.e. social class, race or ethnicity). They embrace the idea of an essential sex difference and seek to explore repressed aspects of women's culture, values etc. Catherine Mackinnon is commonly associated with radical feminism. She has argued that the law in general, and traditional legal theory, is 'male' and that legal reasoning enforces men's domination over women. She wishes to invert this. Radical feminists believe that the rule of law and the values of gender neutrality, objectivity and formal equality mask the fact that they will always disadvantage women - i.e. the law on provocation as a defence to murder is shaped around male experiences of violence, not female (this can be a major problem, especially in relation to cases where a woman has been subject to domestic violence and kills her partner). Radical feminists argue for changes in the law and special treatment to deal with the inequalities of power, especially with regards to pornography, sexual harrassment and rape.

3. Post Modern Feminism: Post modern feminists engage with the philosophical rejection of grand theories, such as those within traditional jurisprudence. They are instead concerned with multiple identities and subjectivities. Post modern feminists are interested in the socio-legal construction of legal subjects and the categories of sex and gender, masculinity and feminity. Post modern feminists are concerned with the law's role in constructing, underpinning and maintaining sex and gender. They are interested in discourse and deconstruction - i.e. taking apart how theories are constructed and developed.

4. Cultural Feminism: Cultural feminism shares many commonalities with post modern feminism. Their focus is on the celebration of women's difference. They wish to move beyond standard 'rule of law' values, such as gender neutrality and formal equality (unlike liberal feminists), and are concerned with questioning the very idea of gender neutrality. Like post modern feminists, cultural feminists are also concerned with the construction of the legal subject (i.e. is it useful to have equality in respect of familial relationships, or should we use a different approach based on the different experiences of men's and women's - and other women's - lives?). Cultural feminists are also interested in the way that they law may implicitly reflect a male point of view, for example in the law of provocation, rape, or the 'reasonable man' test. They are also interested in the effect of the constitution of the legal subject as male (e.g. the 'reasonable man' - if judges can't imagine women unless stripped of their gender, we need to address this). Cultural feminists are also interested in critiquing legal methods and values as male, and argue for a contextualised approach to the law.

THE INTERRELATIONSHIP BETWEEN FEMINIST LEGAL THEORY

AND FEMINIST LAWMAKING

During the century preceding the 1960s, there had been substantial efforts to change the law respecting women's rights in the United States. The women's suffrage movement fought for inclusion of sex in the text of the Fourteenth Amendment; Myra Bradwell fought for the right to be admitted to the bar under the Privileges and Immunities Clause of the Fourteenth Amendment; many litigants and lawyers sensitive to issues of sex discrimination raised legal issues concerning women's equality; and a major and finally successful effort to pass the Nineteenth Amendment to the Constitution gave women the right to vote.

In India...

In the 1960s, a "second wave" of an active women's rights movement developed from the civil rights struggle, leading to renewed efforts both to change the law so as to abolish sex discrimination and to reshape the legal profession so as to integrate women within it.

This effort, led by a new generation of women's rights attorneys, manifested the interrelationship of theory and practice.

The litigation efforts that followed, which posed issues of equal protection in a host of are as such as Social Security, pregnancy discrimination, and parental leave, as well as activist efforts around the Equal Rights Amendment, raised important arguments about the nature of gender which laid the foundation for feminist legal theory. Although the presence of women teachers in the law schools had a huge impact in mobilizing, energizing, and supporting a younger generation of women entering the legal profession to do this work, the theories of equality and the federal Equal Rights Amendment emerged primarily from the practical demands of activist efforts at lawmaking.

Today, feminist legal theory has evolved into four major schools:

formal equality theory, "cultural feminism," dominance theory, and post-modem or anti-essentialist theory.13 Formal equality theory, grounded in liberal democratic thought, argues that women should be treated the same as men, while cultural feminists emphasize the need to take account of "differences" between men and women. Dominance theory sidesteps both of these approaches, focusing instead upon the embedded structures of power that make men's characteristics the norm from which "difference" is constructed. Anti-essentialism, by contrast, contends that there is no single category "female," pointing instead to the varying perspectives resulting, for example, from the intersection of gender, race and class. The last three ap-proaches are all "theoretical" critiques of formal equality which emerged from the contradictions and political struggles that developed in the course of efforts to implement formal equality in practice and addressed the limits of formal equality in redressing sex discrimination.

The emergence of cultural feminism or "difference" perspectives in the law were largely shaped by efforts to understand the uniquely female experiences of pregnancy and motherhood. For example, the historical failure of the Supreme Court's equality jurisprudence to address

issues of pregnancy as implicating issues of gender equality 4 had an enormous impact on women's lives and the law. In response,

the Pregnancy Discrimination Act of 1978 defined pregnancy discrimination

as sex discrimination under Title VII 15 and generated renewed attention to the notion of "difference" in a variety of contexts.

In contrast, dominance theory presented an important theoretical framework within which to understand the harms of violence against women in areas such as domestic violence, rape, sexual harassment, and pornography. Formal equality (or at least a "gender complementarity" theory of formal equality) was not adequate to analyze these harms, experienced almost exclusively by women, because it failed to address the patriarchal structures of power that led to and perpetuated them. Thus, dominance theory emerged from efforts to grapple with the reality and experience of male dominance and privilege in

these areas. Finally, anti-essentialist or post-modern feminism developed from challenges to a notion of a single feminist legal theory and perspective and articulated the need to account for the wide range of feminist perspectives that emerged from women of color, issues of ethnicity, problems of immigrant women, and cultural differences. 16 For example,

Kimberl6 Crenshaw criticizes feminist legal theory's failure to reflect African American women's experience of rape, 7 while Paulettediscrimination that is motivated by both sex and race. 8 This approach has emphasized the importance of storytelling, both as a way to bring diverse experiences into the law and as a way to broaden the legal descriptions of experience that are translated into law. 9 This theoretical perspective challenges us to address the intersections of race, gender, ethnicity, class, sexual orientation, age, and disability, as well as to explore what commonality might mean in coalition efforts. It also challenges us to move beyond the telling of stories to more substantive change.

There are many examples of how the spiral from practice to theory and back to practice has operated. For example, feminist practice efforts to argue pregnancy as an issue of gender equality led to both practical law reform strategies such as the Pregnancy Discrimination

Act and feminist legal scholarship on these issues. A variety of perspectives

were developed by Sylvia Law,20 Herma Hill Kay,2' Wendy Williams,2 and Lucinda Finley,' among others, and were reflected in public disagreement and debate in the "Cal Fed" case, in which feminist groups filed opposing briefs about whether pregnancy disability should be given "special" treatment not afforded to other temporary disabilities.24In short, feminist legal theory has highlighted the issue of gender in law, and the range of feminist legal theories that have developed continue

to deepen our understanding of the complex interrelationship between gender and law. But it is important to appreciate the critical way in which feminist legal theory emerged from practice, and the way in which new theoretical insights formulated by litigators and academics

continue to reshape practice. Indeed, feminist legal theory, understood generically, has been the intellectual means for argument and debate about issues of equality that first emerged in law reform practice and continue to resonate both in practice and in the world at large.

This interrelationship is inevitable because the worlds of theory and practice in this area of the law are inextricably linked. An unusual number of feminist legal theorists and academics have a background in practice, particularly on issues of gender.' Many continue to work as scholar-activists and cultural commentators on a range of issues affecting gender and law-as lawyers arguing cases, drafting legislation, writing amicus briefs, serving as reporters to state and federal task forces, or commenting to the media-or have moved among these roles at different periods of their professional lives.

Theory and practice are also inextricably linked in this area because of the close proximity between issues of life and law. Anita Hill's challenge to Clarence Thomas's Supreme Court appointment, for example, highlighted more than a decade of litigation and scholarship on sexual harassment and resulted, in turn, in the further refinement of feminist theory. 7 The O.J. Simpson case brought similar work on doifmestic violence and intimate femicide to public attention and, in turn, generated feminist analysis.' Current debates concerning President Clinton, Paula Jones, and Monica Lewinsky again bring issues of feminist"theory" to the fore. In short, feminist practice and theory concern issues of daily life-how women and men live, work, and relate.

These real-life issues engage and galvanize public attention and then generate law reform efforts, such as the effort to educate Congress about sexual harassment in the Clarence Thomas confirmation hearings,

which in turn generate more theory. And the spiral continues, as, for example, the tremendous amount of sexual harassment litigation that arose after the Hill-Thomas hearings led to the Supreme Court's series of decisions in 199829 and resulted in richer and more nuanced theoretical exploration among feminist legal scholars.

Nineteenth and early twentieth centuries

First-wave feminism was a period of activity during the nineteenth century and early twentieth century. In the UK and US, it focused on the promotion of equal contract, marriage, parenting, and property rights for women. By the end of the nineteenth century, activism focused primarily on gaining political power, particularly the right of women's suffrage, though some feminists were active in campaigning for women's sexual, reproductive, and economic rights as well.

Women's suffrage began in Britain's Australasian colonies at the close of the 19th century, with the self-governing colonies of New Zealand granting women the right to vote in 1893 and South Australia granting female suffrage (the right to vote and stand for parliamentary office) in 1895. This was followed by Australia granting female suffrage in 1902.

In Britain the Suffragettes and the Suffragists campaigned for the women's vote, and in 1918 the Representation of the People Act was passed granting the vote to women over the age of 30 who owned houses. In 1928 this was extended to all women over twenty-one. Emmeline Pankhurst was the most notable activist, with Time naming her one of the 100 Most Important People of the 20th Centurystating: "she shaped an idea of women for our time; she shook society into a new pattern from which there could be no going back." In the U.S., notable leaders of this movement included Lucretia Mott, Elizabeth Cady Stanton, and Susan B. Anthony, who each campaigned for the abolition of slavery prior to championing women's right to vote. These women were influenced by the Quaker theology of spiritual equality, which asserts that men and women are equal under God. In the United States, first-wave feminism is considered to have ended with the passage of the Nineteenth Amendment to the United States Constitution (1919), granting women the right to vote in all states. The term first wave was coined retroactively to categorize these western movements after the term second-wave feminism began to be used to describe a newer feminist movement that focused as much on fighting social and cultural inequalities as political inequalities.

During the late Qing period and reform movements such as the Hundred Days' Reform, Chinese feminists called for women's liberation from traditional roles and Neo-Confucian gender segregation. Later, the Chinese Communist Party created projects aimed at integrating women into the workforce, and claimed that the revolution had successfully achieved women's liberation.

According to Nawar al-Hassan Golley, Arab feminism was closely connected with Arab nationalism. In 1899, Qasim Amin, considered the "father" of Arab feminism, wrote The Liberation of Women, which argued for legal and social reforms for women. He drew links between women's position in Egyptian society and nationalism, leading to the development of Cairo University and the National Movement. In 1923 Hoda Shaarawi founded the Egyptian Feminist Union, became its president and a symbol of the Arab women's rights movement.

The Iranian Constitutional Revolution in 1905 triggered the Iranian women's movement, which aimed to achieve women's equality in education, marriage, careers, and legal rights. However, during the Iranian revolution of 1979, many of the rights that women had gained from the women's movement were systematically abolished, such as the Family Protection Law.

In France, women obtained the right to vote only with the Provisional Government of the French Republic of 21 April 1944. The Consultative Assembly of Algiers of 1944 proposed on 24 March 1944 to grant eligibility to women but following an amendment byFernand Grenier, they were given full citizenship, including the right to vote. Grenier's proposition was adopted 51 to 16. In May 1947, following the November 1946 elections, the sociologist Robert Verdier minimized the "gender gap," stating in Le Populaire that women had not voted in a consistent way, dividing themselves, as men, according to social classes. During the baby boom period, feminism waned in importance. Wars (both World War I and World War II) had seen the provisional emancipation of some, individual, women, but post-war periods signaled the return to conservative roles.

Mid-twentieth century

By the mid 20th century, in some European countries, women still lacked some significant rights. Feminists in these countries continued to fight for voting rights. In Switzerland, women gained the right to vote in federal elections only in 1971,[48] and in the canton of Appenzell Innerrhoden women obtained the right to vote on local issues only in 1991, when the canton was forced to do so by the Federal Supreme Court of Switzerland.[49] In Liechtenstein, women were given the right to vote in 1984 by Liechtenstein women's suffrage referendum, 1984. Three prior referendums held in 1968, 1971 and 1973 had failed to secure women's right to vote.

Feminists continued to campaign for the reform of family laws which gave husbands control over their wives. Although by the 20th centurycoverture had been abolished in the UK and the US, in many continental European countries married women still had very few rights. For instance, in France married women received the right to work without their husband's permission in 1965.[50][51] Feminists have also worked to abolish the "marital exemption" in rape laws which precluded the prosecution of husbands for the rape of their wives.[52] Earlier efforts by first wave feminists such as Voltairine de Cleyre, Victoria Woodhull and Elizabeth Clarke Wolstenholme Elmy to criminalize marital rape in the late 19th century had failed,[53][54] this was only achieved a century later in most Western countries, but is still not achieved in many other parts of the world.[55]

French philosopher Simone de Beauvoir provided a Marxist solution and an existentialist view on many of the questions of feminism with the publication of Le Deuxième Sexe (The Second Sex) in 1949.[56] The book expressed feminists' sense of injustice. Second-wave feminism is a feminist movement beginning in the early 1960s[57] and continuing to the present; as such, it coexists with third-wave feminism. Second wave feminism is largely concerned with issues of equality other than suffrage, such as ending discrimination.[29]

Second-wave feminists see women's cultural and political inequalities as inextricably linked and encourage women to understand aspects of their personal lives as deeply politicized and as reflecting sexist power structures. The feminist activist and author Carol Hanisch coined the slogan "The Personal is Political", which became synonymous with the second wave.[9][58]

Second and third-wave feminism in China has been characterized by a re-examination of women's roles during the communist revolution and other reform movements, and new discussions about whether women's equality has actually been fully achieved.[42]

In 1956, President Gamal Abdel Nasser of Egypt initiated "state feminism", which outlawed discrimination based on gender and granted women's suffrage, but also blocked political activism by feminist leaders.[59] During Sadat's presidency, his wife, Jehan Sadat, publicly advocated further women's rights, though Egyptian policy and society began to move away from women's equality with the new Islamist movement and growing conservatism.[60] However, some activists proposed a new feminist movement, Islamic feminism, which argues for women's equality within an Islamic framework.[61]

In Latin America, revolutions brought changes in women's status in countries such as Nicaragua, where feminist ideology during the Sandinista Revolution aided women's quality of life but fell short of achieving a social and ideological change.[62]

Late twentieth and early twenty-first centuries

Third-wave feminism

In the early 1990s in the USA, third-wave feminism began as a response to perceived failures of the second wave and to the backlash against initiatives and movements created by the second wave. Third-wave feminism distinguished itself from the second wave around issues of sexuality, challenging female heterosexuality and celebrating sexuality as a means of female empowerment.[63] Third-wave feminism also seeks to challenge or avoid what it deems the second wave's essentialist definitions of femininity, which, they argue, over-emphasize the experiences of upper middle-class white women. Third-wave feminists often focus on "micro-politics" and challenge the second wave's paradigm as to what is, or is not, good for women, and tend to use a post-structuralist interpretation of gender and sexuality.[29][64][65][66] Feminist leaders rooted in the second wave, such asGloria Anzaldúa, bell hooks, Chela Sandoval, Cherríe Moraga, Audre Lorde, Maxine Hong Kingston, and many other non-white feminists, sought to negotiate a space within feminist thought for consideration of race-related subjectivities.[65][67][68] Third-wave feminism also contains internal debates between difference feminists, who believe that there are important differences between the sexes, and those who believe that there are no inherent differences between the sexes and contend that gender roles are due to social conditioning.[69]

Post-feminism

The term post-feminism is used to describe a range of viewpoints reacting to feminism since the 1980s. While not being "anti-feminist", post-feminists believe that women have achieved second wave goals while being critical of third wave feminist goals. The term was first used to describe a backlash against second-wave feminism, but it is now a label for a wide range of theories that take critical approaches to previous feminist discourses and includes challenges to the second wave's ideas.[72] Other post-feminists say that feminism is no longer relevant to today's society.[73] Amelia Jones has written that the post-feminist texts which emerged in the 1980s and 1990s portrayed second-wave feminism as a monolithic entity.[74] Dorothy Chunn notes a "blaming narrative" under the postfeminist moniker, where feminists are undermined for continuing to make demands for gender equality in a "postfeminist" society, where "gender equality has (already) been achieved." According to Chunn, "many feminists have voiced disquiet about the ways in which rights and equality discourses are now used against them."[75]

Criticisms of liberal and radical feminism

1. Liberal Feminism: Liberal feminism has been described as 'too individualistic' - it ignores structural and systemic patterns of exclusion and disadvantage which contribute to women's subordination. For example, a woman might be unable to make partner in a law firm because she is unable to take clients out for late night drinks - liberal feminists would explain this away as the product of individual choice. Liberal feminism has also been criticised for ignoring the extent to which social and political institutions (i.e. the family) shape individual preferences, attitudes and choice - it relies on a pre-social conception of the individual. It may also be criticised because it rests on liberal conceptions of freedom (i.e. freedom from unnecessary intervention by the state) and fails to take into account positive provision of goods and services, such as childcare.

Radical feminists have questioned liberal feminist's assertion that legal subjects can be constructed as gender-neutral - because women have been defined as 'different' by men, they say that equality arguments cannot succeed in obtaining justice for women. Post modern feminists have criticised liberal feminism's attempt to assimilate women to a standard set for men, by men - why should women aspire to a male norm, especially if we don't even know if the norm is right for men? Liberal feminism has also been critiqued by cultural feminists because the equality of rights approach fails to take account of the social, economic and cultural context, and the relationships between the individual and others which may harm their abilities to exercise their rights. Instead, liberal feminism focuses on the assumption of an individual asserting their rights against the competing and conflicting rights of others.

The final criticism of liberal feminism (and possibly the most important) is that it relies on the liberal political view of a distinction between the public and private spheres - if women are more commonly associated with the private sphere, they are not inside the public sphere of state intervention. For example, the problems of rape and domestic violence were very late to come on to the political agenda for this reason.

2. Radical feminism: Radical feminism may be criticised because it assumes a commonality of experience shared between all women regardless of differences (class, ethnicity, sexuality, disability etc.). Those who cannot identify with the common feeling may feel excluded. Also, some women have more access to 'male power' than others - a middle class woman will have more access to the legal process than a working class woman. Radical feminists see male power and dominance as near-perfect because of it's institutionalisation through law, etc. If this is the case, how can women ever transcend it? They have also been criticised for denying women's subjectivity and ability to speak about their experiences if they don't tie with radical feminism. Again, the final criticism of radical feminism is also possibly the most important one - radical feminists aim to replace male grand theory with female grand theory, but this will lead to falling in to similar traps of exclusion and marginalisation - is it worth replacing one abstract of law with another?

CONCLUSION

As we have shown, the interrelationship between feminist legal theory and legal practice is complex and striking. The interaction appears in the very genealogy of feminist legal theory, as practitioners grappled with women's legal problems and sought new substantive legal solutions for them. In this crucible, feminist legal theory was born and developed into the variety of more nuanced theories that exist today. Similarly, an active dialogue arose among feminist practitioners and theorists about the nature of the legal profession because they were confronted with the problems women encountered in the practice of law. This dialogue led to a flowering of theory when the formal equality approach that brought down the initial barriers to entry into the profession proved inadequate to address the continuing obstacles women lawyers faced, both informal and structural. Theories of feminist lawyering developed, largely out of cultural feminist approaches, and a critique of legal practice, heavily influenced by dominance feminism's challenge to the rules and structures taken as definitional of the profession. At the same time, feminist practitioners accumulated evidence about problems, lobbied for changes, and experimented with different ways in which to structure their own practice of law. In short, the interrelationship between theory and practice has generated and enriched feminist legal theory, resulted in innovative feminist lawmaking efforts, and produced important critiques of the legal profession.

The Female Body and the Law strives to move the focus of femrinist discussion away from sameness/difference and dominance/subordination to a pluralist, multiple, and open-ended notion of "differences." Although Eisenstein is not entirely successful in this regard, the care and attention she devotes to the question of sexual equality, her attempts to disentangle intricate philosophical problems, and the visionary glimpse she provides of a radically egalitarian world are all to be applauded.

Unfortunately, how we are to bring about this "equality that recognizes the richness of differences" (p 206) remains unclear. Eisenstein ultimately concedes that for the present, we must work within the confines of liberal law to achieve our goals, balancing "specificity" or "similarity"

approaches depending upon the circumstance: We are going to feel weary in this domain" (p 221), Eisenstein acknowledges, but perhaps we would feel less so if her analyses were themselves more tangible and straightforward. To those already familiar

Fundamental Rights as a limitation to state powers

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Fundamental Rights as a limitation to state powers

1 Introduction

The Fundamental Rights are laid down in the Part III of the Indian Constitution and is considered as one of the integral part of Indian Constitution. The Fundamental Rights are the rights guaranteed by the constitution to the people of the country and are defined as the basic human freedoms which every individual has a right to enjoy for a proper and harmonious development of personality. The concept of Fundamental Rights is mainly derived from four declarations. This chapter of the Constitution of India has been described as the Magna Carta of India. As early as 1214 the English people exacted an assurance from King John for respect of the then ancient liberties. The Magna Carta is the evidence of their success which is a written document. This is the first written document relating to the fundamental rights of citizens. Thereafter from time to time the King had to accede to many rights to his subjects. In 1689 the Bill Of Rights was written consolidating all important rights and liberties of the English people. In France Declaration of Rights of Man and the Citizen (1789) declared the natural, inalienable and sacred rights of Man. Following the spirit of the Magna Carta of the British and the Declaration of the Rights of Man and the Citizen of France, the Americans incorporated the Bill of Rights in their Constitution.

These rights find their origin in many places such as England Bill of Rights, United States Bill of Rights and France Declaration of Bill of Rights of Man. The framing of Indian Constitution can be best known by browsing transcripts of Constituent Assembly debate. The Constituent Assembly was composed of members elected from various British Indian Provinces and nominated by the princely states. The framers if Indian Constitution had three things in mind – ensuring unity, democracy and creating social revolution. The Constitution of India took nearly three years in its formation and finally came into force on 26th January 1950.

The biggest challenge before the Constituent Assembly was to evolve a document that would address the diversity amongst the population, create accountable governance and an independent republic. The development of fundamental human rights in India was due to exposure of students to the ideas of democracy, working of parliamentary democracy and British political parties and was also inspired by the :-

• England Bill of Rights

• Us Bill of Rights

• France Declaration of the Rights of Man and

• Development of Irish Constitution.

The inclusion of a set of Fundamental Rights had its genesis in the forces that operated in the national struggle during British rule. Ms. Annie Besant described the Constitution of India Bill as ‘home rule bill’ in 1985. This bill envisaged for India a constitution guaranteeing to every of her citizen freedom of expression , inviolability of ones house, right to property, quality before law and in regard to public offences right to present claims, petition and complains and rights to personal liberty. The Indian National Congress at its Bombay session in August 1918 demanded the inclusion of declaration of rights of the people of India as the British citizens in the new Government of India Act. The Declaration Included amongst other things guarantees in regard to equality before the law, protection in respect to liberty, life and property, freedom of speech and press and right of association. In its December 1918 session the Indian National Congress passed another resolution demanding for immediate repeal of all the laws, regulations and ordinances restricting all the laws, regulations and ordinances restricting the free discussion of political questions and conferring to the executive the power to arrest, detain or arrest any British subject in India outside the process o f ordinary civil or criminal law. The Common Wealth of India Bill finalized by the National Convention of 1925 embodied a specific declaration of rights. The resolution passed by Indian National Congress in 1927 at its Madras Session lay down that the declaration of Fundamental Rights should be the basis of future Constitution of India. The problems faced by the minorities in India further strengthened the argument.

The Nehru Committee observed that the first care should be to have Fundamental Rights guaranteed in such a manner which will not permit its withdrawal under any circumstances. The Indian Statutory Commission refused to enumerate and guarantee the demand of Fundamental Rights in the Constitution Act. Their refusal was based on Simons Commission argument that abstract definition of such rights is useless unless there existed the will and means to make them effective. The Indian National Congress at its Karachi session in 1931 again demanded for a written guarantee for Fundamental Rights in any future Constitutional setup in India. This demand was also emphasized at the round table conference at London. A memorandum circulated by the Mahatma Gandhi at the second session of round table conference demanded that the new constitution should include a guarantee to the communities concerned to the protection of their cultures, language, scripts, profession, education and practice of religion and religious endowments and protect personal laws and protection of other rights of minority communities. The Joint Select Committee of the British Parliament did not accept the demand for the constitutional guarantee of Fundamental Rights to British subjects in India. The Committee observed that:-

….there are also strong practical arguments against the proposal which may be put in the form of a dilemma: for either the declaration of rights is of so abstract a nature that it has no legal effect of any kind or its legal effect will be to impose an embarrassing restrictions on the powers of the legislatures and to create a grave risk that a large number of laws will be declared invalid or inconsistent with one or other of the rights so declared….There is this further objection that the state has made it abundantly clear that no declaration of fundamental rights is to apply to state territories and it would be anomalous if such a declaration had legal force in part only of the area of the federation.

The committee conceded that there were some legal principles which could approximately be incorporated in the new constitution. Accordingly sections 295, 297-300 of Government of India Act 1935 conferred certain rights and forms of protection on British subjects in India.

By the Objective Resolution adopted on January 22, 1947 the constituent assembly solemnly pledged itself to draw up for future governance a constitution wherein “shall be guaranteed and secure to all the people of India justice, social, economical and political, equality of status, of opportunity and before the law : freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality” and wherein adequate safeguards would be provided for minorities, backward and tribal areas and depressed and other classes. Two days after the adoption of the resolution the assembly elected Advisory Committee for reporting on minorities fundamental rights and on the tribal and excluded areas. The advisory committee in turn constituted on Feb27, 1947 five sub-committees which would deal with fundamental rights.

The sub committee on Fundamental Rights at its first meeting on February 27, 1942 had before it proposal of B.N.Rau to divide Fundamental Rights into two classes i.e. justifiable and non-justifiable.

An important question that faced the sub committee was that of distributing such rights between the Provincial, the Group and the Union Constitution. In the early stages of its deliberation the sub committee proceeded on the assumption of this distribution and adopted certain rights as having reference only to union and certain rights as having reference both to the union and to the constitutional units. However later it was felt that if Fundamental Rights differed from group to group and from unit to unit or were for that reason not uniformly enforceable, it was felt the Fundamental Rights of citizens of the union had no value. This reorganization leads to the realization that certain Fundamental Rights must be guaranteed to every resident. The sub committee recommended that all the rights incorporated must be binding upon all the authorities whether of the union or of the units. This was thought to be achieved by providing definition in the first clause. The expression the state included the legislature, the government of the union and the units of all local or other authorities within the territories of the union that the law of union included any law made by the union legislature and any existing Indian law as in force within the union or any part thereof.

The sub committee fully discussed various drafts submitted by its members and others before formulating the list of Fundamental Rights. Dr.Ambedkar pointed out that the rights incorporated in the draft were borrowed from constitution of various countries where the conditions are more or less analogous to those existing in India.

The draft submitted on April 3, 1947 was circulated to its members with the explanatory notes on various clauses. The clauses contained in the draft report were thereafter discussed in the sub committee in the light of the comments offered by the members and the final report was submitted to the chairman of the advisory committee on April 16, 1947. Three days later the sub committee on the minority examined the draft clauses prepared by the fundamental rights sub committee and reported on the subject of such rights from the point of view of the minorities. The advisory committee deliberated on the recommendations made by the two sub committee and accepted the recommendations for:

(1) Classification of rights into justifiable or non-justifiable.

(2) Certain rights being guaranteed to all persons and certain other only to citizens

(3) All such rights being made uniformly applicable to the union and the units.

The committee also accepted the drafts of clauses 1 and 2 – the former providing the definition of the state, the unit and the law of the union and latter for the laws or usages inconsistent with the fundamental rights being void in the form recommended by the sub committee also the word constitution was replaced by the word this part of the constitution. The advisory committee incorporated these recommendations in its interim report to the constituent assembly submitted on April 23, 1947. The interim report dealt only with justifiable rights i.e. fundamental rights. Later on August 25, 1947 the advisory committee submitted a supplementary report mainly dealing with non-justifiable rights i.e. the Directive Principles of State Policy or the Fundamental Principles of Governance. A notable development took place on 10 December 1948 when the United Nations General Assembly adopted the Universal Declaration of Human Rights and called upon all member states to adopt these rights in their respective constitutions. The various stages through which the various clauses on fundamental rights passed were similar to other parts of the constitution.

Firstly- the constitutional adviser prepared a draft embodying a decision of the constituent assembly. This draft was considered exhaustively and in detail by the drafting committee, which prepared a revised draft and published it in February 1948. The revised draft was then widely circulated. The comments and suggestions received from all quarters were again considered by the drafting committee and in light of these the committee proposed certain amendments. Discussions in constituent assembly of the draft provisions took place in November and December 1948 and August, September and October 1949. During these meetings the committee considered the various suggestions for amendment made on behalf of Drafting Committee as well as those proposed by the individual members of the assembly. The provisions as passed by the assembly were again scrutinized by the Drafting Committee and incorporated by the drafting changes wherever necessary in the revised draft constitution. The revised draft was again placed before the assembly at its final session held in November 1949.

The fundamental rights were included in the First Draft Constitution (February 1948), the Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26 November 1949) prepared by the Drafting Committee.

The fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. The writers of the constitution regarded democracy of no avail if civil liberties, like freedom of speech and religion were not recognized and protected by the State. Some commentators consider the Indian Constitution to be an extremely lengthy document that goes into excessive details about the structure and working of the government machinery. Most of these rights are enforceable against the State by way of their language, while some others are directed both against the State and private actors. The most important feature however is that the fundamental rights gave the higher judiciary a clear set of criteria to regulate relations between citizens and the government (i.e. ‘vertical application of rights’) as well as among citizens themselves (i.e. ‘horizontal application of rights’). Furthermore, Indian Courts have interpreted these rights not only in a ‘negative’ dimension (i.e. in terms of protection against violations) but also in a ‘positive’ dimension (i.e. in terms of entitlements to benefits).

The right to freedom and personal liberty has a number of limiting clauses, and thus has been criticized for failing to check the sanctioning of powers often deemed "excessive" The phrases "security of State", "public order" and "morality" are of wide implication. The meaning of phrases like "reasonable restrictions" and "the interest of public order" have not been explicitly stated in the constitution, and this ambiguity leads to unnecessary litigation. Employment of child labour in hazardous job environments has been reduced, but their employment even in non-hazardous jobs, including their prevalent employment as domestic help violates the spirit and ideals of the constitution.

2 Reach of Fundamental Rights

2.1. Against who are they claimed?

Generally Fundamental Rights are claimed against the state and its instrumentalities and not against private bodies. Article 13(2) of constitution of India bars the ‘state’ from making any law which infringes a fundamental right. Article 13(2) reads as

“The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this”

The two important concepts used in this provision are ‘state’ and ‘law’. The term ‘state’, for Part III is defined by Article 12 , which reads as

“In this Part, unless the context otherwise requires, “the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

Hence according to Article 12 ‘state’ includes-

1. Government and Parliament of India and the

2. Government and the Legislature of each of the States and

3. All local authorities

4. Other authorities

2.2. Role of judiciary in interpreting ‘other authorities’ as limitation on state power

The most significant expression used in Article 12 is ‘other authorities’. This expression is not defined in the Constitution. It is therefore for the Supreme Court to define this term. Hence Supreme Court of India has largely interpreted this word to limit the powers of the state. Wider the scope of ‘other authorities’, wider the scope of ‘state’ and wider the scope of state; the restriction under Article 13 will be wider. In this way Supreme Court has limited the powers of the state.

India has since the Nehruvian era has adopted the model of welfare state. The functions of government are performed through the traditional government departments and officials while some are discharges through autonomous bodies existing outside the departmental structure.

While govt. working through the department fall within the definition of state under Article 12, doubts have been cast as regards the character of autonomous bodies. Autonomous bodies can, further be divided into statutory authority and non statutory authority.

2.2.1 Principle of ‘Ejusdem generis’

In University of Madras v/s Santa Bai , the Madras High Court evolved the principle of ejusdem generis i.e. of the like nature. It means that those authorities are covered under the expression ‘other authorities’ which perform governmental or sovereign functions. Madras High Court by evolving this principle took a narrow view of Article 12.

2.2.2 Principle of Statutory Authority

In the case of Electricity Board, Rajasthan v. Mohan Lal , State Electricity Board was set up by a statute, having some commercial functions to discharge. The Supreme Court overruled the decision of Shantabai case and held State Electricity Board to be state under Article 12. The Supreme Court further held that ‘other authorities’ would include all authorities created by the Constitution or statute on which powers are conferred by law. This is known as principle of statutory ‘authority’. The court further held that it was not necessary that the statutory authority should be engaged in performing government or sovereign functions even if it is performing commercial functions it will be considered as the state within Article 12.

2.2.3 Principle of Instrumentality of the state

In the case of Sukdev Singh v. Bhagat Ram Sardar Singh Raghuvanshi the court had to deal with the question, whether statutory corporations such as the ONGC, IFC and LIC, came within the definition of “the State” under article 12. Justice Mathew in this case gave the principle of instrumentality of state; which states that any agency, through which state can function, is termed as ‘other authorities’ within Article 12. The court further held that the three corporations were “the State” as the three corporations were created by statutes, had the statutory power to make binding rules and regulations, and were subject to pervasive government control, hence an instrumentality of the state.

The question was considered more thoroughly in Airport Authority case . International Airport Authority is a body corporate constituted under International Airport Authority Act, 1971. The director of authority had issued a notice, inviting tenders for putting up and running a second class restaurant and two snack bars at the International Airport at Bombay. Tenders were received in response to the notice. Shri R.D Shetty, the appellant, who was not a tenderer, filed a writ petition which was rejected by the Bombay High Court. He urged that the notice inviting tenders by the Airport Authority had stipulated a condition of eligibility, but subsequently the same was charged without any rational justification, as a result of which he could not submit his tender. It was further urged before the Supreme Court that the International Airport Authority, being a “State” within the meaning of Article 12 of the Constitution, was bound to give effect to the condition of eligibility set by it and not entitled to depart from it at its own sweet will without rational justification.

Supreme Court held that “where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licenses or granting any other form of largesse, the Government cannot act arbitrarily at its sweet will and like a private individual deal with any person it pleases, but its action must be in conformity with a standard or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the government in the matter of grant of largesse including award of jobs, contracts, quotas, licenses etc. must be confined and structured by rational, relevant and non-discriminatory standards or norms and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself is not irrational, unreasonable or discriminatory.” After making aforesaid observations, the Supreme Court further held that Corporations established by statute or incorporated under law are an instrumentality or agency of the Government.

The International Airport authority, a statutory was held to be an ‘authority’. The S.C. also approved the principle of instrumentality as laid down by Justice Mathew in the case of Sukhdev v. Bhagat Ram. The S.C. hence developed the general proposition that an ‘instrumentality’ or ‘agency’ of the government would be regarded as ‘authority’ or ‘state’ within Article 12.

2.2.4 Non Statutory bodies

By now the questions of statutory bodies had been settled yet that of the non statutory bodies, still continued to cause and confusion and difficulty.

In the case of Sabhaji Tewari v. India the Supreme Court held that the Indian Council of Scientific Research was, a non statutory body, but under a good deal of government control and funding, not a state. This went against the principle of instrumentality as laid down in Sukhdev case.

The question regarding the status of a non statutory body was finally clinched in the case of Ajay Hasia v. Khalid Mujib , where a society registered under the Societies Registration Act running the regional engineering college sponsored, supervised and financially supported by the Government was held to be an ‘authority’. Money to run the college was provided by Central and State governments. The state government could review the functioning of the college and issue certain instructions if considered necessary. Nominees of sate ans cental governments were the members of the society including its chairman. The S.C. held

“...the concept of state or instrumentality or agency of the government is not limited to a corporation created by a statute but is equally applicable to a company or society ...”

In Ajay Hasia the S.C. laid down the following tests to adjudge whether a body is an instrumentality of the government or not:

1. One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.

2. Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with Governmental character.

3. It may also be relevant factor whether the corporation enjoys monopoly status which is State conferred or State protected.

4. Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality.

5. If the functions of the corporation are of public importance and closely related to Governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.

6.'Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of Government.

The law now appears to be settled in view of the seven judge constitution bench of S.C. in the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology , where it concluded that tests formulated in Ajay Hasia were not rigid set of principles.

Once a body is characterised as an ‘authority’ under Article 12 several significant incidents invariably follow:

1. The body becomes subject to the discipline of Fundamental Rights.

2. The body also becomes subject to the discipline of Administrative Law.

3. The body becomes subject to the writ jurisdiction of the S.C. under Article 32 and that of High Courts under Article 226.

Hence by liberally interpreting the term ‘other authorities’ under Article 12 of the constitution has put limitation on the powers of state.

2.3. Views of National Commission to Review the Working of the Constitution

National commission to review the working of the constitution has said that Courts have ruled that where there is pervasive or predominant governmental control or significant involvement in the activities, such bodies, entities and organisations fall within the definition of “the State”. As a result of judicial interpretation, “the State” has been held to include statutory bodies such as insurance corporations, nationalised banks, airline corporations, electricity boards, educational institutions and societies whose composition and administration are predominantly controlled by the government. Consequently the reach and extent of protection of fundamental rights has been widened and greater protection has been afforded especially in the area of employment against discriminatory practices. Again there are private, non-State entities which discharge important quasi-governmental or important public functions, which have repercussions on the life and welfare of the community. Such entities and bodies can be regarded as “the State” as would appear from the concurring opinion of Justice Mathew. “Institutions engaged in matters of high public interest or performing public functions are, by virtue of the nature of the functions performed, government agencies. Activities which are too fundamental to the society are by definition too important not to be considered government function”.

It is a matter for consideration whether the definition of "the State" should be widened to include such non-State entities and make them subject to the discipline of fundamental rights. The consequence will be not to make all actions and decisions of non-State entities subject to judicial review but only those acts or omissions which are violative of fundamental rights guaranteed in Part III of the Constitution.

Another matter for consideration is whether the judiciary should be included in the definition of “the State” in article 12.

Divergent views have been expressed by the Supreme Court on the question whether a judicial order can be violative of a fundamental right.

Another strand of thought is that the inclusion of the judiciary in the definition of ‘the State’ should be confined to article 21 of the Constitution which guarantees that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. It is article 21 which is mainly invoked in the case of judicial orders. The controversy has centered round the question whether a judicial order which is without jurisdiction can be challenged as violative of article 21 of the Constitution.

The National Commission to Review the Working of the Constitution 2002, had recommended that in article 12 of the Constitution, the following explanation should be added; ‘Explanation: – In this Article, the expression “other authorities” shall include any person in relation to such as it functions which are of a public nature.’ The rationale was that, after globalisation and privatisation, traditional functions of a welfare state had transferred to individuals and private agencies. Thereby, fundamental rights and duties that bound the state also passed to them.

The Law Ministry however opposed the suggestion that private entities performing public function be brought within the ambit of Article 12 to safeguard public interest. The Ministry believed that making fundamental rights enforceable against private bodies would be against the concept enshrined in the Constitution that the protection against violation of the rights by individuals must be sought in the ordinary law.

3 Limitation Imposed by Fundamental Rights on Pre and Post constitutional laws

Article 13(1) of the Indian constitution declares that all the laws in force in the territory of India immediately before the commencement of this constitution shall be void to the extent to which they are inconsistent with the provisions of part III of the constitution. Clause (2) of this article provides that the state shall not make any which takes away or abridges the fundamental rights conferred by the part III of the constitution and any law made in the contravention of the fundamental rights shall, to the extent of the contravention be void. In this way the article 13(1) talks about the fundamental rights as the restriction on the sate power by the virtue of the pre-constitutional laws and article 13(2) in the same way impose restrictions on the state powers through post-constitutional laws.

Article 13 provides teethes to the fundamental rights. It makes these rights enforceable in the courts. Thus article 13 deals with the impact of fundamental rights on the state action. It provides for the judicial review of all the laws, whether past or future. It is said to be the charter for the judicial review. The power of the judicial review is exercised by the supreme and high courts through article 32 and 226 respectively. The courts can declare a law unconstitutional if it is inconsistent with the fundamental rights and this power of the judicial review over the legislative action has been declared to be an integral and essential feature, constituting part of the basic structure of the basic structure of the constitution.

3.1 Article 13 is not retrospective in Effect

Fundamental rights are secured by the constitution when it come into force on the 26th January, 1950.so, no fundamental rights was available to the citizens of the India prior to the commencement of the constitution. It follows that as regard the act done or transactions completed before the commencement of the constitution, fundamental rights cannot be invoked and their validity cannot be determined at the touchstone of the fundamental rights. The words in the Article 13(a) i.e. “law in force...Shall…be void” explains that the laws, which were valid and enforceable prior to the commencement of the constitution, shall become void if they are inconsistent with the fundamental rights. Those laws have not been declared void ab initio. The effect of the commencement laws on those laws is that those laws, if inconsistent with any fundamental right, shall become void prospectively. Hence, fundamental rights are prospective in operation.

In the case of keshavan Madhava Menon v. State of Bombay ,the applicant who was the secretary of the people’s publishing house Ltd., a company registered at Bombay published a pamphlet inn 1949 titled as “ railway mazdooron ke khilaf nai sazish”. For this, a prosecution under the press (emergency powers) act, 1931 was started against him. During the pendency of the proceedings the constitution of the India came into force. Soon after the applicant filed a petition praying that the press (emergency powers) act, 1931 being inconsistent with the article 19(1)(a), which secures the citizens with the right to freedom of speech and expression, had become void and incorporative, so the proceedings against him be quashed and he be ordered to be acquitted. But the Supreme Court held that Article 13(1) could not apply to this case as the offence was committed before the commencement of the Indian constitution and thus, the proceeding against the petitioner are not affected.

3.2 Fundamental rights as restriction on pre-constitutional laws

3.2.1 Doctrine of Severability

When the part of the statute is declared unconstitutional, then the question arises whether the whole of the statute is to be declared void or the only part that is inconsistent with the fundamental rights. If we carefully read the wordings of the article 13(1) of Indian constitution, we will get to know that it says that all the laws in force, only to the extent of the inconsistency to be declared as void.

The Supreme Court has devised this doctrine of the severability or the separability, it means that if the if an offending provision can be removed from that which is constitutional then only that part to be declared as void and not the entire statute. Article 13 of the constitution uses the words “to the extent of such inconsistency be void” which means that when some provisions of law is held to be unconstitutional, then only the repugnant provisions of law in question shall be treated by courts as void and not the whole act.

3.2.2 Doctrine of eclipse

The prospective nature of the article 13(1) of the Indian constitution has given rise to the doctrine of eclipse. The doctrine of the eclipse is based on the principle that a law which violates fundamental rights is not nullity or void ab initio but becomes only unenforceable i.e. remains in a moribund condition. It is over-shadowed by the fundamental rights send remains dormant, but it is not dead. Such laws are not wiped out entirely from the statue book. They exist for all the past transactions, and for all past transactions and for the enforcement of the rights acquired and liabilities incurred before the present constitution came into force and for determination of rights of the persons who have not been give fundamental right by the constitutions e.g. non-citizens. It is only as against the citizens that they remain in dormant or moribund condition but they remain in operation as against non-citizens who are not entitled to the fundamental rights.

In Keshav Madhava Menon v. State of Bombay , the Supreme Court held that a law in force before the commencement of the constitution if inconsistent with a fundamental right, did not become void “in toto” or for the all proposes or for all times or for all persons. Such law becomes void only to the extent of its inconsistency with the fundamental right. The law becomes void qua persons, whose fundamental right. , it violated. The only effect of the article 13(1) on the inconsistent law was that, qua persons entitled to the fundamental right, the law becomes ineffective or inoperative for the time being. The law got into a dormant or moribund state or that it was shadowed by the fundamental right it violated, or that it was so eclipsed. Therefore, if by amendment of the fundamental right, enacted subsequent to the commencement of the constitution, the cast on the law was removed, the law would get revived and operative. To achieve this effect, courts apply the doctrine of eclipse.

In Bhikaji Narayan v. State of Madhya Pradesh , The C.P.& Berar Motor vehicles (amendment) Act, 1947 amending the motor vehicles Act,1939,authorized the provincial government to nationalize the road transport business and carry it out to complete exclusion of all others. The act was well within the legislative competence of the provincial legislature as no fundamental rights were available to the people in 1947, i.e. prior to the commencement of the constitution. However, on the commencement of the constitution, the Act got into conflict with the fundamental right guaranteed to citizens by the Article 19(1)(g), to carry on any trade or business and hence the Act become void under Article 13(1) of the constitution. But this infirmity in the act was removed by the constitution(1st Amendment) Act,1951 which inserted , inter alia sub-clause (ii) to clause(6) in article 19, authorizing the state to carry on any trade or business to the partial or complete exclusion of the citizens. Again the constitution (4th Amendment) Act,1955 amended Article 31, relating to fundamental right to property, to the effect that adequacy of compensation for acquisition of property by the state under Article 31(2), was declared to be non-justiciable. It was after these amendments that the petitioners, who were carrying on the business as stage operators, challenged the C.P. & Berar Motor vehicles (Amendments) Act,1947 as inconsistent with their fundamental rights under article(1)(g) and 31(2) and hence void under Article 13(1).

The Supreme Court upheld the constitutionality of the impugned Act and enunciated the doctrine of the eclipse. The court held that on the commencement of the constitution, the impugned act became void to the extent it was inconsistent with the right of citizens guaranteed by article 19(1)(g) as it then stood. The true position was that the impugned law, as it were, became eclipsed, for the time being by the fundamental right. The law, as against the citizens, remained in a dormant or moribund condition. The effect of the 1st Amendment, 1951 was to remove the shadow and make the impugned Act free from all blemish or infirmity. Further, the impugned Act got inconsistent with Article 31, which guaranteed the right to property. And it continued to be so inconsistent and therefore became void under Article 13(1), till the 4th Amendment, 1955 was enacted. The 4th Amendment 1955 had the effect of removing the inconsistency of which the impugned Act was suffering since the commencement of the constitution.

3.3 Justifiability of Post- constitutional Laws

The state shall not make any law which takes away or abridges the rights conferred by this part or any law made in contravention of this clause shall, to the extent of contravention, be void. It is a crucial provision which deals with post constitutional laws. In India, legislative powers of state are absolute. Even by article 245(1), the legislative powers are to be made ‘subject to the provisions of the constitution’. Unlike England, parliament is not supreme in India; Constitution of India, 1950 is the supreme law of land and nothing is above it. It is within the competency of the courts to judge and declare whether there has been any contravention of law. Basically, there are two principle limitations to the legislative power of the state. One of them is competency of parliament as prescribed in article 245 & 246. The other one is that such laws must be subject to provisions of constitution and must not take away or abridge the rights conferred by part III. Article 13 merely incorporates that reservation. The article is not the source of protection of fundamental rights, but the expression of reservation. It means that this article empowers the courts to strike down the legislation if it in violation of part III of the constitution but does not grant protection to state citizens in certain area.

Article 13(2) is a mandatory clause. The language used in this clause is ‘the state shall not make’ showing that the state is under strict responsibility not to make any law which infringes the fundamental rights of a citizen. So, if there is any provision against fundamental rights, it becomes void ab initio that is from the very beginning. Here it get differentiated from article 13(1) as under art 13(1) a pre-constitutional law subsists except to the extent of its inconsistency where as the post constitutional laws cannot be made in contravention to part III as it is void ab initio.

The Supreme Court has further bolstered its protective role under article 13 (2) by laying down the proposition that judicial review I the best feature of constitution. If the courts would deprive of their power of judicial review, it would mean that fundamental rights become non-enforceable. They will become rights without remedies or writs without water and the controlled legislation will become uncontrolled.

3.4 Unconstitutionality of a Statute

Article 13(2) refers to post constitutional laws and states that a law is void if it is in inconsistence with fundamental rights. A void law is not enforceable and no rights or duties can be guaranteed under such a statute. Any law made in contravention of part III is dead from the very beginning and cannot at all be taken notice of or read for any purpose whatever. But principle may not hold true in the case of pre-constitution law but it stands valid to a great extend in post- constitutional law. It is well explained in doctrine of eclipse and doctrine of severability.

3.4.1 Doctrine of Eclipse and post-constitutional laws

The doctrine of eclipse envisages that a law inconsistent with the fundamental rights is not wiped out altogether from the statute books after the commencement of the constitution as it continued to exist in respect to rights and duties which have accrued before the date of commencement and if the fundamental rights have been amended then the effect would be to remove the shadow and to make the act impugned free from all blemish. Fundamental rights are a limitation on state power. Article 13(2) expresses this limitation. It declares an impugned act void ab initio. It does not have any retrospective effect. Thus, it could not be revived even if the relevant fundamental right is amended to remove the hurdle from the way. If certain law has been declared as void with respect to the citizens of India and is operational in respect of non-citizens; with due amendment in fundamental rights, the law will not be revived. Art. 13(2) affects the competence of the legislature to enact it with respect to the citizens, the law will have to be re-enacted after the constitutional amendment as it is desired to make it operative for the citizens as well.

3.5 Doctrine of Waiver

The doctrine of waiver explains that a person, entitled to a right or privilege, is free to waive that right or privilege. It is voluntary relinquishment or abandonment of a known existing legal right or privilege. Waiver is an agreement between the parties and a party fully knowing of his right agrees not to assert a right for a consideration. Once a person has so waived his right, he would not be allowed to claim it afterwards but the same is not true in the case of the fundamental rights because in any case they cannot be waived.

4. Role of judiciary in applying Fundamental rights as a limitation

Article 13 makes judiciary as the protector and guardian of fundamental rights. Judiciary is the interpreter of fundamental rights. It protects the rights of people from the vicissitudes of political controversy and places them beyond the reach of political parties. The Supreme Court acts as the “sentinel on a que vive”. Supreme Court ensures that no law infringes fundamental rights. Supreme Court has displayed judicial creativity of high order in interpreting these rights. This interpretation of rights facilitates the change in socio, economic and political environment in the country which demands thee recognition of new rights and many a time this law grows through courts.

4.1 Doctrine of Judicial Review and Role of Judiciary

Writs and public interest litigations are the tools in the hands of public through which they demand protection of fundamental rights and Supreme Court and High Court ensures these rights under article 32 and 226 respectively of Indian Constitution Act, 1950. The Supreme Court has further bolstered its protective role under article 13 (2) by laying down the proposition that judicial review I the best feature of constitution. Constitution the Supreme Court of India possesses implied power to declare any Act of the Central or State Legislature or any decree of the Executive as ultra virus, if it does not conform to the provisions of the Constitution. The power of the Judiciary to review the Act of the Legislature or the Executive in order to determine its constitutional propriety is known as the “Doctrine of Judicial Review”. This concept has been taken from U.S. Constitution. Even U.S. Constitution does not provide this doctrine specifically but in the case of Marbury v. Madison, it was held that it is duty of judiciary to decide what the law is. If a law is in inconsistent to constitution, the courts may decide the case conformably to the law and disregarding the constitution. Hence, judicial review is of the essence of judicial duty. If the courts would deprive of their power of judicial review, it would mean that fundamental rights become non-enforceable. They will become rights without remedies or writs without water and the controlled legislation will become uncontrolled. In the case of Kesavananda Bharti v. State of Kerala , it was said that judicial review has become the integral part and basic structure of Indian Constitution and basic structure cannot be amended.

4.2 Doctrine of Severability and Role of Judiciary

When a part of statute is declared on constitutional then the question arises whether the whole statute is to be declared void or only that part which is constitutional should be declared void. So, to resolve this problem, Supreme Court has devised the doctrine of severability. Whenever Indian legislation crosses its border and make provisions of some statute ultra virus, Indian Judiciary plays active role in determining whether the whole statute is to declared void or only a part of it. The constitution makes when they used the words “to the extent of” in both clauses of article 13 intended that the pre-constitutional law and post constitutional law should be void as far as their inconsistency went. So if a part is inconsistence then only that part should be removed from the statute, not the entire law should be declared void provided that the propositions laid down in R.M.D.C. V. Union of India as regards this doctrine must be analysed. The case of R.M.D.C. v. Union of India is a case in which Supreme Court laid down certain proposition as regards to doctrine of severability. It laid down some test of severability. It requires the courts to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of law. if the provisions are so badly mixed up and they cannot be separated, there shall be invalidity of act in its entirely. It the parts are separable but the left is unable to stand independently or remains very thin, then the whole act will be declared void. Hence, only if they are distinct or separable from the invalid provisions what survives can stand on its own and both are not the parts of one scheme, then it will be upheld and rest will be held enforceable. In this case, judiciary clearly gave some basis to decide whether the whole act or only its part is to be declared void.

In the case of Romesh Thappar v. State of Madras , where the law imposed the restriction on fundamental rights and where I was impossible to separate the two, the whole law was struck down by Supreme Court. Paragraph seven of tenth schedule of Indian Constitution provided that: “no court shall have any jurisdiction in respect of ant matter connected with the disqualification of a member of house under this schedule”. In the Gopalan Case , section 14 of preventive detention act was struck down only as omission of this section will not change the nature or structure of subject of legislation. Section 14 is ultra virus does not affect the validity of rest of statute. Even in Kihota Hollohon v. Zachilhu , the Supreme Court declared this paragraph as unconstitutional and invalid in so far as it affected the jurisdiction of the Supreme Court and high Courts. Applying the doctrine of severability, the court ruled that it could be applied to a composite amendment which contained amendments in provisions which did not require ratification by state.

4.3 Doctrine of Waiver and Role of Judiciary

This doctrine explains that a person, entitled to a right or privilege, is free to waive the right or privilege. It is a voluntary abandonment of his/her rights and privileges. It is not open to an accused to waive or give up the constitutional rights and gets convicted. In the case of Behram v. State of Maharashtra , the judge opined that fundamental rights can be divided into two broad categories. One referring benefits to individuals and other conferring benefits on the general public. The argument that the fundamental rights by an individual can be waived off was not accepted by majority of judges, otherwise, there will not be any use left of this doctrine. A citizen cannot invite discrimination by telling the state ‘you can discriminate’ or get convicted by waiving the protection under constitution. This doctrine of waiver is well accepted in U.S. Fundamental rights can be waived there.

In the case of Bashesher Nath v. Income Tax Commissioner , a person who was convicted of concealment of large amount of income agreed upon setting the issue in 1954 by paying the money of Rs. 3, 00,000in monthly instalments by the way of arrears of tax and penalty. In 1955, this section 14 of Taxation of Income Act was held void. Then the petitioner challenged the statement between them regarding settlement of issue. But the respondent contended that the petitioner by entering into agreement has waived his rights guaranteed under article 14 of Indian Constitution. The court held that these rights have been put in the constitution but merely for the benefit of individual but as a matter of public policy for the benefit of general public. It is obligation imposed on state by constitution. No person can relieve the state of this obligation. The reason for this is that India is a middle class country with majority as poor economically backward not yet conscious to their rights. Fundamental rights are mandatory on the state and no citizen can relieve the state of the solemn obligation imposed on it. Hence, here the judiciary plays the role. It protects the rights of people.

Argument of estoppels as to waive the right is not valid. In Olgas Tellis case, it was again asserted that the purpose of these rights is to benefit public and to secure the large interests of the community. But it does not mean that if a person says that he would not enforce a fundamental right against himself, it would create estoppels against him. Such a concession, if enforced, would defeat the purpose of constitution. it was also held that acceptance of retrenchment benefit by a person does not mean that he has surrendered all his constitutional rights and he would terminated without departmental enquiry and without any right of hearing.

The doctrine of waiver developed by the Supreme Court of India denotes manifestation of its role protector of fundamental rights.

5 Conclusion

Fundamental human rights have been described as rights which are inalienable and guaranteed to every person. They have also been defined as “rights which stand above the ordinary laws of the land and which in fact are antecedent to the political society itself”. One of the most common features of contemporary fundamental rights is the inclusion of one or more limitations clauses. In turn, the use of limitations clauses has given rise to adjudicative structures that at least formally sever the definition of a right from its limitation. Fundamental rights drafted in such a way are often thought of as an advance over the contemporary sociological model, in which reasonable limits are inherent in the conception of the constitutional rights themselves. In this group project, we intend to argue the contrary; there is no justification for the two-stage division between: (1) the definition of a legal right and determination of whether that right has been infringed in a particular instance, and (2) the determination of whether the infringement of a right is nevertheless ultimately justified. We put forward that, despite the proliferation of two-stage concept of fundamental rights, the dominant interpretation of such bills of rights creates unnecessary interpretative difficulties and threatens to distort rights adjudication. The concept concerns about the erosion of parliamentary sovereignty with the grant of unlimited, absolute rights, and to provide the judiciary with some guidance for interpreting rights. When a government (or other party) contends that state action limiting a right is justified, it is arguing that notwithstanding an intermediate finding that there has been a right violation, there are nevertheless competing demands and reasons that defeat the claim of right in this instance. The separation of powers between Legislature, Executive and the Judiciary constitutes basic structure, has been found in Kesavananda Bharati's case by the majority. Later, it was reiterated in Indira Gandhi's case. A large number of judgments have reiterated that the separation of powers is one of the basic features of the Constitution.

5.1 The Basic Structure Test

In this connection, it is necessary to examine the nature of the constituent power exercised in amending a Constitution. The question before us is not about power to amend Part III after 24th April, 1973. As per Kesavananda Bharati, power to amend exists in the Parliament but it is \ subject to the limitation of doctrine of basic structure. The fact of validation of laws based on exercise of blanket immunity eliminates Part III in entirety hence the 'rights test' as part of the basic structure doctrine has to apply.

Thus, it is necessary to examine what exactly is the content of the basic structure test. According to the petitioners of Ceolho case, the consequence of the evolution of the principles of basic

structure is that laws cannot be conferred with constitutional immunity. Assuming that such immunity can be conferred, its constitutional validity would have to be adjudged by applying the direct impact and effect test which means the form of an amendment is not relevant, its consequence would be determinative factor. The power to make any law at will that transgresses Part III in its entirety would be incompatible with the basic structure of the Constitution. The contention is that there is no judicial review in absolute terms and Article 31B only restricts that judicial review power. By making 24th April 1973 as cutoff date, judiciary admits introduction of a new Chapter called Basic Structure to the Constitution, to be a touchstone, to test the state action and it is in the nature of an invisible amendment without inserting any letter to the Constitution. Certainly, judiciary does not have powers to amend the Constitution, but by propounding the Basic Structure doctrine as touchstone to test the legislative actions and by evolving the same from Keshavananda Bharati case to the present case and making the same as an enforceable doctrine, the judiciary had exceeded its delineated powers.

In Shankari Prasad Singh Deo Vs. State of Bihar , Kochunni Vs. State of Madras27

and Sajjan Singh Vs. State of Rajasthan the Supreme Court upheld the First Amendment and further held that the law, which seeks to deprive a person of his property must be a valid law, enacted by competent legislature and not in consistent with any of the fundamental rights guaranteed by Part III of the Constitution. The Supreme Court, however, noted that if the effect of the amendment made in the Fundamental Rights on Art.226 is direct and not incidental, different considerations may perhaps arise.

To conclude one has to see the argument that, according to one’s conception of justice and the history and culture of a given society, there are duties, obligations, and disadvantages that are unreasonable to ask others to accept, is an argument that rests on conclusions of moral and political philosophy. It demands a wide-ranging inquiry before others can be told by a court that they are guilty of having demeaned a claimant’s dignity. The states limitation is a positive concept in the light of the fact that the country had witnessed an elected Prime Minister play with Art. 22.

Individual rights are matters of principle, and are to be distinguished from the collective goals the matters of policy that would make the community as a whole better off. Appeals to “policy” are articulations of “a standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community”. Policies are contrasted with “principles”, which are standards that are to be observed “because it is a requirement of justice or fairness or some other dimension of morality.” In short, “principles are propositions that describe rights; policies are propositions that describe goals.”

6 References

6.1 Bibliography:

1. RamaChandran, V.G., “Fundamental Rights and Constitutional Remedies, Vol 1” (1964)

2. Subba Rao, Koka,” Fundamental Rights Under the Constitution of India”, University of Madras,1966,

3. Bakshi, P M, “The Constitution Of India”, Universal Law Publication,2010

4. Gledhill, Alan,” Fundamental Rights in India”,Stevens and Sons, 1995

5. Pandey,JN, “The Constitution Of India”, Central Law Agency ,49th Edition,2012

6. Seervai, H.M., “Constitutional law of India”, Universal Law Publishing,4th Edition, 2006,

7. Kumar, Narender. “Fundamental Rights”. Constitutional law of India, Allahabad law agency ,1997.96

8. Jain,M.P.”Doctrine of Eclipse” Indian Constitutional Law. Nagpur.Wadhwa and Company,2003

9. Singhvi, L.M. Constitution of India. New Delhi: Thomas Reuters, ed. 3rd, 2013

10. Kumar, Narinder. Constitutional Law of India. Faridabad: Allahabad Law Agency, ed. 8th, 2013

11. De, D.J. Interpretation and Enforment of Fundamental Rights. Kolkata: Eastern Law House, 2010

12. John Finnis, Natural Law and Natural Rights (1980)

13. Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (1996

14. Ronald Dworkin, Taking Rights Seriously (1977)

6.2 Internet Resources

Websites:

1. http://legal-articles.deysot.com/constitutional-law/history-of-introduction-of-fundamental-rights-in-indian-constitution.html

2. http://legal-articles.deysot.com/latest/

3. http://www.archives.gov/exhibits/charters/bill_of_rights.html

4. http://www.facts-about-india.com/fundamental-rights-in-India.php

5. http://legal-articles.deysot.com/constitutional-law/history-of-introduction-of-fundamental-rights-in-indian-constitution.html

6. from www.indiankanoon.org/doc/134715

7. http://www.puncfhng.com/feature/the-law-you/fundamental-rights-enforcement-procedure-rules-and-limitation-laws/

6.3 Journals

1. Sharma, Samita. “Doctrine of Judicial Review". http://www.preservearticles.com

2. Sakesh, Manoj. “Judicial Review in India”. http://www.shareyouressays.com

Fundamental Duties v Fundamental Rights

2017-05-31T23:27:00.002-07:00

Fundamental duties vs. Fundamental rights

'Part III – Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violation of these rights result in punishments as prescribed in the Indian Penal Code, subject to discretion of the judiciary. The Fundamental Rights are defined as basic human freedoms, which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste, creed, color or gender. Aliens (persons who are not citizens) are also considered in matters like equality before law. They are enforceable by the courts, subject to certain restrictions. The Rights have their origins in many sources, including England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man.

The six fundamental rights recognised by the constitution are:^[1]

· Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles.

· Right to freedom which includes speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases.

· Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings;

· Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes.

· Cultural and Educational rights preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.

· Right to constitutional remedies for enforcement of Fundamental Rights.

Right to property was originally a fundamental right, but is now a legal right.

Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they have also been used to abolish untouchability and hence prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour. They also protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and also establish and administer their own education institutions.

1.1.1 Development And Origin Of Fundamental Rights In India

The development of constitutionally guaranteed fundamental human rights in India was inspired by historical examples such as England's Bill of Rights (1689), the United States Bill of Rights (approved on 17 September 1787, final ratification on 15 December 1791) and France's Declaration of the Rights of Man (created during the revolution of 1789, and ratified on 26 August 1789).^[2] Under the educational system of British Raj, students were exposed to ideas of democracy, human rights and European political history. The Indian student community in England was further inspired by the workings of parliamentary democracy and Britishers political parties.^[3]

In 1919, the Rowlatt Act gave extensive powers to the British government and police, and allowed indefinite arrest and detention of individuals, warrant-less searches and seizures, restrictions on public gatherings, and intensive censorship of media and publications. The public opposition to this act eventually led to mass campaigns of non-violent civil disobedience throughout the country demanding guaranteed civil freedoms, and limitations on government power. Indians, who were seeking independence and their own government, were particularly influenced by the independence of Ireland and the development of the Irish constitution. Also, the directive principles of state policy in Irish constitution were looked upon by the people of India as an inspiration for the independent India's government to comprehensively tackle complex social and economic challenges across a vast, diverse nation and population.

In 1928, the Nehru Commission composing of representatives of Indian political parties proposed constitutional reforms for India that apart from calling for dominion status for India and elections under universal suffrage, would guarantee rights deemed fundamental, representation for religious and ethnic minorities, and limit the powers of the government. In 1931, the Indian National Congress (the largest Indian political party of the time) adopted resolutions committing itself to the defence of fundamental civil rights, as well as socio-economic rights such as the minimum wage and the abolition of untouchability and serfdom.^[4] Committing themselves to socialism in 1936, the Congress leaders took examples from the constitution of the erstwhile USSR, which inspired the fundamental duties of citizens as a means of collective patriotic responsibility for national interests and challenges.

Task of developing a constitution for the Constituent Assembly of India, composing of, undertook the nation elected representatives. Constituent Assembly first met on December 9, 1946 under the presidency of Dr. Sachidanand later Dr. Rajendra Prasad was made its President. While members of Congress composed of a large majority, Congress leaders appointed persons from diverse political backgrounds to responsibilities of developing the constitution and national laws.^[5]Notably, Bhimrao Ramji Ambedkar became the chairperson of the drafting committee, while Jawaharlal Nehru and Sardar Vallabhbhai Patel became chairpersons of committees and sub-committees responsible for different subjects. A notable development during that period having significant effect on the Indian constitution took place on 10 December 1948 when the United Nations General Assembly adopted the Universal Declaration of Human Rights and called upon all member states to adopt these rights in their respective constitutions.

The fundamental rights have been revised for many reasons. Political groups have demanded that the right to work, the right to economic assistance in case of unemployment, old age, and similar rights be enshrined as constitutional guarantees to address issues of poverty and economic insecurity,^[6] though these provisions have been enshrined in the Directive Principles of state policy.^[7] The right to freedom and personal liberty has a number of limiting clauses, and thus have been criticised for failing to check the sanctioning of powers often deemed "excessive".^[8] There is also the provision of preventive detention and suspension of fundamental rights in times of Emergency. The provisions of acts like the Maintenance of Internal Security Act (MISA) and the National Security Act (NSA) are a means of countering the fundamental rights, because they sanction excessive powers with the aim of fighting internal and cross-border terrorism and political violence, without safeguards for civil rights.^[9] The phrases "security of State", "public order" and "morality" are of wide implication. People of alternate sexuality are criminalized in India with prison term up to 10 years. The meaning of phrases like "reasonable restrictions" and "the interest of public order" have not been explicitly stated in the constitution, and this ambiguity leads to unnecessary litigation.^[10] The freedom to assemble peaceably and without arms is exercised, but in some cases, the police through the use of non-fatal methods break up these meetings.

"Freedom of press" has not been included in the right to freedom, which is necessary for formulating public opinion and to make freedom of expression more legitimate.^[11] Employment of child labour in hazardous job environments has been reduced, but their employment even in non-hazardous jobs, including their prevalent employment as domestic help violates the spirit and ideals of the constitution. More than 16.5 million children are employed and working in India.^[12] India was ranked 88 out of 159 in 2005, according to the degree to which corruption is perceived to exist among public officials and politicians worldwide.^[13] The right to equality in matters regarding public employment shall not be conferred to overseas citizens of India, according to the Citizenship (Amendment) Bill, 2003.^[14]

1.2 Fundamental Duties

The Fundamental Duties of citizens were added to the Constitution by the 42nd Amendment in 1976, upon the recommendations of the Swaran Singh Committee that was constituted by the government earlier that year.^[15] ^[16]Originally ten in number, the Fundamental Duties were increased to eleven by the 86th Amendment in 2002, which added a duty on every parent or guardian to ensure that their child or ward was provided opportunities for education between the ages of six and fourteen years.^[17] The other Fundamental Duties obligate all citizens to respect the national symbols of India, including the Constitution, to cherish its heritage, preserve its composite culture and assist in its defense. They also obligate all Indians to promote the spirit of common brotherhood, protect the environment and public property, develop scientific temper, abjure violence, and strive towards excellence in all spheres of life.^[18] Citizens are morally obligated by the Constitution to perform these duties. However, like the Directive Principles, these are non-justifiable, without any legal sanction in case of their violation or non-compliance.^[19] ^[20] There is reference to such duties in international instruments such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, and Article 51A brings the Indian Constitution into conformity with these treaties.^[21]

1.3 Relationship between the Fundamental Rights and Fundamental Duties

The Directive Principles have been used to uphold the Constitutional validity of legislations in case of a conflict with the Fundamental Rights. Article 31C, added by the 25th Amendment in 1971, provided that any law made to give effect to the Directive Principles in Article 39(b)–(c) would not be invalid on the grounds that they derogated from the Fundamental Rights conferred by Articles 14, 19 and 31. The application of this article was sought to be extended to all the Directive Principles by the 42nd Amendment in 1976, but the Supreme Court struck down the extension as void on the ground that it violated the basic structure of the Constitution.^[22] The Fundamental Rights and Directive Principles have also been used together in forming the basis of legislation for social welfare.^[23] The Supreme Court, after the judgment in the Kesavananda Bharati case, has adopted the view of the Fundamental Rights and Directive Principles being complementary to each other, each supplementing the other's role in aiming at the same goal of establishing a welfare state by means of social revolution.^[24] Similarly, the Supreme Court has used the Fundamental Duties to uphold the Constitutional validity of statutes which seeks to promote the objects laid out in the Fundamental Duties.^[25] These Duties have also been held to be obligatory for all citizens, subject to the State enforcing the same by means of a valid law.^[26] The Supreme Court has also issued directions to the State in this regard, with a view towards making the provisions effective and enabling a citizens to properly perform their duties.^[27]

2 Fundamental Rights and Fundamental Duties in India

2.1 Fundamental rights under the Indian Constitution

The constitution of India seeks to secure the liberty of thought, expression, belief and faith of the people of the country and also give equality of status and of opportunity, and dignity of individual. With this object fundamental rights are introduced.^[28]

The Constitution guarantees elaborate Fundamental Rights to Indian citizens; these are contained in Part III of the Constitution. The Fundamental Rights embodied in the Indian constitution acts as a guarantee that all Indian citizens can and will lead their life’s in peace as long as they live in Indian democracy. These civil liberties take precedence over any other law of the land. They include individual rights common to most liberal democracies, such as equality before the law, freedom of speech and expression, freedom of association and peaceful assembly, freedom of religion, and the right to constitutional remedies for the protection of civil rights such as habeas corpus.

In addition, the Fundamental Rights for Indians are aimed at overturning the inequities of past social practices. They have also been used to in successfully abolishing the "untouchability"; prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth; and forbid trafficking in human beings and also the forced labor. They go beyond conventional civil liberties in protecting cultural and educational rights of minorities by ensuring that minorities may preserve their distinctive languages and establish and administer their own education institutions.

Originally, the constitution provided for seven Fundamental Rights:-

1. Right to equality (Art. 14- 18)

2. Right to Freedom (Art. 19-22)

3. Right against exploitation (Art. 23-24)

4. Right to freedom of religion (Art. 25-28)

5. Cultural and educational rights (Art. 29-30)

6. Right to property (Article 31)

7. Right to constitutional remedies (Article 32).

But, Right to property was deleted from the list of Fundamental Rights by the 44^th Amendment act, 1978. It is made a legal right under Article-300A in part XII of the Constitution. So now there is only six Rights in part III of the Constitution.^[29]

2.1.1 Right to equality

Article 14 to 18 of the Constitution deal with equality and its various facets. The general principle finds expression in article 14. Article 14 says that “the state shall not deny to any person equality before the law or equal protection of the laws within the territory of India. The expression ‘equality before the law’ is a declaration of equality of all persons within the territory of Indi, implying thereby the absence of any special privilege in favor of any individual. Every person whatever is his rank is subject to the jurisdiction of the ordinary courts. The second expression ‘equal protection of the laws’ based on the last clause of the first section of fourteenth Amendment of American Constitution that equal protection shall be secured by all the person of the country.^[30]

Both the phrases aim to establish what is called the "equality to status and of opportunity" as embodied in the Preamble of the Constitution. While equality before the law is a somewhat negative concept implying the absence of any special privilege in favour of any individual and the equal subjection of all classes to the ordinary law, equal protection of laws is a more positive concept employing equality of treatment under equal circumstances.^[31]

The right to equality is provided in articles 14, 15, 16, 17 and 18. It includes equality before law without any discrimination (Art. 14), establishment of social equality (Art. 15), equality of opportunity in matters of public employment (Art. 16), abolition of untouchability (Art 17) and abolition of titles (Art. 18) to reduce disparity between the people.^[32]

Interpreting the scope of the Article, the Supreme Court of India held in Charanjit Lal Choudhury vs. The Union of Indiathat:

a. Equal protection means equal protection under equal circumstances;

b. The state can make reasonable classification for purposes of legislation;

c. Presumption of reasonableness is in favour of legislation;

d. The burden of proof is on those who challenge the legislation.^[33]

The Supreme Court in National council for Teacher Education versus Shri Shyam Shiksha Parshikhshan Sansthan has re-iterated the Concept of 'Right to Equality' as enshrined in our Constitution. The Supreme Court has re-iterated that the Constitution doesn't allow class legislation but permits reasonable classification, based upon an 'intelligible differentia'. The relevant extracts from the aforesaid judgment are reproduced herein below;

Article 14 forbids class legislation but permits reasonable classification provided that it is founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and the differentia has a rational nexus to the object sought to be achieved by the legislation in question.^[34]

In its struggle for social and political freedom mankind has always tried to move towards the ideal of equality for all. The urge for equality and liberty has been the motive force of many revolutions. The charter of the United Nations records the determination of the member nations to reaffirm their faith in the equal rights of men and women.

Indeed, real and effective democracy cannot be achieved unless equality in all spheres is realized in a full measure. However, complete equality among men and women in all spheres of life is a distant ideal to be realized only by the march of humanity along the long and difficult path of economic, social and political progress.

The Constitution and laws of a country can at best assure to its citizens only a limited measure of equality. The framers of the Indian Constitution were fully conscious of this. This is why while they gave political and legal equality the status of a fundamental right, economic and social equality was largely left within the scope of Directive Principles of State Policy.

The Right to Equality affords protection not only against discriminatory laws passed by legislatures but also prevents arbitrary discretion being vested in the executive. In the modern State, the executive is armed with vast powers, in the matter of enforcing by-laws, rules and regulations as well as in the performance of a number of other functions.

The equality clause prevents such power being exercised in a discriminatory manner. For example, the issue of licenses regulating various trades and business activities cannot be left to the unqualified discretion of the licensing authority. The law regulating such activities should lay down the principles under which the licensing authority has to act in the grant of these licenses.

Article 14 prevents discriminatory practices only by the State and not by individuals.^[35]

2.1.2 Right to Freedom

Article 19 to 22 of the Constitution deal with the right to Freedom. This right includes the following six freedom of citizen of the country:

a) Freedom of speech and expression: It needs not to be mentioned as to how important the freedom of speech and expression in democracy is. A democratic government attaches a great importance to this freedom, because without freedom of speech and expression the basis of democracy cannot be made.

b) Assemble peaceably and without arms: This is the next right of citizen to assemble peacefully and without arms. Calling an assembly and putting one’s views before it is also intermixed with the right to speech and expression discussed above.

c) Form association or unions: The freedom of association includes freedom to hold meeting and takeout processions without arms. Right to form association for unions is also guaranteed so that people are free to have the members entertaining similar views. This right is also subject to some restriction: Sovereignty and integrity of India, public order and morality.

d) Move freely, throughout the territory of India: This right is given under article 19(1)(d). There is also some restriction fall on this right: interest of the general public and interest of any Scheduled Tribe.

e) Reside and settle in any part of the territory of India: This right says that the citizen of India has the right to reside in any part within the territory of India.

f) Practice any profession or to carry on any occupation, trade or business.^[36]

Articles 20, 21 and 22 provide personal liberty to Indian citizens as well as foreigners residing in the country. Article 20 lays down that no person can be convicted unless he had violated a law, cannot be subjected to a penalty greater than that which was prescribed under law and a convict can be punished for a crime only once and cannot be compelled to be a witness against himself.

Article 21 lays down protection of life, and, personal liberty. It includes personal liberty implying protection against physical torture, confinement and imprisonment. Article 22 talks about protection against arrest and detention. The person arrested should be informed of the grounds of arrest. He shall have the right to consult and to be defended by a legal practitioner, to be produced before the nearest magistrate within twenty four hours and no person should be detained in custody beyond 24 hours without the permission of Magistrate.^[37]

In famous case A.K Gopalan vs. State of Madras in 1950, the Supreme Court held that protection under Article 21 is available only against arbitrary executive action and not from arbitrary legislative action.^[38]

Prabhu Datt vs Union of India SC AIR 1982: SC held that right to know news and information about the functioning of the govt. is included in the freedom of press.

Union of India vs Association for Democratic Reforms SC AIR 2002: SC held that people have right to know about the candidate before voting. Thus, the law preventing the Election Commission from asking for a candidate’s wealth, assets, liabilities, education and other such information, is invalid.

Secretary, Ministry of I & B vs. Cricket Association of Bengal SC AIR 1995: In this historic judgment, SC has held that one has the right to publicize his expression as well. A game of cricket is an expression and the organizers have a right to propagate it everywhere in the world. So Doordarshan must provide its up linking facilities to CAB for transmitting the signals out of country. Art 19 (2) does not allow restrictions on 19 (1) (a) on the grounds of creating monopoly of the govt.

Every human desires to do many things. However, in a civil society such desires must be curbed to certain extent in respect of similar desires of other human beings. Thus, no right is an absolute right. Art 19 (2) says that nothing in Art 19 (1) (a) shall affect the operation of any law or prevent the state from making any law, in so far as such law imposes reasonable restrictions on exercise of the right conferred by the said clause in the interest of -

· Sovereignty and integrity of the country.

· Security of the state

· Friendly relations with foreign states.

· Public order

· Decency and morality

· Defamation

· Contempt of court

· Incitement of an offence.

In the original version of this article several grounds such as public order, friendly relations with foreign states, incitement of an offences were not there. After the historic judgment in the case of Romesh Thaper vs State of Madras SC AIR 1950, these grounds were added. In that case, Madras Govt. prevented the entry an circulation of the new paper 'Cross Roads' published by Romesh Thaper, in the state of Madras. It argued that the circulation of the paper affects public safety. However, SC held that the public safety falls outside the scope of 19 (2) and thus the govt action was invalid.

Test of reasonable restriction

1. It is the courts and not the legislature that will decide whether a law is reasonable or not.

2. Reasonable means that the law is not arbitrary and the restriction is not beyond what is required in public interest. The time and duration of the restriction cannot be unlimited.

3. There is no fixed standard for reasonableness. Each case must be decided on its own merits.

4. The restriction must be reasonable from substantiate as well as procedural standpoint.

5. Restrictions imposed due to implementation of Directive Principles may deemed to be reasonable.

6. The test of reasonability must be objective in the sense that it does not matter what a Judge or Court thinks what is reasonable but what a normal reasonable person would think.^[39]

2.1.3 Right against Exploitation:

Article 23: The details of Prohibition of traffic in human beings and forced labor are presented in this Article

Article 24: The Article contains Prohibition of employment of children in factories, etc.

In the landmark case of M.C. Mehta vs. State of Tamil Nadu, 1997 the SC has given certain directions regarding the manner in which the children working in the hazardous occupation are to be withdrawn from work and rehabilitated, and the manner in which the working conditions of children working in non- hazardous occupations are to be regulated and improved. It envisaged a policy of gradual rescue and withdrawal of children to eradicate child labor.^[40]

2.1.3 Right to freedom of Religion:

With Article 25 begins a group of provisions ensuring equality of all religions thereby promoting secularism. Article 25 gives the entire person the following right:

a) Freedom of conscience, and

b) The right freely to profess practice and propagate religion.

The Supreme Court in State of Karnataka Vs Dr. Praveen Bhai Thogadia, (2004) held that secularism means that State should have no religion of its own and each person must get an assurance from the state that he has the protection of law to freely profess, practice and propagate his religion and freedom of conscience. This right not only limited to the citizen but to all person including aliens and individuals exercising their rights individually or through Institution.^[41]

In Jehovah’s Witness’s case, in 1986, a two judge bench of SC ruled in Bijoe Emmanuel v State Of Kerala, that Jehovah’s witnesses constitute a religious denomination. Compelling a student belonging to the Jehovah’s Witnesses to join in the singing of National Anthem despite his “genuine, conscientious religious objection”, would contravene the rights guaranteed by Articles 19(1) (a) and 25(1). The court noted that Jehovah’s Witnesses wherever they are do not sing the National Anthem, though they show respect to it whenever it is sung.

Article 25(2)(b) provides for two ideas-

1. Measures of social reform are permissible and would not be void on the ground of interfering with the freedom of religion. Thus the Hindu Marriage Act, which introduces the principle of monogamy, does not amount to interfering with the religion and is a law providing for social reform and social welfare.

In Krishna Singh vs. Mathura Ahir, the SC has said that Fundamental Rights do not touch upon the personal laws of the parties. Art. 25 thus involves a separation between religious activities, on one hand, secular and social activities, on other.

Under Art. 25((2), religious freedom is subject to laws for social reform and social order.

2. The state can throw open the Hindu religious institutions of public character to all sections of society.

Art. 25(b) enables the state to take steps to remove the scourge of untouchability from the Hindus. The word public here includes any section of the public. It protects the right to enter into a temple for purposes of worship.^[42]

2.1.4 Freedom to manage religious affairs. - Article 26

Subject to public order, morality and health, every religious denomination or any section thereof shall have the right-

a. to establish and maintain institutions for religious and charitable purposes;

b. to manage its own affairs in matters of religion;

c. to own and acquire movable and immovable property; and

d. to administer such property in accordance with law.^[43]

The accepted definition of a "denomination" is" A collection of individuals classed together under the same name: a religious sect or body having a common faith and organization and designated by a common name". Thus a denomination is a cohesive body cemented by the essentials of its common creed.^[44]

Under Article 26(b) a religious denomination or organisation is free to manage its own affairs in ‘MATTERS OF RELIGION’. The State cannot interfere in the exercise of this unless they run counter to public health and morality. The right is, it is to be noted, confined to “matters of religion”. The term “matters of religion” includes religious practices, rites and ceremonies considered essential for the practice of religion.

In Bira Kishore Dev vs. State of Orissa, the Shri Jagannath temple Act took the management of secular activities from the Raja of Puri and vested it in committee constituted under the act. The Court held the act to be valid as it didn’t infringe religious aspect.

In respect of Article 26 (C) and 26 (d), a religious denomination has the right to acquire and own property and administer such property in accordance with law. In Rati Lal vs. Stae of Bombay, a law which took away the right of administration altogether from a religious denomination was considered to be violative of right guaranteed by art. 26 (D).^[45]

Article 27: Freedom as to payment of taxes for promotion of any particular religion is stated in the Article.^[46]

Article 28: This Article includes freedom as to attendance at religious instruction or religious worship in certain education institutions.

Article 30: Right of minorities to establish and administer educational institutions is scripted

Article 32:- : Remedies for enforcement of rights conferred by this part have been included in the Article; aggrieved party can directly go to Supreme Court for their violation of the Fundamental Rights.

2.2 Fundamental Duties

Fundamental Duties of citizens serve a useful purpose. In particular, no democratic polity can ever succeed where the citizens are not willing to be active participants in the process of governance by assuming responsibilities and discharging citizenship duties and coming forward to give their best to the country.

The fundamental duties are defined as the moral obligations of all citizens to help promote a spirit of patriotism and to uphold the unity of India. These duties set in part IV-A of the Constitution, concern individuals and the nation. They are not legally enforceable. They are held by the Supreme Court to be obligatory for all citizens.

The Fundamental Duties of citizens were added to the Constitution by the 42nd Amendment in 1976, upon the recommendations of the Swaran Singh Committee that was constituted by the Government of India earlier that year to study the question of amending the Constitution. The recommendations were passed in 1976 and came into effect on 3rd January, 1977. Originally ten in number, the Fundamental Duties were increased to eleven by the 86th Amendment in 2002.

The exact duties of every citizen of India according to the Constitution are:

1. to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

2. to cherish and follow the noble ideals which inspired our national struggle for freedom;

3. to uphold and protect the sovereignty, unity and integrity of India;

4. to defend the country and render national service when called upon to do so;

5. to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

6. to value and preserve the rich heritage of our composite culture;

7. to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

8. to develop the scientific temper, humanism and the spirit of inquiry and reform;

9. to safeguard public property and to abjure violence;

10. to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement;

11. who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years ^[47]

3 Enforceability of Fundamental Rights and Fundamental Duties

3.1 Enforceability of Fundamental Rights - Article 32

Article 32 of the Constitution of India guarantees the enforceability of fundamental rights for all the citizens of India. Article 32 of the Indian Constitution states:-

3.1.1 Remedies for enforcement of rights conferred by this Part 3 of the Indian Constitution

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the Fundamental Rights.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.^[48]

The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of the Constitution for the violation of fundamental rights guaranteed under Part – III of the Constitution. Any provision in any Constitution for Fundamental Rights is meaningless unless there are adequate safeguards to ensure enforcement of such provisions. Since the reality of such rights is tested only through the judiciary, the safeguards assume even more importance. In addition, enforcement also depends upon the degree of independence of the Judiciary and the availability of relevant instruments with the executive authority. Indian Constitution, like most of Western Constitutions, lays down certain provisions to ensure the enforcement of Fundamental Rights.These are as under:

(a) The Fundamental Rights provided in the Indian Constitution are guaranteed against any executive and legislative actions. Any executive or legislative action, which infringes upon the Fundamental Rights of any person or any group of persons, can be declared as void by the Courts under Article 13 of the Constitution.

(b) In addition, the Judiciary has the power to issue the prerogative writs. These are the extra-ordinary remedies provided to the citizens to get their rights enforced against any authority in the State. These writs are - Habeas corpus, Mandamus, Prohibition, Certiorari and Quo-warranto. Both, High Courts as well as the Supreme Court may issue the writs.

(c) The Fundamental Rights provided to the citizens by the Constitution cannot be suspended by the State, except during the period of emergency, as laid down in Article 359 of the Constitution. A Fundamental Right may also be enforced by way of normal legal procedures including a declaratory suit or by way of defence to legal proceedings.

However, Article 32 is referred to as the "Constitutional Remedy" for enforcement of Fundamental Rights. This provision itself has been included in the Fundamental Rights and hence it cannot be denied to any person. Dr. B.R.Ambedkar described Article 32 as the most important one, without which the Constitution would be reduced to nullity. It is also referred to as the heart and soul of the Constitution. By including Article 32 in the Fundamental Rights, the Supreme Court has been made the protector and guarantor of these Rights. An application made under Article 32 of the Constitution before the Supreme Court, cannot be refused on technical grounds.^[49] In addition to the prescribed five types of writs, the Supreme Court may pass any other appropriate order. Moreover, only the questions pertaining to the Fundamental Rights can be determined in proceedings against Article 32. Under Article 32, the Supreme Court may issue a Writ against any person or government within the territory of India. Where the infringement of a Fundamental Right has been established, the Supreme Court cannot refuse relief on the ground that the aggrieved person may have remedy before some other court or under the ordinary law.

The relief can also not be denied on the ground that the disputed facts have to be investigated or some evidence has to be collected. Even if an aggrieved person has not asked for a particular Writ, the Supreme Court, after considering the facts and circumstances, may grant the appropriate Writ and may even modify it to suit the exigencies of the case. Normally, only the aggrieved person is allowed to move the Court.^[50] But it has been held by the Supreme Court that in social or public interest matters, any one may move the Court. A Public Interest Litigation can be filed before the Supreme Court under Article 32 of the Constitution or before the High Court of a State under Article 226 of the Constitution under their respective Writ Jurisdictions. There are mainly five types of Writs –

(i)                Writ of Habeaus Corpus,

(ii)              Writ of Mandamus,

(iii)            Writ of Quo-Warranto,

(iv)             Writ of Prohibition, and

(v)              Writ of Certiorari.

1. Writ of Habeas Corpus:

It is the most valuable writ for personal liberty. Habeas Corpus means, "Let us have the body." A person, when arrested, can move the Court for the issue of Habeas Corpus. It is an order by a Court to the detaining authority to produce the arrested person before it so that it may examine whether the person has been detained lawfully or otherwise. If the Court is convinced that the person is illegally detained, it can issue orders for his release

2. The Writ of Mandamus:

Mandamus is a Latin word, which means "We Command". Mandamus is an order from a superior court to a lower court or tribunal or public authority to perform an act, which falls within its duty. It is issued to secure the performance of public duties and to enforce private rights withheld by the public authorities. Simply, it is a writ issued to a public official to do a thing which is a part of his official duty, but, which, he has failed to do, so far. This writ cannot be claimed as a matter of right. It is the discretionary power of a court to issue such writs.

3. The Writ of Quo-Warranto:

The word Quo-Warranto literally means "by what warrants?" It is a writ issued with a view to restraining a person from acting in a public office to which he is not entitled. The Writ of quo-warranto is used to prevent illegal assumption of any public office or usurpation of any public office by anybody. For example, a person of 62 years has been appointed to fill a public office whereas the retirement age is 60 years. Now, the appropriate High Court has a right to issue a Writ of quo-warranto against the person and declare the office vacant.

4. The Writ of Prohibition:

Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This Writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. It is a Writ issued by a superior court to lower court or a tribunal forbidding it to perform an act outside its jurisdiction. After the issue of this Writ proceedings in the lower court etc. come to a stop. The Writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, prohibiting the latter to continue proceedings in a particular case, where it has no legal jurisdiction of trial. While the Writ of mandamus commands doing of particular thing, the Writ of prohibition is essentially addressed to a subordinate court commanding inactivity. Writ of prohibition is, thus, not available against a public officer not vested with judicial or quasi-judicial powers. The Supreme Court can issue this Writ only where a fundamental right is affected.

5. The Writ of Certiorari:

Literally, Certiorari means to be certified. The Writ of Certiorari is issued by the Supreme Court to some inferior court or tribunal to transfer the matter to it or to some other superior authority for proper consideration. The Writ of Certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court. In other words, while the prohibition is available at the earlier stage, Certiorari is available on similar grounds at a later stage. It can also be said that the Writ of prohibition is available during the tendency of proceedings before a sub-ordinate court, Certiorari can be resorted to only after the order or decision has been announced. There are several conditions necessary for the issue of Writ of Certiorari, which are as under:

(a) There should be court, tribunal or an officer having legal authority to determine the question of deciding fundamental rights with a duty to act judicially.

(b) Such a court, tribunal or officer must have passed order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or law. The order could also be against the principle of natural justice or it could contain an error of judgment in appreciating the facts of the case.^[51]

3.2 Enforceability of Fundamental Duties

The Fundamental Duties are not enforceable in any court of law unlike the Fundamental Rights which are protected by the judiciary in view of infringement by executive or governmental action. The Fundamental Duties impose obligation on the citizen to observe a certain code of conduct which helps in the progress and development of the society and the nation. The Fundamental Duties were introduced into the Constitution by the 42^nd Amendment Act, 1976 by the Indira Gandhi government. Their main function was to put national interests over individual interests. Over the years, several questions have been raised over the enforceability of the Fundamental Duties. However, it has been held that Fundamental Duties are not enforceable in India.

These are the Fundamental Duties according to the Constitution of India. In the recent years, the Supreme Court has suggested the Government to draft a law to enforce Fundamental Duties. The Government is yet to take up this suggestion but such a move will surely go a long way in helping India to become a better nation.^[52]

4 Critical Analysis

Indian Constitution was written after a though analysis of existing constitution of the world. The framers of the constitution have incorporated the good things from all the places. As such it is more fair and consistent than religious books. It is for the foresight of the framers of the constitution that the country is integrated and has progressed. While the framers had thought about a lot of things, the one thing that they probably missed was the safeguard against the degrading morality of politicians.^[53]

4.1 Scope Of Fundamental Rights:

Fundamental Rights are those rights and freedoms of the people of India, which enjoy constitutional recognition and guarantee. The Supreme Court of India and State High Courts have the power to enforce Fundamental Rights. Supreme court is the guardian protector of fundamental rights.

Technically speaking, the rights specified in Part III (Art 12 to 35) of the constitution are the fundamental rights available to the citizens of India. In the case of Menaka Gandhi vs Union of India AIR 1978, J. Bhagvati has said that these rights represent the values that are cherished by the people of this country since the vedic ages and are calculated to protect the dignity of individual and to create conditions in which every human being is able to develop his personality to the fullest. These rights are necessary for a human being for attaining full social, intellectual, and spiritual status.^[54]

SC in A K Gopalan vs State of Madras AIR 1950 had held that the various rights given under part III talk about different things and are not be interlinked. The SC in Menaka Gandhi vs. Union of India AIR 1978 case, however, has rightly rejected this view. In this case, J Bhagvati said that the role of SC should be to interpret these rights in the widest possible manner and it should not attenuate these rights by being confined to their narrow definition. All these rights are not mutually exclusive and form an integrated theme of the constitution. J Beg said that their waters must mix to form a grand flow of unimpeded and impartial justice. Thus, any law that takes away the life or liberty of a person must also satisfy the test of reasonableness under art. 14.

Article 32 of the Constitution provides a guaranteed remedy for the enforcement of Fundamental Rights. The remedy is in the form of specific writs mentioned in the Article or any other appropriate order by the Supreme Court. A writ is a written court order by which one is summoned or required to do something. The writs mentioned in the Constitution have a long history in British constitution ^[55]law and are, therefore, understood with precise meaning and importance.

The writs mentioned in the Constitution are the following:

(1) Writ of Habeas Corpus,

(2) Writ of Mandamus,

(3) Writ of Certiorari,

(4) Writ of Prohibition, and

(5) Writ of Quo Warranto.

4.2 Scope Of Fundamental Duties:

Fundamental duties in India are guaranteed by the Indian Constitution in Part 4 A in Article 51 A. These fundamental duties are recognized as the moral obligations that actually help in upholding the spirit of nationalism as well as to support the harmony of the nation, as well as of the citizens. These duties are designed concerning the individuals and the nation. However, these fundamental duties are not legally enforceable. Furthermore, the citizens are morally obligated by the Constition to perform these duties. Fundamental Duties were added by the 42^nd Amendment Act in 1976.^[56]

5 Conclusion

5.1 Fundamental rights

Fundamental rights are those rights which are essential for the well being of a person. Part III of the Indian Constitution contains the list of Fundamental Rights; that guarantees civil liberties to all the citizens of India to live in peace and harmony without the fear of being suppressed by others. The Indian Judiciary has the discretion to punish those violating these fundamental rights under the provisions of the Indian Penal Code. No person can be deprived these rights pertaining to basic liberty in the form of human freedoms. It is the judiciary that safeguards these rights of the citizens. In some exceptional cases, i.e. during emergencies the State can impose restrictions on the enjoyment of these fundamental rights.

The Constitution provides for the enjoyment of 6 Fundamental rights. They are:

· Right to Equality (under Article 14 – Article 18)

· Right to Freedom (under Article 19 – Article 22)

· Right against exploitation (under Article 23 – Article 24)

· Right to Freedom of Religion (under Article 25 – Article 28)

· Cultural and Educational rights (under Article 29 – Article 30)

· Right to Constitutional remedies (Article 32)^[57].

Article 45 of the DPSP, which corresponds to article 13(1) of the ICESCR, states, “The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.” Thus, while the right of a child not to be employed in hazardous industries was, by virtue of article 24, recognized to be a fundamental right, the child’s right to education was put into the DPSP in part IV and deferred for a period of ten years.

The question whether the right to education was a fundamental right and enforceable as such was answered by the Supreme Court in the affirmative in Mohini Jain v. State of Karnataka (1992) 3 SCC 666.. The correctness of this decision was examined by a larger bench of five judges in Unnikrishnan J.P. v. State of Andhra Pradesh (1993) 1 SCC 645.The occasion was the challenge, by private medical and engineering colleges, to state legislation regulating the charging of “capitation” fees from students seeking admission. The college management was seeking enforcement of their right to business. The court expressly denied this claim and proceeded to examine the nature of the right to education. The court refused to accept the nonenforceablity of the DPSP. It asked:

It is noteworthy that among the several articles in Part IV, only Article 45 speaks of a time-limit; no other article does. Is it a mere pious wish, even after 44 years of the Constitution? Can the State flout the said direction even after 44 years on the ground that the article merely calls upon it to endeavour to provide the same and on the further ground that the said article is not enforceable by virtue of the declaration in Article 37. Does not the passage of 44 years—more than four times the period stipulated in Article 45 convert the obligation created by the article into an enforceable right. In this context, we feel constrained to say that allocation of available funds to different sectors of education in India discloses an inversion of priorities indicated by the Constitution. The Constitution contemplated a crash programme being undertaken by the State to achieve the goal set out in Article 45. It is relevant to notice that Article 45 does not speak of the “limits of its economic capacity and development” as does Article 41, which inter alia speaks of right to education. What has actually happened is more money is spent and more attention is directed to higher education than to—and at the cost of—primary education. (By primary education, we mean the education which a normal child receives by the time he completes 14 years of age.) Neglected more so are the rural sectors, and the weaker sections of the society referred to in Article 46. We clarify, we are not seeking to lay down the priorities for the Government—we are only emphasising the constitutional policy as disclosed by Articles 45, 46 and 41. Surely the wisdom of these constitutional provisions is beyond question.

The court then proceeded to examine how this right would be enforceable and to what extent. It clarified the issue thus: The right to education further means that a citizen has a right to call upon the State to provide educational facilities to him within the limits of its economic capacity and development. By saying so, we are not transferring Article 41 from Part IV to Part III—we are merely relying upon Article 41 to illustrate the content of the right to education flowing from Article 21. We cannot believe that any State would say that it need not provide education to its people even within the limits of its economic capacity and development. It goes without saying that the limits of economic capacity are, ordinarily speaking, matters within the subjective satisfaction of the State.^[58]

5.2 Fundamental duties

Fundamental Duties are the ones that are recognized as moral obligations the citizens are expected to perform. Article 51A under Part IV A of the Constitution of India speaks of the Fundamental duties. One cannot enforce these fundamental duties legally. It was through the 42nd Amendment that these duties were introduced in the Constitution.

There are 10 Fundamental duties that the citizens are expected to discharge. They are:

1. The citizens of India are expected to be abide by the Constitution and respect all its ideals. Likewise, the citizens are expected to respect the National Flag and the National Anthem.

2. The noble ideals that inspired our freedom struggle have to be cherished and followed.

3. The sovereignty, unity and integrity of India needs to be upheld and protected.

4. Citizens should be ready to defend and render national service towards India.

5. The spirits of common brotherhood and harmony have to be promoted by all the citizens wherein they need to transcend all forms of diversities pertaining to religion, language and region. All the practices that are derogatory to the dignity of women have to be renounced.

6. India has a rich, varied and composite culture and one needs to preserve it.

7. Natural environment including the forests, lakes, rivers and wildlife are expected to be preserved by the citizens.

8. People of India are expected to develop within themselves humanism, scientific temperament, and spirits of inquiry and reform.

9. Public property is expected to be safeguarded and violence needs to be avoided.

10. People are expected to strive for the excellence of all the individuals and collective activities to help in the development of the country.^[59]

5.3 How to differentiate between fundamental duties and fundamental rights

Fundamental rights and Fundamental duties are two terms that appear to be one and the same when it comes to their meaning and concept. Strictly speaking they are not so. They are two different terms that are to be understood differently.

Fundamental rights are rights and freedoms guaranteed by constitutions of some countries of the world to their citizens. These rights have a legal sanction and are enforceable in a court of law. On the other hand fundamental duty is the basic duty or responsibility bestowed on you as a citizen of the country. This is the most important difference between fundamental right and fundamental duty.^[60]

A fundamental right exists by virtue of the fact that you are a human being whereas a fundamental duty too exists as a responsibility on you as a human being. Hence the primary difference between fundamental right and fundamental duty is that fundamental right is based on privilege granted to you whereas fundamental duty is based on accountability.

Any citizen for that matter is expected to carry out fundamental duties fully well so that the society as a whole will be benefited. On the other hand any citizen for that matter can make full use of his fundamental rights pertaining to right to life, freedom of speech and writing, etc. It is interesting to note that freedom of speech is a fundamental right granted to a citizen by some of the democratic countries across the globe. Hence it is up to the individual to make use of the fundamental right granted to him.

Fundamental duties of every citizen include basic education, nurturing of children, social responsibility, official responsibility, payment of taxes, adherence to traffic rules and regulations and the like. Evasion of fundamental duties leads a citizen to problems. Abuse of fundamental right also leads a citizen to unwanted problems. These are the differences between fundamental right and fundamental duty.^[61]

7 References

7.1 Bibliography

1. Aron Silver. Difference Between Fundamental Rights and Fundamental Duties.

2. Austin, Granville. The Indian Constitution: Cornerstone of a Nation. New Delhi: Oxford University Press, 1999.

3. Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. transaction publishers, 1 Aug 2009.

4. B.B. TAyal & A. Jacob (2005), Indian History, World Developments and Civics

5. Rajmohan Gandhi. “Patel: A Life”.

6. UNI. "Sardar Patel was the real architect of the Constitution".

7. Durga Das Basu (1993). “Introduction to the Constitution of India (15th ed.).” New Delhi: Prentice Hall of India.

8. Austin, Granville (1999). “The Indian Constitution: Cornerstone of a Nation”. New Delhi: Oxford University Press.

9. Krishna Paul. Fundamental Rights in the Indian Constitution.

10. Bhadouria. Jai. Fundamental rights in the Indian Constitution.

11. Kumar, Arvind. Essay on right to Equality under the Indian Constitution.

12. Kathjoo, Riyaz. Fundamental Rights.

13. M.P. Jain. Indian Constitutional Law. Lexis Nexis Butterworths Wadhwa. Nagpur. 2008.

14. Seervai, H.M. Religiou Freedom under our Constitution and social reform.

15. Pandey, J.N. The Constitutional Law of India. Central Law Agency. Allahabad. 2012.

16. Austin, Granville. The Indian Constitution: Cornerstone of a Nation. New Delhi: Oxford University Press, 1999.

17. Silver, Aron. Difference Between Fundamental Rights and Fundamental Duties.

7.2 Internet Resources

1. http://web.archive.org/web/20060425230738/http://rajyasabha.nic.in/legislative/amendbills/XXXIX_2003.pdf

2. http://indiacode.nic.in/coiweb/amend/amend86.htm

3. http://www.lawyersclubindia.com

4. http://www.gyancentral.com

5. http://www.ias.org.in

6. http://www.preservearticles.com

7. http://www.greenvalleykashmir.com

8. http://www.legalblog.in

9. http://hanumant.com

10. http://www.advocatekhoj.com

11. http://www.netapedia.in/resources/fundamentalduties.php

12. http://www.timesofindia.com

13. http://hanumant.com/FundamentalRights.html/

14. http://www.kish.in/fundamental_rights_of_india/

15. http://www.legalservicesindia.com/article/article/position-of-fundamental-rights-during-emergency-589-1.html/

16. http://www.indianetzone.com/40/fundamental_duties.html /

^[1] Constitution of India-Part III Fundamental Rights.

^[2] B.B. Ayal & A. Jacob (2005), Indian History, World Developments and Civics, pg. A-23

^[3] ibid.

^[4] Rajmohan Gandhi. “Patel: A Life”. p. 206.

^[5] UNI. "Sardar Patel was the real architect of the Constitution". Retrieved from http://www.rediff.com/freedom/22patel.html on 2nd april, 2013.

^[6] B.B. Tayal & Jacob, A. (2005), Indian History, World Developments and Civics, pg. A-33

^[7] retrieved from http://en.wikisource.org/wiki/Constitution_of_India/Part_IV on 2nd april, 2013.

^[8] B.B. Tayal & Jacob, A. (2005), Indian History, World Developments and Civics, pg. A-33

^[9] B.B. Tayal & Jacob, A. (2005), Indian History, World Developments and Civics, pg. A-33

^[10] ibid.

^[11] B.B. Tayal & Jacob, A. (2005), Indian History, World Developments and Civics, pg. A-33

^[12] “Child labour in India”. Retrieved from Child labour in India on 2^nd april, 2013.

^[13] Index of perception of corruption, published by Transparency International.

^[14] "Citizenship (Amendment) Bill, 2003". Rajya Sabha. p. 5. Retrieved fromhttp://web.archive.org/web/20060425230738/http://rajyasabha.nic.in/legislative/amendbills/XXXIX_2003.pdf on 2nd april, 2013.

^[15] Durga Das Basu (1993). “Introduction to the Constitution of India (15th ed.).” New Delhi: Prentice Hall of India.

^[16] Durga Das Basu (2003). “Shorter Constitution of India (13th ed.).” Nagpur: Wadhwa & Co. p. 1972.

^[17]“ THE CONSTITUTION (EIGHTY-SIXTH AMENDMENT) ACT, 2002”. Retrieved fromhttp://indiacode.nic.in/coiweb/amend/amend86.htm on 2nd april, 2013.

^[18] Durga Das Basu (1993). “Introduction to the Constitution of India (15th ed.).” New Delhi: Prentice Hall of India.

^[19] Durga Das Basu (2003). “Shorter Constitution of India (13th ed.).” Nagpur: Wadhwa & Co. p. 1972.

^[20] Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, p. A-35

^[21] Durga Das Basu (2003). “Shorter Constitution of India (13th ed.).” Nagpur: Wadhwa & Co. p. 1972.

^[22] Durga Das Basu (1993). “Introduction to the Constitution of India (15th ed.).” New Delhi: Prentice Hall of India. p. 114-115

^[23] Austin, Granville (1999). “The Indian Constitution: Cornerstone of a Nation”. New Delhi: Oxford University Press. p. 114-115

^[24] Durga Das Basu (2003). “Shorter Constitution of India (13th ed.).” Nagpur: Wadhwa & Co. p. 1972. P.444

^[25] Durga Das Basu (2003). “Shorter Constitution of India (13th ed.).” Nagpur: Wadhwa & Co. p. 1972. P.466

^[26] Durga Das Basu (1993). “Introduction to the Constitution of India (15th ed.).” New Delhi: Prentice Hall of India. P.131.

^[27] Durga Das Basu (2003). “Shorter Constitution of India (13th ed.).” Nagpur: Wadhwa & Co. p. 1972. P.466.

^[28] Krishna Paul. Fundamental Rights in the Indian Constitution. Retrieved from http://www.lawyersclubindia.com on 7.04.13 at 5:35 p.m.

^[29] Bhadouria. Jai. Fundamental rights in the Indian Constitution. Retrieved from http://www.gyancentral.com on 7.04.13 at 5:40 p.m.

^[30] PRAFULL, K. Fundamental Rights to the Indian Constitution. Retrieved from http://www.ias.org.in on 7.04.13 at 5:30 p.m.

^[31] Kumar, Arvind. Essay on right to Equality under the Indian Constitution. Retrieved from http://www.preservearticles.com on 7.04.13 at 5:50 p.m.

^[32] Kathjoo, Riyaz. Fundamental Rights. Retrieved from http://www.greenvalleykashmir.com on 7.04.13 at 6:15 p.m.

^[33] Ibid 4.

^[34] Legal Blog. Right to Equality: Reasonable Classification and Supreme Court. Retrieved from http://www.legalblog.in on7.4.13 at 5:45 p.m.

^[35] Ibid 3.

^[36] Ibid 1.

^[37] Ibid 5.

^[38] Ibid 2.

^[39] Deshmukh Hanumant. Speech and Expression. Retrieved from http://hanumant.com on 7.04.13 at 6:35 p.m.

^[40] M.P. Jain. Indian Constitutional Law. Lexis Nexis Butterworths Wadhwa. Nagpur. 2008. P.407

^[41] Ibid 1.

^[42] Ibid 13.

^[43] Constitution of India, 1949. Retrieved from http://www.advocatekhoj.com on 7.04.13 at 5:35 p.m.

^[44] Seervai, H.M. Religiou Freedom under our Constitution and social reform. Retrieved from http://www.pucl.org on 7.4.13 at 5:50 p.m.

^[45] J.N. Pandey. The Constitutional Law of India. Central Law Agency. Allahabad. 2012. P.356.

^[46]

^[47] http://www.netapedia.in/resources/fundamentalduties.php

^[48] Constitution Of India, Article 32.

^[49] M.P Jain, Indian Constitution Law, 6^th Edition 2011, LexisNexis Wadhwa, Page 1436

^[50] Ibid at Page 1433

^[51] Ibid at Page Number 1439

^[52] Retrieved from http://www.timesofindia.com on 09-04-2013 at 11.45 P.M

^[53] Retrived from http://hanumant.com/FundamentalRights.html/ dated on April 13, 2013, at 06:12 pm

^[54] Retrived from http://www.kish.in/fundamental_rights_of_india/ dated on April 13, 2013, at 6:20 pm

^[55] Retrived from http://www.legalservicesindia.com/article/article/position-of-fundamental-rights-during-emergency-589-1.html/ dated on April 13, 2013, at -7: 54 pm

^[56] Retrived from http://www.indianetzone.com/40/fundamental_duties.html / dated on April 13, 2013, at 06:30 pm

^[57] Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. transaction publishers, 1 Aug 2009. Print.

^[58] S.K., Singh. “Fundamental rights in depth”. Civil service India.com. 2001. Web. 20 April. 2013.

^[59] Austin, Granville. The Indian Constitution: Cornerstone of a Nation. New Delhi: Oxford University Press, 1999. Print.

^[60] M. George. Fundamental rights and duties in Indian Constitution. Edurite.com. Web. 19 April, 2013.

^[61] Silver, Aron. Difference Between Fundamental Rights and Fundamental Duties,3 June, 2011. Web. 5 April 2013.

PREAMBLE OF INDIAN CONSTITUTION

2017-05-31T23:25:00.003-07:00

PREAMBLE OF INDIAN CONSTITUTION

TABLE OF CONTENT

Chapter 1: Introduction……………………………………………………………………………..07 1.1 Meaning of Preamble……………………………….……………………………….07

1.2 History of Preamble…………………………………...…………………………….08

1.3 The Preamble of the Constitution………………………...…………………………10

1.3 Object and Scope of Preamble……………………………………………………….10

1.4 Is it part of our Constitution or not…………………………………………………..13

Chapter 2: Content of Preamble……………………………...……………………….15

2.1 We, the people of India…………………………………………………...…………16

2.2 Sovereign..............................................................................................................…...17

2.3 Socialist..................................................................................................................... 18

2.4 Secular ...................................................................................................................... 20

2.5 Democratic ..................................................................................................................21

2.6 Republic……………………………………………………………………………...23

2.7 Justice……………………………………………………..…………….……………24

2.8 Liberty………………………………………………………………………………..25

2.9 Equality………………………………………………………………………….…...25

2.10 Fraternity……………………………………………………………….…………...26

Chapter 3: Interpretational value of the Preamble………………………………..…30

3.1 Preamble as Projector of ‘Desired Established State’……………………………….31

3.2 Preamble as an aid to interpretation of other statutes…………………………….....32

3.3 Preamble as provider of Authority to the Indian Constitution………………………33

Chapter 4: Preamble to Constitution: Comparative study…………………………..35

4.1 Preamble of constitution of USA…………………………………………………….36

4.2 Preamble of constitution of Canada………………………………………………….39

Chapter 5: Conclusion…..……….…………………………………………………......41

Bibliography …………….……….……………………………………………………..43

INTRODUCTION

After the attainment of independence the people of India were looking for a government of their own to fulfil the aspirations they had cherished during the freedom struggle. As the leaders had promised that after the independence India will have a government based on the ideas of democracy and justice, it was hence, necessary to give a proper shape to these ideas and ideals.^{[^[1]]}These were enshrined by the Constituent Assembly in the Constitution of India

The Constitution is the documentation of the founding faiths of a nation and the fundamental directions for their fulfilment. So much so, an organic, not pedantic, approach to interpretation, must guide the judicial process. The healing art of harmonious construction, not the tempting game of hair-splitting promoters the rhythm of the rule of Law.^{[^[2]]}

1.1 Meaning of Preamble

Preamble means a preliminary or introductory statement, especially attached to a statute or constitution setting forth its purpose.^[^{^[3]}^]Preamble is introductory part of the Constitution. The constitution of India opens with Preamble. The Preamble to a constitution is expected to embody the fundamental value and the philosophy on which the constitution is based and the aims and objectives which the founding fathers enjoined the polity to strive to achieve. Therefore, it is also regarded as the key to open the mind of the makers of the Constitution which may show the general purposes for which they made several provisions in the Constitution.^[^{^[4]}^] For these reasons the Preamble is also a legitimate aid in the interpretation of the provisions of the Constitution. It expresses “what we thought or dreamt for so long”^[^{^[5]}^]. It can be said that the constitution embodies a solemn form of all the ideas and aspirations for which the country had struggled during the British regime.^[^{^[6]}^] In simple words the Preamble serves as an introduction to the Constitution and highlights in brief the basic ideas for which the constitution stands and what the frames of the Constitution sought out to achieve for the citizens of India.

1.2 History of the Preamble:

The Preamble to Indian constitution is based on “Objective Resolution” of Nehru. Jawaharlal Nehru introduced objective resolution on December 13, 1947 and it was adopted by Constituent assembly on 22 January 1947. The Objective Resolution ^[^{^[7]}^] reads as follows:

A. This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution;

B. WHEREIN the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and

C. WHEREIN the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous Units, together with residuary powers and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in or assigned to the Union, or as are inherent or implied in the Union or resulting there from; and

D. WHEREIN all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and

E. WHEREIN shall be guaranteed and secured to all the people of India justice, social economic and political : equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and

F. WHEREIN adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and

G. WHEREBY shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilized nations; and

H. This ancient land attains its rightful and honoured placed in the world and make its full and willing contribution to the promotion of world peace and the welfare of mankind.

The drafting committee of the assembly in formulating the Preamble in the light of “Objective Resolution” felt that the Preamble should be restricted to defining the essential features of the new state and its basic socio-political objectives and that the other matters dealt with Resolution could be more appropriately provided for in the substantive parts of the Constitution. The committee adopted the expression ‘Sovereign Democratic Republic’ in place of ‘Sovereign Independent Republic’ as used in the “Objective Resolution,” for it thought the independence was implied in the word Sovereign. The committee added word Fraternity which did not occur in the Objective Resolution. “The committee felt that the need for fraternal concord and goodwill in India was never greater than now and that this particular aim of the new Constitution should be emphasized by special mention in the Preamble.”^[^{^[8]}^]In other respect the committee tried to embody in the Preamble “the spirit and, as far as possible, the language of “Objective Resolution.”

1.3 The Preamble of the Constitution:

The Preamble reads:

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST ^{[^[9]]}SECULAR ^{[^[10]]} DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity [and integrity]^{[^[11]]} of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

1.4 Object and Scope of Preamble:

Unlike the constitution of Australia, Canada or the USA, the Constitution of India has an elaborate Preamble. The purpose of Preamble is to clarify who has made the Constitution, what is its source, what are ultimate sanctions behind it; what is the nature of the polity which is sought to be established by the constitution and what are its goals and objectives?

The Preamble does not grant any power but it gives a direction and purpose to the Constitution. It outlines the objectives of the whole Constitution. The Preamble contains the fundamentals of the constitution. The preamble to an Act sets out the main objectives which the legislation is intended to achieve.^{[^[12]]}

Preamble states the objects which our constitution seeks to establish and promote and also aids the legal interpretation of the constitution where language is found ambiguous.^{[^[13]]} For a proper appreciation of aims and aspirations embodied in our constitution, therefore, we must turn to the various expressions contained in the Preamble. Combining the ideals of political, social and economic democracy with that of equality and fraternity, the Preamble seeks to establish what Mahatma Gandhi described as The India of my dreams ^{[^[14]]}, namely

“An India, in which the poorest shall feel that it is their country in

whose making an effective voice? an India in which all

communities shall live in perfect harmony”.

The Preamble to our Constitution serves several purposes:

a) It contains the enacting clause which brings the Constitution into force.

b) It declares the great rights and freedoms which people of India intended to secure to all its citizens.

c) It declares the basic type of government and polity which is sought to be established in the country.

d) It indicates the source from which our Constitution derives its authority.

Preamble indicates ultimate source for the validity of and the sanction behind the constitution is will of the people. Thus the source of the Constitution are the people themselves from whom the Constitution derive s its ultimate sanction. This assertion affirms the Republican and Democratic character of the Indian polity and Sovereignty of the people. The People of India thus constitute the sovereign political body who hold the ultimate power and who conduct the government of their elected representatives. As regard the nature of the Indian Polity, the Preamble to the Constitution declares India to be ‘Sovereign Secular Democratic Republic.’ As to the grants objectives and socio-economic goals to achieve which the Indian Polity has been established, these are stated in the Preamble.

These are:

i. social, economic and political Justice

ii. Liberty of thought, expression, belief, faith and worship;

iii. Equality of status and of opportunity;

iv. and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation.

1.5 Is it part of our Constitution or not

It has been highly a matter of arguments and discussions in past that whether Preamble should be treated as a part of constitution or not, that means whether or not a citizen of a nation to which he is subject to can challenge in the court of law if in case his rights have been infringed which were mentioned in the Preamble. And if not, then whether the Preamble is merely a preface or introduction piece of page in the book of our Constitution. And also whether the Preamble is a part of the Constitution would depend the resolution of the next question, which follows as a corollary- whether the Preamble can be amended, if at all.

The vexed question whether the Preamble is a part of the Constitution or not was dealt with in two leading cases on the subject:

1. Beruberi Case ^{[^[15]]}

2. Kesavananda Bharati case ^{[^[16]]}

Beruberi case was the Presidential Reference “under Article 143(1) of the Constitution of India on the implementation of the Indo-Pakistan Agreement Relating to Beruberi Union and Exchange of Enclaves” which came up for consideration by a bench consisting of eight judges headed by the Chief Justice B.P. Singh. Justice Gajendra Gadkar delivered the unanimous opinion of the Court. The court ruled out that the Preamble to the Constitution, containing the declaration made by the people of India in exercise of their sovereign will, no doubt is “a key to open the mind of the makers” which may show the general purposes for which they made the several provisions in the Constitution but nevertheless the Preamble is not a part of the Constitution.^{[^[17]]}

Kesavananda Bharati ^{[^[18]]}case has created history. For the first time, a bench of 13 judges assembled and sat in its original jurisdiction hearing the writ petition. Thirteen judges placed on record 11 separate opinions. To the extent necessary for the purpose of the Preamble, it can be safely concluded that the majority in Kesavanada Bharati case leans in favour of holding,

I. That the Preamble to the Constitution of India is a apart of Constitution;

II. That the Preamble is not a source of power or a source of limitations or prohibitions;

III. the Preamble has a significant role to play in the interpretation of statutes, also in the interpretation of provisions of the Constitution.

Kesavanada Bharati case is a milestone and also a turning point in the constitutional history of India. D.G. Palekar, J. held that the Preamble is a part of the Constitution and, therefore, is amendable under Article 368. He termed submission that the Fundamental Rights are an elaboration of the Preamble, as “an overstatement and half- truth”. Undoubtedly, the Constitution is intended to be a vehicle by which the goals set out are hoped to be reached.

It can be concluded that Preamble is introductory part of our Constitution. Preamble is based on the Objective Resolution of Nehru. Preamble tells about the nature of state and objects that India has to achieve. There was a controversial issue whether Preamble was part of Indian Constitution there were number of judicial interpretation but finally Kesavanada Bharati case it was held that the Preamble is a part of the Constitution.

Chapter 2

Contents of Preamble

Preamble is part of our constitution. The contents of Preamble play an important role in interpretation of our constitution. The Preamble to an Act sets out the main objectives which he legislation is intended to achieve.^{[^[19]]} It contains in a nutshell the ideals and aspirations of the Act. It is a sort of introduction to the statue and many a times very helpful to understand the policy and legislative intent. It embodies in a solemn form all the ideals and aspirations for which the country had struggled during the British regime.^{[^[20]]} The preamble is a key to open to the minds of the makers .The Preamble declares:

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST^[^{^[21]}^] SECULAR^[^{^[22]}^]DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity [and integrity]^{[^[23]]} of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

The aforesaid provision may be explained under the following headings :

2.1 We, the People of India:

The Constitution, as its preamble states, is a creation of the will of “the People of India” who have, as the preamble enunciates, solemnly resolved to constitute India into a “Sovereign Democratic Republic.” The idea of sovereignty involves freedom from all foreign control or domination. Both ideas combined together reassert the sovereignty and paramountacy of the people’s will over everything ^{[^[24]]} the same has been taken up from the Constitution of the United States of America and the United Nations Charter.

The words “we the people” indicate that the people of India are the source of authority behind the Constitution. The opening words of the preamble ('we the people of India') emphasize the ultimate authority of the people from whose will the constitution emerges. Since the Constituent Assembly enacted and adopted the constitution in the name of the people of India, the question has been asked whether the Assembly was really representative of the people of India.^[^{^[25]}^] This question was raised both within and outside the Assembly. The circumstances under which the Constituent Assembly came into being shows that it was impracticable to constitute such a body in 1946 with adult suffrage as its basis. No part of the country had the experience of adult suffrage. Dr. Ambedkar said in the floor of the Constituent Assembly in 1949, "I say that the Preamble embodies what is the desire of every members of the House, that the constitution should have its root, its authority, its sovereignty from the people that it has".

The Supreme Court in Union of India v. Madangopal, ^{[^[26]]}referred to the words “We the people of India” in the Preamble and observed that “our Constitution, as appears from the Preamble, derives its authority from the people of India.”

To sum it up we can say that the supreme power of the land rests with the people of India and the true sovereignty lies with the citizens of India as evident from the Preamble

2. 2. Sovereign:

Sovereign defined by R.H. Soltan ^{[^[27]]}“Sovereignty is the exercise of the final legal coercive power of the State.” According to another definition by Woodrow Wilson “Sovereignty is the daily operative power of framing and giving efficiency to the laws.”^{[^[28]]}In other words “sovereign” stands for the power which is absolute and uncontrolled within its own sphere. In the words of Cooley, “A State is sovereign when there resides within itself a supreme absolute power, acknowledging no superior.”^{[^[29]]}

India is 'Sovereign', in as much as it is free from any external control and having independent power and authority. Sovereignty of India does not come in the way of its remaining a member of the Commonwealth of Nations. Though the Queen of the UK is its symbolic head, it is a voluntary association and so does not violate India's sovereign status.

The word sovereign in the preamble means supreme or independent, India is internally and externally sovereign - externally free from the control of any foreign power and internally, it has a free government which is directly elected by the people and makes laws that govern the people. She allies in peace and war. ^{[^[30]]}

It means that sovereignty is permanent, and it continues un-interrupted as long as the state exists, and also it doesn’t ceases with the death or temporary dispossession of a particular bearer or the reorganization of the state but shifts immediately to a new bearer as the centre of gravity shifts from one part of a physical body to another when it undergoes an external change. It means that the powers are not divisible between sovereign and any other person, as the sovereign is absolute authority in a sovereign state. We find divisibility of powers in India when we see our so called “sovereign” of the country, he has no absolute authority over anything, neither can he make his own law of his own discretion nor can he revoke any of them. A sovereign in a state is exclusive and has none to be competed with. This characteristic of sovereignty is nowhere found in India as we see that the there is no “exclusive sovereign” or a Individual sovereign. It’s very much obvious that for a country claiming to be having sovereignty must have a sovereign and if we consider the real meaning of sovereignty, it means that a sovereign state is to be headed by a supreme power known as the sovereign which in strict sense is absent in India .

2.3 Socialist :

The term Socialist has been inserted in the Constitution of India by 42nd Amendment Act, 1976. Even prior to this amendment the idea was implicit in the constitution, in the form of directive principles of state policy and in the words of Preamble, 'Justice social, economic and political' as well as 'Equality- of status and opportunity.' General meaning of socialism implies the control of state over the means of production. In the context of Indian constitution, we can say our move is for democratic socialism and not for provided communistic socialism. Insertion of this word does not imply any commitment to a particular economic order.

Our constitution appears more committed to the object or outcome of socialism i.e. justice social economic and political, there may be different ways or means to realise these objectives. This way may be different or some time contrary to the classical and conventional concept and ideals of socialism. However all these means must nourish the guarantee for a system free from all kinds of exploitation. Socialism in India has been accepted in the meaning of 'Democratic Socialism'. The main aim of the expression was to bring about a balance in the existing economic disparities.^[^{^[31]}^]

In D.S. Nakara v. Union of India,^{[^[32]]} the Court observed that “the basic framework of socialism is to provide a descent standard of life to the working people and especially provide from cradle to grave. This amongst others on economic side envisaged economic equality and equitable distribution of income.” The principal aim of a socialist State, the Supreme Court held, was to eliminate inequality in income and status and standard of life. Thus we can say that democratic socialism aims to end poverty, ignorance, disease and inequality of opportunity.^{[^[33]]}

In Excel Wear v. Union of India ,the supreme court considered the effect of the word socialist in the preamble .the court held that the addition of the word “socialist” might enable he courts to lean more in favour of nationalization and state ownership of an industry but so long as private ownership of industries is recognized and governs an overwhelming large proportion of our economic structure, the principles of socialism and social justice cannot be punished to such an extent so as to ignore completely, or to a very large extent, the interest of another section of the public namely – the private owners of the undertaking.

2.4. Secularism:

The word 'secular' has also been added by the 42nd constitution Amendment Act, 1976. It highlights that the state shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and right freely to practice and propagate religion. The provisions of right to freedom of religion ensuring freedom of conscience and free profession, practice and propagation of religion, freedom to manager religious affairs and right to equality, clearly implied that India is a "secular Republic”. The Preamble reflects the way of life adopted by Indian citizens for themselves after independence. In fact every civilization has also been a mirror of way of life as well as reflecting movement of human spirit. Religion in each civilizastion has indicated about the faith of human beings in absolute values and a way of life to realize them.

The notion of secularism that developed in India has been vastly different from its original western notion. The traditional western vision of secularism has been the negation of all things religious in political functioning. However the Indian concept of secularism is completely different, stemming from Sarva Dharma Sambhava: it is not that the state has nothing to do with religion and religion has nothing to do with the state, but the concept of secular state has been understood as one in which all religions have an equal status in the eyes of the state. In a Secular State, the State regulates the relationship between men. It is not concerned with the relation of man with God ^[^{^[34]}^].

The concept of Secularism is also contained in Articles 25 to 30 of the Constitution by way of Right to Freedom of Religion. The Supreme Court in St. Xavier’s College v. State of Gujarat,^{[^[35]]} explained that India “is neither anti -God, nor pro-God; it treats alike the devout, the antagonistic and the atheist. It eliminates God from the matters of the State and ensures that no one shall be discriminated against on t he ground of religion.” That every person if free to go to the God or Heaven in his own ways. And, that worshipping God is left to be dictated by his own conscience.^{[^[36]]}

2.5. Democratic:

That this Democratic stands for the good of all the people is embodied in the concept of a Welfare State that inspires the Directive Principles of State policy. The economic justice assured by the Preamble can hardly achieved if the democracy envisaged by the Constitution were confined to a political democracy. Dr. Radhakrishnan has put it-

“Poor people who wander about, find no work, no wages and starve, whose lives are a Continual round of sore affliction and pinching poverty, cannot be proud of the constitution or its law.”

This shows that the Indian Constitution provides not only political but also social democracy, as explained by Dr. Ambedkar in his speech in Constituent Assembly:

“Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life that recognizes liberty, equality and fraternity, which are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality; equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity.”

The state in a democratic society derives its strength from the cooperative and dispassionate will of all its free and equal citizens. Social and economic democracy is the foundation on which political democracy would be a way of life in the Indian polity . The banishment of poverty, not by expropriation of those who have, but by the multiplication of the national wealth and resources and an equitable distribution thereof amongst all who contribute towards its production, is the aim of the state envisaged by the Directive Principles to the extent that this goal is reached. The ideal of economic justice is to make equality of status meaningful and life worth living at its best removing inequality of opportunity and of status- social, economic and political.

Democracy is a form of government in which people are governed by their own elected representatives. It is a government of the people, for the people and by the people. In this system of government, it is the people who are supreme and sovereign. They control the government. They are free to elect a government of their own choice. Freedom of choice is the core of democracy .India is 'democratic', as it has chosen a representative and responsible system of government under which those who administer the affairs of the state are elected by the electorate and accountable to them.^[^{^[37]}^] In practice, people depict majority of the population which has vested powers to take decisions in the matters. They very resolutions are carried and obeyed by the masses of the country. The concept does not permit the enforcement of the decisions on minority by majority. Rather, democracy thrives on the willing co-operation of minority with the majority. In other, words minority and opposition parties to have a vital role in the working of a democratic set up. Democracy guarantee some basic rights and freedom for individuals and its voters. These rights are known as fundamental rights. Democracy imposes rule by the adopted President of India. The practice continues for all the matters pertaining ruling in democracy. The system guarantees freedom for speech, equality and right for worship among other rights to the people.

The Supreme Court in the case of Union of India v. Association for Democratic Reforms,^[^{^[38]}^] Observed: “a successful democracy posits an ‘aware’ citizenry”. “Democracy cannot survive without free and fair elections, without free and fairly informed voters.” This clearly emphasizes the value of the power bestowed upon the citizens of India to elect the government which is also essential for the functioning of the democracy.

2.6. Republic:

The term republic is used in distinction to ‘monarchy’, in other words India is a republic because the head of the state is not a hereditary monarch. Hence, in India the head of the state is not a hereditary positions as seen in the case of queen of England; the head of the state in India is an elected person elected by the citizens of India. The constitution of India sets up in India a ‘republican form of government’, in which, the ultimate power resides with the body of people, enfranchised by universal adult franchise. The president is the executive head of the state, is elected by the people and holds office for the term of five years.^{[^[39]]}

2.7 Justice:

The term justice briefly speaking is the harmonious reconcilement of individual conduct with the general welfare of the society. An act or conduct of a person is said to be just if it promotes general well being of the community. The constitution of India professes to secure to its citizens

i. Social justice: Social is a fundamental right. Social Justice is the comprehensive form to remove social imbalance and will build up a welfare state . Combining the ideals of political, social and economic democracy with that of equality and fraternity, the Preamble seeks to establish what Mahatma Gandhi described as The India of my dreams, namely

“An India, in which the poorest shall feel that it is their country in whose making an effective voice? An India in which all communities shall live in perfect harmony.”

The term "social justice" implies several sound and eminently desirable concepts enunciated for the good of society in general, and of course it covers fair play for every section, especially the weaker groups in the population.

This seems unexceptionable and no one, however prejudiced or narrow minded, would object to the promotion of this ideal. And yet the actions of countless people in this country, day after day, believe their words. The reckless flouting of the concept of social justice, and the denial of equal opportunities in life which this postulates, all reflect a tendency that is anti-national and marks totally unfair and unjustified behavior.

ii. Economic justice: Economic justice means justice from the standpoint of economic force. In short, it means equal pay for equal work, that every person should get his just his dues for his labour, irrespective of his caste, creed, sex and social status.

iii. Political justice: Political justice means the absence of any arbitrary distinction among men in political matters. The constitution has adopted the system of universal adult suffrage to secure political justice. In order that the justice in real sense be secured to the people of India, the constitution, not only secures equality of status and of opportunity by prohibiting discrimination on various grounds.

2.8 Liberty:

Liberty has been derived from Latin word ‘liber’ which means free. The term ‘liberty’ is used in both positive as well as negative sense. As a negative concept liberty means the absence of all undue or arbitrary interference with individual’s action on the part of the state. In positive sense, liberty comprises of liberties or rights which are considered essential for an individual to attain his potentialities and for the perfection of national life. The constitution of India professes to secure liberty of thought, expression, belief, faith and worship, which are regarded essential to the development of the individual in the nation.

2.9 Equality:

Equality of status and opportunity is secured to the people of India by abolishing all distinctions or discriminations by the state, between citizen and citizen , on the ground of race ,religion, caste, sex or place of birth and by throwing open ‘public places’ to all the citizens. The constitution also abolishes untouchability and titles by Article 17 and 18 respectively .this helps in securing equality of opportunity in matters of employment or appointment to any office under the state under article 16 of the Constitution.

The concept of equality does not mean absolute equality-among human beings which is physically not possible to achieve. It is a concept implying absence of any special privilege by reason of birth, breed or the like in favour of any classes to the ordinary law of the land. The guarantee of equality before law is an aspect of what Dicey calls the "Rule of Law" in England. The rule has got some exceptions under the provisions of the Constitution for instance, foreign diplomates, President of India, State Governors. Article 14 permits classifications but prohibits class lagislations. The classification is to be reasonable and it must fulfil two conditions, namely, it must be founded on intelligible differentia and the differentia must have a rational relation to the object sought to be achieved.

In Maneka Gandhi Justice Bhagwati propounded that the concept of equality is a dynamic concept with many aspects, and dimensions and it cannot be imprisoned within traditional and doctrinaire limits.

2.10 Fraternity:

The fraternity which is professed in the Preamble is not confined within the bounds of the national territory; it is ready to overflow them to reach the loftier ideal of universal brotherhood; which can hardly be better expressed than in the memorable words of Pandit Nehru:

“the only possible, real object that we, in common with other nations, can have is the object of co-operating in building up some kind of a world structure, call it one world, call it what you like.”

Fraternity means feeling of brotherhood, brotherliness, a feeling that all people are children of the same soil, the same motherland. There is no provision in the constitution which reflects ‘fraternity’ as an object. However there are provisions in the constitution such as common citizenship, the right of the citizen to move freely, to reside and settle in any part of the territory of India etc., which generate there spirit of brotherhood.^{[^[40]]}

The Unity and Integrity ^{[^[41]]}of the Nation sounds the concern of the founding fathers of the Constitution regarding the maintenance of the Independence of the nation as well as the success of the democracy in India. Therefore, while securing rights and freedoms for the individuals, they incorporated in the Constitution elaborate provisions conferring on the powers in the form of emergency provisions as to help contain any forces threatening and endangering the unity and integrity of the country. India has been declared as a Union of States and is intended to put an end to the separatist tendencies.

One of the members of the Constituent Assembly (Pundit Thakur Das Bhargav) rose to poetic heights when he said, "The Preamble is the most precious part of the Constitution. It is the soul of the Constitution. It is a key to the Constitution. It is a jewel set in the Constitution." The Preamble of the Constitution of India is one of the best of its kind ever drafted. Both in ideas and expression it is an unique one. It embodies the spirit of the constitution to build up an independent nation which will ensure the triumph of justice, liberty, equality and fraternity.

42^ND AMENDMEND OF THE CONSTITUTION

India after 25 years of its constitution as a republic was now a sovereign, Socialist, Secular, Democratic Republic. Nothing was changed in the main body of the constitution to match these adjectives. The other portions of the 42^nd amendments were to give the autocratic power to the executive by suspending the fundamental rights of the citizens. This act in itself was neither socialist nor secular. Thus logically the amendment accepted that the constitution in its originality was secular and socialist enough that it did not need any modification to suit the additions in preamble. The funniest part of this exercise is that after the end of Indira Rule and Janta Party coming in power the emergency provisions were removed from the constitution by the 44th amendment but the additions to the preamble were left untouched. Thus endorsing the enhanced emphasis on the socialist and secular nature of the constitution.

Though there are no changes in the original provisions, in practice secularism is being unnecessarily pronounced in all the governmental actions. The political parties for their petty electoral benefit tend to appeasement of so called minorities in the name of secularism. Secularism is used to denigrate everything traditional and Hindu in origin. The famous instance of the controversy over Saraswati Puja in the convention of education ministers during the NDA rule started by the objection raised by a few politicians. The issue was raised under the garb of secularism. Media gave great publicity to the issue. No one bothered to check the constitutionality of the claim. Recently the issue of Ayud Puja and Sarasavati Puja was raised before the Madras high court in a PIL. The high court has rejected the contention that performing Puja in the offices is against the secular nature of the government. “Showing respect to the place of work and the objects of work will in no way offend the feelings of others or affect secularism. Ayudha Puja is referable to prayer, reverence or respect given to objects through which an individual performs his profession or occupation. Ayudha Puja in its real terms transcends all religion,” a division bench of Justice R Sudhakar and Justice Aruna Jagadeesan has said. This should make the constitutional position clear on the issue. The practice of the media and intellectuals is very pathetic on this issue as it was well demonstrated by the Jaipur Lit fare issue. Even though on his very channel every representative of Islam from Lakhnau to Hyderabad was vociferously demanding that Sulman Rushdie should not be allowed to come to India, the star anchor Arnab Goswami kept on saying fringe elements of the Muslim society are opposed. This is the way the faulty concept of secularism corroborated by another unfounded concept of minority has developed into a divisive element in the constitutional discourse.

Socialism is very hard to define. But it can be said without slightest of doubt that the Indian state in last two decades has abandoned socialism as an economic policy. From 1991 we claim to have tried to follow the liberal free market economics. But according to the constitution Indi India is still a Socialist Republic.

Chapter 3

Interpretational Value of the Preamble

This chapter deals with the importance and role of preamble of Indian Constitution and provides for why it is immensely important to have the preamble as it plays numerous roles indicating the source from which the constitution derives its authority, states the objects which the constitution seeks to establish and promote, acts as a guiding principle in the interpretation of constitution and framing of other important statutes.

The Preamble of Indian Constitution reflects the basic structure and the spirit of the Constitution. It is regarded as the preamble serves as a channelizing tool for the interpretation of the constitution as a whole. The preamble acts as the preface of the constitution of India and lays down the philosophical ideas. It represents the entire constitution in its written words. It contains the basic structure of the constitution and thus considered to be a vital part. The preamble is significant because it highlights the type of society and government it wishes to establish. However, the preamble does not contain laws enforced in a court but, no law can be enacted or amended in a manner that violates the spirit of the preamble. Thus the preamble of the constitution of India is un-amendable.

Preamble of Constitution of India is an introductory note to the constitution. It is like summary for our constitution, regard as soul of it. To understand the motto of constitution Preamble works as a guide so we can understand how Preamble is important.

The Preamble declares four aims in the governance of India-

i. Justice- social, economic and political;

ii. Liberty of thoughts, expression, belief, faith and worship;

iii. Equality of status and opportunity; and

iv. Fraternity assuring the dignity of the individual and the unity and integrity of the nation.

3.1 Preamble as Projector of ‘Desired Established State’

The Preamble proclaims the solemn resolution of the people of India to constitute India into a 'Sovereign socialist, secular democratic republic. The Preamble was adopted with the constitution in the constituent assembly. It came into effect in 1950 along with the constitution. The original draft of the constitution opened with the words ‘Sovereign Democratic Republic’ in the first line. The words ‘Socialist and Secular’ were inserted by the 42nd amendment in 1976. The same amendment contributed to the changes of the words unity of the nation into unity and integrity of the nation. The significance of the preamble of Indian constitution lies in the ‘We the People’. These words emphasizes that the ultimately the powers are vested in the hands of the people of India. The expression state that the constitution is made by and for the people of India. In addition to that the preamble also lays down the essential national goals for every citizen justice, liberty, equality and fraternity.

According to the preamble of the constitution of India, the word Sovereign occupies a vital role in the country. It means supreme or independent and embodies India is internally and externally sovereign and is free from the control of any foreign power. Furthermore, the country has a free government which is directly elected by the people and makes laws that govern the people ^{[^[42]]}.

The word Socialist also has enormous significance as it implies economic and social equality. The word was added by the 42nd amendment act ^{[^[43]]}, 1976 during the emergency. In addition to that Social equality identifies the absence of discrimination on the grounds only of caste, colour, creed, sex, religion or language. Besides, social equality has equal status and opportunities. The preamble also guarantees secularism.^{[^[44]]} The word Secularism was also inserted into the preamble by the 42nd amendment act 1976. Secularism implies equality of all religions and religious tolerance and does not identity any state religion.

The preamble of Indian Constitution also puts forth the words Democratic and Republic. India follows a Democratic form of government. The people of India elect their government at all levels such as Union, State and local by a system of universal adult franchise. India is also a Republic, in a country where the head of the state is elected directly or indirectly, for a fixed tenure. The president of India is the titular head of the state. Thus, the preamble plays a pivotal role and serves two important purposes including and indicate to the source from which the constitution derives its authority and stating the objects, which the Constitution seeks to establish and promote.

3.2 Preamble as Interpreter of Legislation and statutes:

The Constitution of India starts with a preamble which contains the spirit of the constitution and every legislation framed is in conformity with the spirit of the preamble and thus the constitutionality and objects of the statutes are tested. The preamble also bears the aims and objectives that the people of India seek to establish with the establishment of Indian Constitution , any legislation made is made with the purpose and in accordance with the objectivity of the preamble itself. So, ‘Preamble is the Legislation in a nutshell’. It is a preparatory statement. It contains the recitals showing the reason for enactment of any legislation and prevents the legislation to fall in the arms of ambiguity.

In Kashi Prasad v. State of UP ^{[^[45]]} the court held that even though the preamble cannot be used to defeat the provisions of the legislation itself, but it can be used as a vital source in making the interpretation of the legislation

3.3 As provider of Authority to the Indian Constitution:

The preamble to the constitution of India begins with ‘We the People of India’, thus conferring that the authority of the constitution lies in the people of India, who have themselves led to the enactment of constitution for their own governance.

The provision of the constitution of India cannot be overridden by the Preamble.

In Re Berubari^{[^[46]]}, the Supreme Court held that the Preamble was not a part of the constitution and therefore it could not be regarded as a source of any substantive power ^{[^[47]]}.

In Keshavananda Bharati’s case^{[^[48]]}, the Supreme Court rejected the above view and held the preamble to be a part of the constitution. The constitution must be read in the light of the preamble. The preamble could be used for the amendment power of the parliament under Art. 368 but basic elements cannot be amended. The 42nd Amendment has inserted the words “Secularism, Socialism and Integrity” in the preamble.

General rules of interpretation of the constitution

1. If the words are clear and unambiguous, they must be given full effect.

2. The constitution must be read as a whole.

3. Principles of Harmonious construction must be applied.

4. The constitution must be interpreted in a broad and liberal sense.

5. The court has to infer the spirit of the constitution from the language.

6. Internal and External aids may be used while interpreting.

7. The Constitution prevails over other statutes.

Amendment to The Preamble

The issue that whether the preamble to the constitution of India can be amended or not was raised before the Supreme Court in the famous case of Keshavanand Bharti Vs. State of Kerala,1973. The Supreme Court has held that Preamble is the part of the constitution and it can be amended but, Parliament cannot amend the basic features of the preamble. The court observed, "The edifice of our constitution is based upon the basic element in the Preamble. If any of these elements are removed the structure will not survive and it will not be the same constitution and will not be able to maintain its identity."^{[^[49]]}

The preamble to the Indian constitution was amended through the 42nd amendment act 1976. And the words Socialist, Secular and Integrity were added to the preamble by the 42nd amendment Act, 1976, to ensure the economic justice and elimination of inequality in income and standard of life. Secularism implies equality of all religions and religious tolerance and does not identity any state religion. The word integrity ensures one of the major aims and objectives of the preamble ensuring the fraternity and unity of the state.

Chapter 4

Preamble to Constitution: Comparative Study

Preamble is introductory part of the Constitution. Every constitution has its own preamble. There is comparative study of preamble of USA and Canada as below:

4.1 The Preamble of the Constitution of USA

The preamble of the constitution of USA as follow:

“We the people of united states, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessing of liberty to ourselves, and our posterity, do ordain and establish this constitution for united states of America

Along with the title is mentioned, the date of signing the constitution by its framers and also the date on which it comes into effect. The preamble doesn’t acknowledge the fact that the constitution was framed by the delegates of the thirteen original states meeting in a convention, or that it was ratified, subsequently, by the states that had framed the constitution

a) The preamble of the constitution of United States of America may be analysed and commented upon clause by clause:“WE the people of united states”: These words emphasize the ultimate sovereignty of the people and indicate that the constitution is founded on the authority flowing from the people.

b) “In order to form a more perfect union”: The constitution which existed at that time had merely brought into existence or a sort of league of friendship. The feeble government was unable to cope up with its responsibilities and it was realized that if the union were to last , it must be strengthened . However it was an open matter whether the union as contemplated in that material time was to be a viable one or was to be one from which a state could break away at its will .The answer was ultimately provided by the result of the civil war, which established the principle that the authority conferred upon the union government by the various state was an irrevocable authority and that no state had the right to secede from the union.

c) “Establish justice”: Under the Article of co federation, there was no system of national court. In particular there was no machinery to decide inter – state disputes. The absence of the machinery was one more lacuna which was sought to be filled in by the new constitution

d) “Insecure domestic tranquility”: Shay’s rebellion in Massachusetts had demonstrated the complete helplessness of the co federal government to provide effective aid to the state government.

e) “Provide for the common defence:” The co federal government had no power to raise men or money although it had the power to declare war. It was imperative , therefore to give such power to the new central government

f) “Promote the general welfare and secure the blessing of liberty to ourselves and our posterity:” The co federal government had no power of legislation whatsoever, and was, therefore not entirely feasible to formulate or implement any policy for the welfare of the nation.

g) “Do ordain and establish this constitution for the United States of America:” For the first time the country had a sovereign national government .The constitution marked the emergence of the United States of America into a fully blossomed nationhood.

The preamble of the constitution of the USA, in a precise form contains a “declaration” and a descriptive objective. The declaration is to the effect that the people of United States “ordain and establish” the constitution for the United States of America. It is not a mere article of agreement among the thirteen states

On the other hand, the preamble of the constitution of India has serves two purposes:

a. It indicates the source from which the constitution derives its authority, and

b. It also states the objects which the constitution seeks to establish and promote. It is a key to open the mind of the makers

The constitution of India, like that of the united state of America, strikes one as a monumental piece prepared by men of great eminence and patriotism. Undoubtedly there is a difference between the constitution of U.S.A and India in phraseology and emphasis – more than a century and half has passed between the adoptions of two Constitutions, many world events of far-reaching social and economic consequence had taken in the meantime and people’s ideas had passed through radical transformations.

The constitution of U.S.A is the supreme law of the land. It guarantees fundamental right of person, property, and liberty. It is however , noteworthy that these right were incorporated in the constitution by a number of amendments effected after the constitution was promulgated .They were not enumerated in the original draft of the constitution .But by subsequent amendment individual liberty has been effectively safeguarded .Only 133 years later with 19 th amendment ,women acquired the right to vote

The rights of the citizen are made enforceable by recourse to judiciary. These right cannot be modified or suspended except by a constitutional amendment .Freedom of speech, Freedom of worship, of habeas corpus, no unreasonable search and seizure which constitute hallmark of a just society has become part parcel of the constitution

Rutgers Law Professor Albert Blaustein has pointed out “civil and political right of abstinence. They are right against the state .When you start talking about social and cultural right, you are asking for right of action, affirmative rights” . Another area of silence in the constitution –economic rights – the right to a job, the right to shelter, the right to food.

The constitution of U.S.A is based on popular sovereignty in the U.S.A is attributed to the people. Unlike the United Kingdom where the hereditary monarchy is the head of the state, the United States of America is a republic with the president as the elected head of the state. The constitution has derived its authority from the people.

Former C.J .Warren E. Burger chairman of the commission on the bicentennial of the United State Constitution has stated “no other charter of government had recognised so clearly that all legitimate political power flows from the people.

The constitution of the U.S.A opened a new era in the history of constitution , not only by its explicit description of the power of a balanced representative government but also by its birth in a public forum of the printed words .Widely literate people could read n judge the very words by which they would be governed

The constitution that emerged from the Philadelphia convention in mid September 1787 ,according to James Madison , “was nothing more than the draft of the plan , nothing but a dead letter , until life and validity were breathed into it by the voice of people , speaking through the several state convention “ .

Thus the constitution of the U.S.A is a unique constitution presenting a constitutional model entirely different from U.K. Its stability and strength is the envy of the different constitution of the world .Some of the developing democracies like Sri Lanka and Pakistan have opted for it . The constitution has aura of the sacred about it. It occupies a shrine up in the higher stretches of American reverence.^{[^[50]]}

3.2 The Preamble of the Constitution of the Canada

The constitution of Canada consists of many laws as well as political convention and judicial practices. the preamble state that the province of Canada nova Scotia and new Brunswick have expressed their desire to be federally united into one domain under the crown with the constitution similar in the Principle to that of the united kingdom

The preamble of the constitution has cited the four –fold objective:

i. To fulfil the desire of the constituent units of Canada to form into a union under the crown.

ii. That such a union would be conductive to welfare of the provinces and promote the interest of the British empire

iii. That a legislative authority and an executive government be provided for and

iv. To enable the eventual admission into the union of other parts of british north America

In compare to Canada Preamble Indian Preamble lays down main objective of state to be

i. To establish democratic, republic, sovereign, socialist and secular state

ii. To achieve Justice- social, economic and political

iii. Liberty of thoughts, expression, belief, faith and worship;

iv. Equality of status and opportunity; and

v. Fraternity assuring the dignity of the individual and the unity and integrity of the nation.

Prof. A. V. Dicey thought that preamble of Canada was inaccurate when it described the constitution of Canada .he has stated that if preamble were intended to express anything like whole truth ,for the world “kingdom “ ought to have been substituted by the states .^{[^[51]]}

As Indian Preamble lays down the basic structure of Indian Constitution which is not as such depicted in the Preamble of Canada and USA, so it can be concluded that Indian Preamble is more structured than Preamble of USA and Canada.

Chapter 5

Conclusion

The Constitution of India begins with a Preamble. The Preamble contains the ideals, objectives and basic principles of the Constitution. The salient features of the Constitution have evolved directly and indirectly from these objectives which flow from the Preamble.

Preamble is an introductory statement, stating the aims and objectives of the constitution. Accordingly, the preamble to the Indian constitution spells out the basic philosophy contained in the body of the Indian Constitution. The Preamble is so important because it highlights the type of society and government it wishes to establish. The preamble does not contains any law that can be enforced in the court of law but no law can be enacted or amended in a manner that it violates the spirit of Preamble ^{[^[52]]}.

In conclusion I would like to just say that this is very true that preamble is the basic part of any document and it is but obvious to our constitution because it is the supreme law of our country, but Is it true that our constitution is so complete and perfect. As we all knows that we have more than 108 amendments in our constitution. So before making any basic structure we have to first finalise the structure and the provisions of our constitution. And another thing is that if it is the part of our constitution or the basic structure of it then why we need these many cases or judicial reviews to finalise its existence. According to me the preamble is the topic which gives its status from the very beginning when any document, act or provision enacted. It gives the overview of that particular act so we can easily take the idea of what the act is all about. In constitution we can say that this plays a very big role to understand the provisions of the constitution. So if something plays a great role to understand the provision of any act then how that thing cannot be the part of it, and what is the other thing which talks about the preamble as the part of our constitution .this is the only answer to that according to me.

Bibliography

BOOK REFERED

ü Basu, Durga Das, Shorter Constitution of India, Volume 1, Lexis Nexis Butterworths Wadhwa, Nagpur, 2010.

ü Pandey, J.N., The Constitution of India, Central Law Agency, Allahabad, 2010.

ü Singh, Mahendra P. , Constitution of India., Eastern Book Company Lucknow, 2008.

ü Kumar, Narender, Constitutional Law of India, Allahabad Law Agency, 2008.

ü Kumar, Narender, Introduction to the Constitutional Law of India, 1^st Ed., Allahabad Law Agency, Allahabad, 2009.

ü Gauba, OP, An Introduction to Political Theory, Macmillan India Ltd., Delhi, 2007.

ü Oxford Dictionary & Thesaurus, 9^th Impression, 2007.

ü Majumdar , P.K., & Kataria , R.P, Commentary on the Constitution of India, Volume 1, Orient Publishing Company, Allahabad, 2009.

ü Bakshi , P.M., The Constitution of India, Universal Law Publishing Co., Delhi,2008.

ü Krishnaswami, Sir Alladi, Constituent Assembly Debates. Vol. 10

ü SR Myneni., Political Science for Law Students, Allahabad Law Agency, Allahabad,2006.

ü The Constitution Of India, Bare Act, Universal Law Publishing Co. Pvt. Ltd. New Delhi, 2010.

WEBSITES REFERED

ü http://www.ambedkar.org

ü http://www.indiastudychannel.com

ü http://www.indianetzone.com

ü http://www.indiankanoon.org

ü http://www.legalserviceindia.com

ü http://www.mkgandhi.org

ü http://parliamentofindia.nic.in

ü http://www.preservearticles.com

[[1]] Making of the Constitution: The Preamble and Political Philosophy, URL: http://nos.org317courseEL-

4%20THE%20PREAMBLE%20AND%20POLITICAL%20PHILOSOPHY.pdf

[[2]] Fatehchand v. State of Maharashtra , AIR 1977 SC 1825 at 1827 : 1977 (2) SCR 828 : (1977) 2 SCC 670.

[[3]] Oxford Dictionary of Law, Oxford university Press, New York, p.416

^[4]Berubari Union and Exchange of Enclaves, Re , AIR 1960 SC 845, 856: (1960) 3 SCR 250

^[5]Sir AlladiKrishnaswami- Constituent Assembly Debates. Vol. 10, 417.

^[6]KeshvanandaBharti v. State of Kerala , AIR 1973 SC 1461

^[7]Retrived from http://parliamentofindia.nic.in/ls/debates/facts.htm on 10 March, 2014 at 8:56 pm

^[8]Retrieved from http://www.ambedkar.org/ambcd/63A2.Dr.%20Ambedkar's%20Entry%20into%20the%20CA.htm on 10 March 2014 at 9:19 pm

^[9] Inserted by the Constitution (42^nd amendment) Act, 1976

^[10]Ibid

^[11]Ibid

^[12]Subba Rao. C.J., in I.C. GolakNath v. State of Punjab, AIR 1967 SC 1643

^[13] Re Berubari Union, AIR 1960 SC 845

^[14] Retrieved from http://www.mkgandhi.org/momgandhi/chap64.htm on 25 feb 2012 at 12:32 pm

^[15]In Re: Beruberi Union (I), (1960) 3 SCR 250

^[16](1973) 4 SCC 225

^[17] Retrieved from http://www.legalserviceindia.com/article/l26-PREAMBLE-A-PART-OF-THE CONSTITUTION-OR-NOT.html on 15 March 2012 at 12:26pm

^[18](1973) 4 SCC 22

^[19] Golak Nath v. State of Punjab , AIR 1967 SC 1643

^[20] Shehlat and Grover,JJ.,in Keshavananda Bharti v. State of Kerela, AIR 1973 SC 1461

^[21] Inserted by the Constitution (42^nd amendment) Act, 1976

^[22]Ibid

[23] Ibid

^[24] P.K.. Majumdar & R.P Kataria, , Commentary on the Constitution of India, Volume 1,OrientPublishing Company, Allahabad, 2009, p.192.

^[25] Narender Kumar,, Constitutional Law of India, Allahabad Law Agency, Allahabd, 2008, p.26

^[26] AIR 1954 SC 158

^[27] SR. Myneni,, Political Science for Law Students, Allahabad Law Agency, 2006,p.100.

^[28] ibid

^[29] J.N. Pandey,, The Constitution of India, 47th Edition, Central Law Agency, Allahabad, 2010, p.31

^[30^] Essay on the preamble of Indian constitution – Rohini DasGupta

^[31] ibid

^[32] AIR 1979 SC 25

^[33] P.M. Bakshi,, The Constitution of India, Universal Law Publishing Co., Delhi, 2008,p.3.

^[34] The genesis of ‘Indian Secularism’: Constituent Assembly Debates.

^[35] AIR 1974 SC 1389

^[36] P.K.Majumdar, & R.P. Kataria, Commentary on the Constitution of India, Volume 1, Orient Publishing Company, Allahabad, 2009, p.196.

^[37] The Great Indian Democracy – Shantanu Sahay

^[38] AIR 2002 SC 2112

^[39] M.P. Jain, Indian constitution , Mahabir Prashad Jain, New Delhi, 2008, p.46

^[40] Shiva Rao, the Framing of the Indian Constitution, N.M. Tripathi Pvt. Ltd., Bombay, 1967, III, 510, cited in Kumar, Narender, Constitutional Law of India, Allahabad Law Agency, 2008,p 34

^[41] Inserted by the Constitution (42^nd Amendment) Act, 1976

^[42]Retrieved from http://www.indiastudychannel.com/resources/47070-constitution-India.aspx on 26 March 2014 at 10:12 am

^[43] Fourty-second Amendment Act to the Indian Constitution, 1976

^[44] Retrieved from http://www.indianetzone.com/40/preamble_indian_constitution.htm on 26 Feb 2014 at 10:45 am

^[45] AIR 1950 All 732

^[46] AIR 1960 SC 845, 1960 3 SCR 250

^[47] Retrieved from http://www.indiankanoon.org/doc/1120103/ on 12 feb 2014 at 10:11am

^[48] Kesavananda Bharati vs State Of Kerala, Writ Petition (civil) 135 of 1970

^[49] Retrieved from, http://www.preservearticles.com/2012011020424/essay-on-the-amendment-of-the-preamble-of-india.html on 26 feb. 2014 at 7:01 pm

^[50] Aparajita Baruah, Preamble of the Constitution of India :an insight and comparison with other constitution , Deep and Deep Publications, New Delhi, 2007, p.300

^[51] Aparajita Baruah, Preamble of the Constitution of India :an insight and comparison with other constitution , Deep and Deep Publications, New Delhi, 2007, p.300

^[52] Retreived from “Essay on the preamble of Indian constitution”, http://www.preservearticles.com, 22 March 2014 at 10:17pm

NECESSITY AND SCOPE OF ALTERNATIVE DISPUTE RESOLUTION IN INDIA

2017-05-31T23:21:00.002-07:00

1. NECESSITY OF ADR:

In a rapidly developing society human needs are bound to multiply resulting into conflict of interests. People become more conscious about their individual rights and litigation becomes an inevitable part of their life due to rising incidence of disputes among them. The problem is further compounded when there is lack of discipline in the litigation process an judicial mechanism finds it difficult to cope up with the enormous caseload. Particularly, in a modern technologically and economically well advanced society, litigation is a primary means of resolving disputes.

Justice delivery institutions in most of the developing countries in the world are currently confronted with serious crises, mainly on account of delay in the resolution of the disputes particularly the delay in disposal of the commercial and other civil matters. We must admit that this situation has eroded public trust and public confidence in the justice delivery institutions

As we all know that Justice delayed is justice denied and at the same time justice hurried will make the justice buried. So we will have to find out a via media between these two to render social justice to the poor and needy who wants to seek their grievance redressed through Law Court. So here the need for ADR arises, and the beginning of the modern ADR movement is from United States of America. As Chief Justice Warren Burger of the U.S. Supreme Court once observed on noticing the increase of cases from 2000 to about 5000 in the US Supreme Court between 1963 to 1982 made the following remarks: –

“We are moving towards a time when it will be impossible for the courts to cope up with the dockets. If something is not done, the result will be a production of line of justice that none of us would want to see.”

So The rationale behind the adoption of a system of ADR is undoubtedly the need to find a method of circumventing and eventually effacing the tremendous problems which beset the litigative system. These problems can be broadly classified into:

(1) delay;

(2) expense;

(3) rigidity of procedures; and

(4) a reduction in the participatory role of parties.

1. Delay

Delay and backlog go hand in hand. The typical life span of a civil litigation depicts a morose picture of the litigative system of India. The Parliamentary Standing Committee on Home Affairs found that as of 2001, there were 21 High Courts in the country and 35.4 lakh cases pending. The position in the subordinate courts was even more alarming, as there was a backlog of 2 crore cases for as long as 25 to 30 years. The result of this tremendous backlog is an inordinate delay in the disposal of matters, spanning a period of 15-20 years.

Delay in the judicial system of a country results inevitably in a loss of public confidence in the concept of justice. It has a corrosive effect on the canons of public interest, which enunciate the maxim: 'justice delayed is justice denied'. Consequently, it acts as a deterrent to those who have been legally wronged, as they stay away from the Courts, fearful of the time that would have to be spent on litigation.

2. Expense

Justice Brennan of the U.S. Supreme Court has stated: "Nothing rankles more in the human heart than a brooding sense of injustice...when only the rich enjoy the law as a luxury and the poor who need it the most cannot have it because its expenses put it beyond their reach."

The expenses that ordinarily have to be incurred by the litigant, such as court fees, lawyers fees etc., exclude the poor from the purview of judicial remedy, whereas it is they who are in the greatest need of it. The multiplicity of procedures and the inordinate delay adds to the burgeoning cost of litigation.

3. Rigidity of Procedures

The functioning of courts is governed by a prescribed set of procedures brought about either by statute or custom. Over a period of time, these procedures have attained a substantial amount of rigidity. While the rigidity of procedures does subserve the object of dispensing even handed justice, this objective is fulfilled at a pyrrhic cost.

In perpetuating such rigid procedures, we forego the possibility of amicable settlement, which can only be achieved through a moderate amount of flexibility. Further, apart from adding to the delay of the litigative system, rigid procedures are responsible for the apprehension of ordinary persons who shy away from courts, fearful of the sacrosanct procedures of which they know nothing.

4. Participatory Role of Parties

The adversarial system often results in the marginalization of litigants, whose participation in judicial proceedings is extinguished. Bereft of legal advice, litigants who appear before the court in person are often seen giving vent to their emotions, opinions, perceptions and interests, none of which are of any significance in a court of law.

Simple justice therefore demands a system of redressal of disputes, where the emotions, opinions, perceptions and interests of the litigant are taken into consideration, while moving toward an amicable settlement.

SCOPE OF ADR IN INDIA

CONCEPT OF ALTERNATIVE DISPUTE RESOLUTION IN OLDEN DAYS IN INDIA

Before formation of law Courts in India, people were settling the matters of dispute by themselves by mediation. The mediation was normally headed by a person of higher status and respect among the village people and such mediation was called in olden days “Panchayath”.

ALTERNATIVE DISPUTE RESOLUTION IN MORDERN INDIA

1. Labour law:-

The first avenue where the conciliation has been effectively introduced and recognized by law was in Labour law, namely Industrial Disputes Act, 1947. Conciliation has been statutorily recognized as an effective method of dispute resolution in relation to disputes between workers and the management. The provision in the I.D. Act makes it attractive for disputing parties to settle disputes by negotiation and failing that through conciliation by an officer of the Government, before resorting to litigation. Several provisions in the Act get the scene for conciliation to be more successful.

a) The conciliation is by an Officer of the Labour Department in the Government.

b) The parties may not go on strike or declare a lock out during the period of conciliation.

c) The conciliation officer shall make all effort to settle the dispute by conciliation (Section 12(2)).

d) The agreement reached in the process of conciliation shall be certified by the Conciliation Officer as fair settlement (Section 12(3)).

e) Such settlement shall bind all the other trade Union that are party to the dispute and are invited to participate in the conciliation but prefer to stay away from the conciliation process (Section 18(3)).

f) The settlement is a self-executing document and breach of the settlement condition by the Management is a ground for recovery of the due under simplified summary procedure (Sec.33 C).

All parties to an industrial dispute who have had the misfortune of going through litigation knew that it is a tedious process and one which could go well beyond the life time of some of the beneficiaries. It is this factor that has contributed greatly to the success of conciliation in industrial relations.

2. The Arbitration and Conciliation Act 1996

There was much delay in settlement of disputes between the parties in law Courts which prevented investment of money in India by other countries. Further there was no provision in the Indian Arbitration Act 1940 to resolve a dispute between an Indian and a non-Indian as the law-relating contract between the parties were different which caused difficulties to refer such matter for arbitration. In order to avoid such a difficulty, India has undertaken major reforms in its arbitration law in the recent year as part of economic reforms initially in 1991. Simultaneously many steps have been taken to bring judicial reforms in the country, the thrust being on the minimization of Courts intervention in the arbitration process by adoption of the United Nations Commission on International Trade Law (UNCITRAL). With this in mind, the Government has given birth to a new legislation called “The Arbitration and Conciliation Act 1996”.

3. Family Law:

The other area where Alternate Dispute Resolution recognized in India is in family law.

a. Section 5 of the Family Court Act provides provision for the Government to require the association of Social Welfare Organisation to hold the family Court to arrive at a settlement.

b. Section 6 of the Act provides for appointment of permanent counsellors to effect settlement in the family matters. Further

c. Section 9 of the Act imposes an obligation on the Court to make effort for settlement before taking evidence in the case. In fact the practice in family Court shows that most of the cases are filed on sudden impulse between the members of the family, spouse and they are being settled in the conciliation itself.

To this extent the alternate dispute resolution has got much recognition in the matter of settlement of family disputes. Similar provision has been made in Order XXXII A of C.P.C. which deals with family matters.

4. Code of Civil Procedure.

By amendment of the Code of Civil Procedure in the year 2002, Sec.89 has been included in the code, which gives importance to mediation, conciliation and arbitration. This section casts an obligation on the part of the Court to refer the matter for settlement either before the Lok Adalat or other methods enumerated in that section itself.

5. Legal Services Authority Act:

The other legislation, which has given more emphasis on the alternate dispute resolution, is the Legal Services Authority Act 1985. Though settlements were effected by conducting Lok Nyayalayas prior to this Act, the same has not been given any statutory recognition. Matters settled in the Nyayalayas earlier were made decree by the Court in which the case was filed on the basis of settlement arrived at between the parties. But under the new Act, a settlement arrived at in the Lok Adalats has been given the force of a decree which can be executed through Court as if it is a decree passed by a Competent Court.

Further provision has been made in the Act for settling pre-litigation cases through such adalats. Power has been given to the Lok Adalaths constituted under the Act, to decide the dispute referred to them, to effect settlement by mediation and if settlement is arrived at between parties to draw a decree on the basis of compromise and the same will be signed by the members of the Adalath which consist of a judicial Officer working or retired, a lawyer and a person of social welfare association preferably women and a copy of the same will be given to the parties free of costs. This has really reduced delay in getting copy of the decree by the parties. Lok Adalaths have acquired wide acceptance among the public as the results are quick, less expensive and no appeal will lie against the award passed in a Lok Adalath.

EVIL IMPACT OF INDUSTRIAL REVOLUTION ON SOCIAL SECURITY SYSTEM IN INDIA

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CHAPTER 1

INTRODUCTION

For the efficient functioning of a working unit an amicable environment, cooperation between the workers and the employers, reasonable remuneration and proper working condition are the prerequisites. From the laissez faire to the ‘welfare state’, the socio-economic conditions have faced drastic changes, not only in India but also across the world.

The industrial position that prevailed in the pre-independence era of India does not remain pristine. The industrial revolution in India brought with it certain inhumane as well as unjust aspects of the colonial era. To cope with these problems, and provide social security industrial legislations were enacted in India. To keep pace with the changing socio-economic conditions in India, the Legislature as well as the Courts had to check the unfavourable growth of the industrial legislations.

Industrial legislation finds its origin from the industrial jurisprudence, which is a development of the 20th century world. In India, industrial jurisprudence prevailed before the Independence, but it was in the rudimentary form. Industrial revolution was the emanating factor behind the growth of the industrial jurisprudence. Industrial revolution brought with it the most inhumane aspect of the human life. It saw the exploitation of a man by a man. The maximization of profit, even at the cost of the life of the labourers, was paramount goal of the employer. ‘Freedom of contract’ was the evident result of the laissez faire. The employer was free to fire the employee, at his arbitrariness.

Thus the employees were always at the loss.
To protect the interest of the employees, the legislature and courts, in India took a giant step to give birth to the industrial jurisprudence in India- former trough the enactments and the latter through the judgments. The scope of industrial jurisprudence not only covers the protection of interests of the employees but it also aims at securing a cordial relationship between the employers and employees in a working unit.

1.1 Concept Of Social Security

The International Labour Organisation (ILO) defines Social Security as "the security that society furnishes through appropriate organization against certain risks to which its members are perennially exposed. These risks are essentially contingencies against which an individual of small means cannot effectively provide by his own ability or foresight alone or even in private combination with his fellows. The mechanics of social security therefore consists in counteracting the blind injustice of nature and economic activities by rational planned justice with a touch of benevolence to temper it.”

Modernization and urbanization have resulted in radical socio-economic changes and give rise to new conflicts and tensions consequent upon the erosion of age old family and fraternal security. The transition from agricultural economy to an industrial economy brought in special accompanied problems that called for social security.

CHAPTER 2

EVIL IMPACT OF INDUSTRIAL REVOLUTION ON SOCIAL SECURITY SYSTEM IN INDIA

As per the economic policy of the British government, they never wanted to make India an industrial base, rather they wanted to make India a supplier of raw materials for their industries. Instead of promoting industries in India, they continued to de-industrialise and ruralise the Indian economy.
Further with the advent of industrial revolution in England, the British government revved up its efforts to further exploit the Indian economy. As a result, in 1947, when the British left, India represented a ruined economy, a sick society and the present danger of the evil effects of neo-colonialism. However, the evil impact of industrial revolution can be classified into Social Evils and Economic Evils, which are discussed as below:

2.1. Economic Evils: The artisans lost the psychological satisfaction that they derived in producing goods themselves. In the industries, they had to produce only a part of the finished goods. The labourers were underpaid. They could just earn from hand to mouth. The wages were sufficient to provide them with the daily bread, but at the cost of other necessities of their life. The term of employment was not secure. The employers were free to exercise their arbitrariness in sacking the labourers. The factory workers had to suffer from the periodic unemployment and under-employment.

2.2. Social Evils: The overcrowded cities, due to the large-scale immigration of the village population in the cities led to the industrial slums and acute housing problems. It had its adverse impact on the health of the workers and also led to the sanitation problems in the cities. The working condition in the factories was hazardous. Moreover, the long hours of duty, with no rest and no facility of recreation marred the welfare of the workers. The machines were taken care of by the factory owners, with little regard for the safety of the workers. Workers were exposed to serious accidents caused by the improperly managed machines in the factory. These accidents were not taken seriously by the factory owner. The victims of such accidents did not have any right to compensation.

Due to the inadequate wages, the wives and children of the workers were exposed to the exploitation by the factory owners. They were employed at low wages without regard to their physical conditions.

CHAPTER 3

LABOUR PROBLEMS IN INDIA

The factory owners paid their sole attention towards the maintenance of the machines irrespective of the health and working conditions of the workers. The employers neglected the conditions of the workers as the manual labour was abundantly available to them. The workers were underpaid. They could not raise their voice. They were illiterate and poor, so were ignorant of their rights. Taking the advantage of this situation, the employers dictated their own terms.
The government also did not interfere in the matter as it was deemed to be a freedom of contract. The situation worsened further. The government could not just see it as a neutral player and it had to interfere. Moreover, some of the philanthropic agencies like the Servants of India Society and Social Service League raised voice against these problems. Later some industrial social workers also raised voice against these problems. Initially, they lacked in the resources and bargaining power but they were successful in mobilising the public voice against these problems.

Later, the factory owners also realised the seriousness of the problem and also that a contended worker will add to the productivity of the factory.

Later the Government also, could not confine itself to a neutral spectator. The Government also realised that it was in the interest of the national economy as well as the labourers that constitute a bulk of population in India. Thus the drive for the welfare of the labourers and for the protection of the Indian economy compelled the Government to intervene in the situation.

CHAPTER 4

EVOLUTION OF INDUSTRIAL JURISPRUDENCE TOWORDS SOCIAL SECURITY AND CHANGE IN LABOUR RELATION POLICY IN INDIA

The evolution of Industrial Jurisprudence in India can be traced back to the period of post Independence. Before the Independence, the industrial jurisprudence existed in a rudimentary form. The paramount concern of the Pre-independence industrial jurisprudence was the amelioration of the working condition of the workers at the factories. There was hardly any deal with the social justice to the working class. It was only after the commencement of our Constitution, that the adequate provisions for the social justice to the workers were inserted.
Before the Independence, India was not only a great agricultural country, but also a manufacturing country. But the British Government, as a matter of their policies always tended to discourage the Indian industries. This led to a widespread nationalism in India, which laid emphasis on the boycott of the foreign goods. Further a Non-Cooperation Movement saw its birth that is also called Swadeshi movement, which emphasized on the use of indigenous goods and boycott of the foreign goods.

The aspect of industrialization in India was based on the program of planning, which was accepted after thirties.

It is important to take into consideration that the plantation industry of Assam was the first to attract the industrial legislation. The situation there was that the employers exercised hard practices against the employees. The employees were not allowed to leave the tea gardens. A number of Acts were passed from 1863 onward, but they only protected the interests of the employers. Some other Acts were also passed to regulate the condition. But the Workmen’s Compensation Act, 1923 was the landmark Act.

4.1. INDIAN CONSTITUTION AND SOCIAL JUSTICE
Industrial Jurisprudence was not in a much developed form before the commencement of the Constitution of India. Before the Independence, the paramount concern of the Government was to ameliorate the condition of the factory workers. It was after the commencement of the Constitution that the paramount concern of the Government shifted towards the social justice for the labourers, who constituted the bulk of the population.
Bhagwati J., in a landmark case opined that;

“concept of justice does not emanate from the fanciful notions of any particular adjudication but must be founded on a more solid foundation.

And Justice Gajendra gadkar also opined that;

“the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the idea of welfare state”.

The Indian Constitution also enshrines the idea of social justice as one of the objectives of the State. Some of those provisions are as follows:

1. The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political.

2. The State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations

3. The State shall, in particular, direct its policy towards securing

a) that the citizen, men and women equally, have the right to an adequate means of livelihood;

b) that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good;

c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

d) that there is equal pay for equal work for both men and women;

e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment

4.2 SOME IMPORTANT LABOUR ENACTMENTS IN INDIA

The following few legislative measures have been adopted by the Government of India to promote social security schemes for industrial workers.

a) The Indian Factories Act of 1948 provides for the health, safety and welfare of the workers.

b) The payment of wages Act, 1936, regulates the k\timely payment of wages without any unauthorized deductions by the employers.
The Minimum Wages Act, 1948, ensures the fixation and revision of minimum rates of wages in respect of certain scheduled industries involving hard labour.

c) The Industrial Disputes Act, 1947, provides for the investigation, and settlement of industrial disputes by mediation, conciliation, adjudication and arbitration. There is scope for payment of compensation in cases of lay-off and retrenchment.

d) The Industrial Employment (Standing Orders) Act, 1946, requires employers in Industrial establishments to define precisely the conditions of employment under them and make them known to their workmen. These rules, once certified, are binging on the parties for a minimum period of six months.

e) The Indian Trade Unions Act, 1926, recognizes the right of workers to organise into trade unions, when registered, have certain rights and obligations and function as autonomous bodies.

f) Workmen’s Compensation Act, 1923: The Workmen’s Compensation Act was passed in March 1923, and was put into effect on 1st July 1924. This Act followed the British model, but was adapted to suit Indian conditions. Was-time injuries were also covered by the Act. The 1962 Amendment raised the wage limit covered under the Act to Rs.500 per month. It also amended the clauses bearing on industrial diseases, and revised the rates of compensation. With effect from 1st October 1975, the wage limit coverage under this Act has been raised from Rs.500 to Rs.1000 per month.

g) Employees’ State Insurance Act, 1948: Two conventions on health of workers in industry, commerce and agriculture were adopted in 1927 by International Labor Conference. The question about health insurance was also discussed by the Royal Commission on Labor, and a tentative scheme of health insurance was proposed in its comprehensive report in 1931. Its recommendations on the adoption of a health insurance scheme were not accepted by the Government of India because of financial difficulties. All these built up a lot of pressure on the government.

The one-man committee of Professor B.P. Adarkar, set up in March 1943, submitted its report on a scheme of health insurance for industrial workers in August 1944. It recommended a compulsory and contributory health insurance scheme for workers in perennial factories in three groups of industries, namely textiles, engineering and minerals and metals. Bearing all these modifications and recommendations in mind, the Government of India passed the Employee’s State Insurance Act in April 1943, which provides cash benefit in contingencies of sickness, maternity and employment injury, but did not provide security in such contingencies as unemployment and old age. The dependents of workers who died as a result of any employment injury were paid compensation in the form of a pension.

The E.S.I. Scheme stated with coverage of about 1.20 lakh industrial workers in Kanpur and Delhi on 24th February 1952. It has continued to progress over all these years. By the end of March 1976, there were 388 centers covering nearly 22 million beneficiaries under this scheme. The total number of employees and insured persons under the scheme at the end of 1995-96 was respectively 66.13 and 73.03 lakh insured persons.

The ESI Scheme offer both direct and indirect medical care. The direct method is called the “Service System” by which the ESI Corporation provides medical care, either through its own Employees’ State Insurance Hospital or through reservation of beds in State Government hospitals. The indirect method is known as the “Panel System”, under which medical care is provided through private doctors selected by the State Government with the approval of the ESI Corporation.

The benefits provided by the Act are:

· Sickness Benefits;

· Maternity Benefits;

· Disablement Benefit

· Dependents’ Benefit;

· Funeral Benefit; and

· Medical Benefit.

All workers, earning less than Rs.3000 per month and employed in power-run factories employing 20 or more persons are covered by this scheme. However, it does not cover workers employed by seasonal factories. An insured person under ESI Scheme is not eligible for similar benefits under the Workmen’s Compensation Act and State Acts relating to maternity benefits.

CHAPTER 5

IMPACT OF ILO ON INDIAN LABOUR LAWS

(A Step Towards Social Security To Labours)

The International Labor Organization (ILO) was set up, with an aim to develop the conditions of labours and to provide the social security not only in India but around the world, in the year 1919. India was the instituting member of ILO which now expanded its primary membership to 145 countries. Indian Labor Organization through its resolutions and recommendations supports countries to lure their own set of labor legislations for the well conduct of the labor class, and the preservation of their rights. The primary objective of action in the ILO is the creation of the International Labor Standards in the form of Resolutions and Recommendations. Countrywide policies, procedure and help in developing actions.

The basic principles of labour policy of the I.L.O.:-

1. Labour is not a commodity.

2. Freedom of expression and of association is essential to continued progress.

3. Poverty anywhere constitutes a danger to prosperity everywhere.

etc.

Labor Law controls matters, such as, remuneration, labor employment, and conditions of employment, trade unions, industrial and labor management relations. They also include social legislations regulating such characteristics as reimbursement for accident triggered to a worker at work place, maternity benefits fixation of minimum wages, and distribution of the company’s profit of the organization’s workers, etc. Most of these acts regulate rights and the responsibilities of employee.

The Indian Labour Organization tools have provided procedures and useful framework for the development of legislative and administrative procedures for the protection and progression in the interest of labor. To that point the impact of ILO Resolutions as a regular for reference for both labor legislation and practices in India, rather than legally binding norm, has been substantial. Ratification of a Resolution enforces legally binding responsibilities on the nation concerned and, consequently, India has been very careful in ratifying Resolutions. It has always been in the exercise in India that we ratify a Resolution when we are entirely satisfied that these laws and practices are in conformity with the appropriate ILO Resolution. It is now measured that a better course of action is to proceed with India have so far ratified 39 Conventions of the ILO, which is much better than the position obtaining in many other countries. Even where for special reasons, India may not be in a position to ratify a Convention, India has generally voted in favor of the Conventions reserving its position as far as its future ratification is concerned

Major impact of ILO on Labor legislations in India With the evolution and expansion of small plants, factories and industries in the Indian subcontinent starting in the mid of the nineteenth century, new possibilities for employment were generated, resulting in a ongoing migration of the labor from poor rural areas to factories and mills located basically in urban areas.

During time, in the lack of any control on organization’s labor by the state, the employers were very less concerned for the need of their workers; wages were very low, very long working hours, and unsatisfactory the employees’ employment conditions. The situation led to the depiction of a large number of labor legislations beginning since the year of 1881.

a) These labor legislations includes,

b) The Factories Act 1881,

c) Workmen’s Compensation Act -1923,

d) Mines Act 1923,

e) Trade Unions Act-1926,

f) Trade Disputes Act -1929,

g) Payment of Wages Act -1936,

h) Employment of children act- 1938 and

i) Maternity Benefit Act in 1939.

The ILO guidelines provided basic principles on which most of labor legislations were drawn. By observation on various amendments and enactments in labor laws it can be easily seen that the ILO have a countless impact on the Indian Labor Laws. A large number of laws were passed to incorporate the guidelines of the resolutions of the ILO.

All these revised and ratified legislations create provisions for the common welfare and protection of importance of the Indian labors. The constructive effect of ILO is seen in form of appreciation of many new kinds of rights that were previously not available for the Indian labor class, but were made available after creation of ILO.

CHAPTER 6

RECENT TRENDS IN LABOUR LAW

The experience in India during the last 50 years has been that the Supreme Court of India, various High Courts, Industrial Tribunals and Labour Court have enriched the country with a variety of precedents of labour demands by their sweat and toil and missionary research from almost a barren and fallow field of labour jurisprudence. They have handed down to the world community jurisprudence, as living as dynamic, as valid as sound, which has redeemed the lost faith of industrial masses in law and justice. Their contribution to the development of labour law and redemption of social values of law and justice, is unparallel in the world history of jurisprudence, far exceeding the contribution made by Equity in England. Adjudication of industrial demands being a complicated task, the Tribunals have to go into the merits of each issue which necessarily means examination, analysis and appreciation of the labour economics, the sociological approach and the relevant technical aspects of every issue. The demands concerning labour problems have often been subjected to expert studies and researches by high powered bodies of International Labour Organization, Indian Labour Conference, Labour Investigation Committees, Wage Boards, Pay Commissions and various Government bodies, etc.
In fact, these Reports and Recommendations have often been adopted by the Supreme Court, High Courts and Industrial Tribunals as guidelines. According to Section 10 of the Industrial Disputes Act 1947, the appropriate government is empowered to refer a dispute to the Tribunal. This power of the appropriate government is independent of the fact whether conciliation proceedings have been held or not. However, in practice, a dispute is referred to the Tribunal/ Labour Court for adjudication by the appropriate government after considering the failure of conciliation report received from the conciliation officer.

6.1. CONSOLIDATION, SIMPLIFICATION AND RATIONALIZATION OF LABOUR LAWS

Codification of labour laws is a desirable long term goal. However, certain practical difficulties may arise in operationalising this. In view of this the Working Group agreed with the suggestion of the Second National Commission on Labour and NCEUS that labour laws should be consolidated in a few cognate groups to reduce multiplicity of laws for better enforcement and more effective compliance. This should also help in moving closer to a uniform labour policy on common issues. The Working Group therefore recommends that labour laws should be clubbed under the following four major cognate groups: -

1. Laws governing Industrial Relations

· The Industrial Disputes Act, 1947

· The Industrial Employment (Standing Orders) Act, 1946.

· The Trade Unions Act, 1926

An attempt may be made to consolidate the above laws into one law i.e. Industrial Relations Act.

2. Laws governing Wages

· The Equal Remuneration Act, 1976

· The Minimum Wages Act, 1948

· The Payment of Bonus Act, 1965

· The Payment of Wages Act, 1936

The above four Acts may be consolidated into one Act i.e. Payment of Wages Act.

3. Laws governing Social Security

· The Employees’ State Insurance Act, 1948

· The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952

· The Payment of Gratuity Act, 1972

The definition of establishments, eligibility criteria, etc. in the above Acts may be harmonized for purposes of consolidation.

4. Laws governing Working Conditions & Welfare

· The Factories Act, 1948

· The Maternity Benefit Act, 1961

· The Workmen’s Compensation Act, 1936

· The Contract Labour (Regulation and Abolition) Act, 1970

· The Inter-State Migrant Workers(RE&CS) Act, 1979

The above individual Acts will need harmonization of definitions and coverage before they can be consolidated. Simplification and rationalization of labour laws will require examination of labour laws individually. In the process provisions which have outlived their existence may be deleted. If necessary, certain laws may be considered for being repealed. A consensus will have to emerge from the stakeholders regarding this.

6.2. Indian Prime Minister Narendra Modi Launched Key Labour Reforms, Promised Better Work Culture

Prime Minister Narendra Modi unveiled some key labour reforms that rely on trust and promote the ease of doing business on Thursday 16^th October, 2014, and said the measures will go a long way in changing India's work culture, promoting social security and skilling the youth.

The prime minister also unveiled the Shram Suvidha portal, a Labour Inspection Scheme, and also the portability of social security through a Universal Account Number for Employees Provident Fund. He also launched Apprentice Protsahan Yojana of the labour ministry.

These efforts are a great example," said Modi amid applause. "This is Minimum Government, Maximum Governance."

"The Shram Suvidha portal simplifies compliance of 16 labour laws with on online form," he said.

The prime minister added: "E-governance is easy governance. It builds trust for transparency."

On the issue of social security of labour force, the prime minister expressed concern that as much as Rs.27,000 crore was lying unclaimed with the Employees Provident Fund Organisation.

"This money belongs to poor workers of India," he said, adding the portability provided under the Employees Provident Fund through one universal account number will put an end to such large sums of money being locked up and not reaching the intended beneficiary.

The prime minister said the "Shramev Jayate" initiatives were essential elements of the "Make in India" vision, paving the way for skill development of youth in a big way, and creating opportunities for India to meet the global requirement of skilled labour.

He said skilled labour has not been given due dignity in the society and was generally regarded as lower to other forms of work.

"A compassionate approach would result in the Shram Yogi (labourer) becoming a Rashtra Yogi and hence, a Rashtra Nirmaata (nation-builder). There is need to change outlook,"

Referring to apprenticeship encouragement scheme of the labour ministry, he said it will help meet needs of skilled workforce.

Labour ministry officials said the Apprentices Act, 1961, had been enacted to regulate apprenticeship training in the industry.

They said a major initiative has been taken to revamp the existing apprenticeship scheme with the aim of increasing apprenticeship seats to more than 20 lakh in the next few years.

The officials said that information about schemes such as National Old Age Pension Scheme and Aam Aadmi Bima Yojana will be captured in the card issued under the revamped Rashtriya Swasthya Bima Yojna for labour in the unorganized sector.

CHAPTER 7

CONCLUSION

Mahatma Gandhi had once said,

'A nation may do without its millionaires and without its capitalists, but a nation can never do without its labour'.

Industrialisation creates a number of social and economic problems like employment of women and children, minimum wages, trade unions, insanitary living quarters and deplorable working conditions in the factories, etc. Labour laws are, therefore, enacted to facilitate their solutions, as ordinary civil laws are inadequate to meet them. The State has adopted a progressive policy, and is keeping pace with the labour policy of the Government of India and the standard laid down by the International Labour Organisation. This has produced a plethora of legislation and their administration. These laws also deal with the regulation of industrial relations between the management and the workers.
But It’s virtually without debate that the Indian labour law regime requires a comprehensive overhaul. Central and state legislations need to be examined in totality to understand how permissions and compliances required can be made as few and as simple as possible, without adversely affecting rights of workers.

1. There has been consistent decline in real minimum wages.

2. Growing casualisation and contractrisation of labour and decline in proportion of permanent work force have become order of the day.

3. There is an urgent need for simplification of labour legislation. This need is two-fold. Firstly, the laws must be drafted in such a way that they can be understood by an ordinary study thereof done by an average man for whom they are meant. Secondly, little is done to remove ambiguous interpretations, phrases and provisions and they are left to be adjudged by the tribunals. As far as possible such ambiguities must be removed and proper legislative clarification incorporated at appropriate places.

4. Collective bargaining has been accepted as the best method of settlement of industrial disputes but the existing laws do not provide any framework for regulating it. A good number of industrial differences can be alienated by legislative engineering in this field also.

5. The present plethora of legislation serves s minority of industrial labour. The rural labour, the urban labour in the unorganised sector, the tribal forest and scheduled caste labour have by and large not received much attention. Similarly, the small scale industries, the petty shops, establishments, self-employed sectors also deserve a distinct treatment. Legislative engineering should, therefore, be employed for extending benefits of social justice to these neglected segment of labour and also for protecting the small sectors from the onslaughts of aggressive trade unionism.

While it is desirable to move to a system where workers can be employed on negotiated terms and where the distinction between permanent and contract employees are entirely dissolved, there are three levels of protection that would need to be in place before that happens:

1. A national legislation on minimum wages and standards, so that under no circumstance can a worker (in a factory, service company, household or tea-shop) be employed at standards inferior to that.

2. Sanctity for collective bargaining agreements, so that the overwhelmingly superior bargaining position of the employer over individual employees does not lead to exploitative terms of employment; and

3. Social security measures such as unemployment insurance and retraining facilities, so that loss of employment does not mean that a worker has to starve.

Once a simplified regime incorporating these safeguards comes into effect, the enforcement of these provisions will also be considerably easier and less expensive.

A comprehensive reading of this short project report reveals that there has been considerable change in the social outlook towards labour legislation in India, and Technological evolutions with active role and support of ILO have also contributed in the simplification of labour legislations to make them more labour-friendly and thereby promoting social justice.

BIBLIOGRAPHY

A. Books Referred:

a) An Introduction to Industrial and Labor and Industrial Law, S.K. Puri, 2015, 11^th Edition (Allahabad Law Agency)

b) Social Security and Labour Law, S.C. Srivastava, 2014(EBC)

d) The Constitutional law of India, J.N. Pandey, 2008, 47th Edition

e) Indian Constitutional law, Prof. M.P. Jain, 2008, 5th Edition

f) D.D. BASU, Constitutional Law of India, (8th Edn. Vol. 3),

B. Websites Referred:

a) mrunal.org/2012/07/economy-social-security-epfo.html

b) https://www.ssa.gov/policy/docs/ssb/v16n5/v16n5p11.pdf

c) workspace.unpan.org/sites/internet/documents/unpan92408.pdf

d) www.legalservicesindia.com/article/article/social-security-826-1.html

e) ssrn.in

f) en.wikipedia.org/labourlaw_in_india

g) academia.edu.in

CONTEMPT OF COURT IN INDIA

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INTRODUCTION

Rule of Law is the basic principle of governance of any civilized and democratic society. The principle asserts supremacy of law bringing under its purview everyone, individuals and institutions at par without any subjective discretion. There can be no Rule of Law unless the bulwark of that grand concept „the Court of Justice‟ is kept alive at institutions breathing freedom, openness and justice. No society can exist without laws and laws have no meaning, if they can not be enforced. It is through the Courts that the rule of law reveals its meaningful content.

The judiciary is the guardian of the Rule of Law. Hence judiciary is not the third pillar but the central pillar of the democratic state. An independent or impartial Judiciary is the sine qua non of a healthy society. It is the last resort for the common people of a country, as they repose their ultimate faith in it to get justice. Therefore, it is essential for the Judiciary to be protected from all sorts of evil likely to affect the administration of justice. For better protection and preservation of prestige and dignity of the courts, the law on contempt of court has evolved. So, broadly speaking, this law helps the courts in discharging justice keeping its stand supreme in the eye of society. Actually this law aims at ensuring the administration of justice by courts in the society.

The law of contempt is based on the sound public confidence in the administration of justice. The purpose of contempt jurisdiction is to uphold the majesty and dignity of law courts and their image in the minds of the public at large. The essence of contempt is action or inaction amounting to an interference with or obstruction to or having a tendency to interfere with or to obstruct the due Administration of Justice. Lowering the dignity of the court or shaking confidence of the public in it is undoubtedly reprehensible.

1. Contempt of Court

Contempt of court is the offense of being disobedient to or disrespectful towards a court of law and its officers in the form of behavior that opposes or defies authority, justice, and dignity of the court. It manifests itself in willful disregard of or disrespect for the authority of a court of law, which is often behavior that is illegal because it does not obey or respect the rules of a law court.

Sec. 2 (a) of the contempt of court act says, contempt of court mean civil contempt or criminal contempt. The Act does not define the term Contempt of Court but simply says that there are two kinds of contempt of co

urt, first is civil contempt and the second one is criminal contempt of court. In Queen v. Gray, it was held that the law relating to contempt of court is well settled as act done or writing published which is calculated to bring a court or a judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the Court, is a contempt of court.

2. CIVIL CONTEMPT OF COURT

Sec. 2 (b) defines civil contempt as willful & deliberates disobedience of the order, decree etc, on breach of undertaking given to the Court.

From the above definition it can be gathered that the following are 2 ingredients of civil contempt which are required to be provide:-

1. Disobedience of the order, decree etc. of the court or breach of any undertaking of the court.

2. The disobedience or breach must be willful deliberate or intentional.

I. Disobedience of the order

There must be disobedience of the order decree etc. of the court or breach of any undertaking of the court. Order of the court includes all kinds of orders(Final order, ex-part order, Interim order, Consent order).

In case of Dr. H. Phunendra Singh vs. K.K. Sethi the S.C. held that in absence of stay order in appeal or execution of the higher Court the order appealed against should be complied with subject to an order passed at later stage otherwise it is open for the contempt court to provide further on merits of the contempt case. Mere pendency of the appeal or revision without there being any stay order pass by the High Court will not entitle the contemnor to avoid the compliance of the order.

However, in case of interim order/stay order a diff. view has been taken by the Supreme Court in case of J & K vs. Mohd. Yakub Khan. The Court has held that where stay vacation application has been promptly filed by the applicant against when the stay order has been passed & the same is pending for disposal, the contempt court should not proceeds in the contempt case unless & untill the stay vacation application is decided.

So far as the breach of undertaking as contempt of court is concerned the basis behind this is that the contemnor obtains a beneficial order for himself from the court by giving an undertaking & if he fails to honour the undertaking at a later stage, he plays serious fraud on the court & there by interferes with the administration of justice.

II. Disobedience must be intentional

The disobedience or breach of the order of the court is not sufficient to constitute civil contempt. The disobedience or breach must be willful deliberate or intentional. The power of contempt cannot be used unless the court is satisfied beyond doubt that the contemnor has willfully intentionally deliberately violated the order of the Court.

No court including contempt of court in entitled to take trivialities & technicalities into account, while finding fault with the conduct of the person against whom contempt proceeding in taken.

If the order has been substantially complied with and a reasonable explanation has been given for the delay in compliance of the order the contempt will not lie because the violation is not willful & deliberate.

3. CRIMINAL CONTEMPT OF COURT

Criminal contempt has been defined by Sec. 2 (c) it provides that 'Criminal contempt' means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:

(i) Scandalizes or lowers the authority of any court.

(ii) Prejudices or interfere or tends to prejudice or interfere with the due course of any judicial proceedings.

(iii) Interferes or tends to interfere with administration or justice in any other manner.

From the above definitions it can be gathered that following are the four essential ingredient of Criminal Contempt-

(1) Publication or doing of any act

The word publication has been given a very wide meaning so far as the court of contempt in concern. It includes words (spoken or written), sign and visible representation. It also includes the publication of any mentioned in the newspaper and magazine, broadcasting and the exhibition of any thing in cinemas. If these materials contain anything which scandalizes on lowers or tends to scandalize or lowers the authority of any court or prejudices or interferes with the due course of any judicial proceeding on tends to interferes with the administration of justice it will amount to criminal contempt of the court.

(2) Scandalizing or lowering the authority of the court

Scandalising might manifest itself in various ways. But in substance it is an attack on an individual judge in particular or the court as a whole with or without reference to a particular case by casting unwarranted and defamatory persons upon the character or ability of the judges. Such conduct is punishable as a criminal contempt for the reason that it tends to create distrust in the mind of the common people and there by shatter the confidence of the people in the judiciary.

In case of Arundhati Roy Supreme Court made it clear that criticism which undermines the dignity of the court cannot be said to be fair criticism and cannot be permitted under the garb freedom of speech and expression as guaranteed by art. 19(1) (a) of the Constitution of India. Thus prosecution of person for scandalizing the court is not prohibited by constitutional right or freedom of speech and expression under Art. 19(1)(a).

In case of Dr. D.C. Saxena vs. C.J.I Supreme court made it clear that writing/drafting in pleadings or petitions by which defamatory allegation has been labeled against the judge in particulars or a court as a whole would amount to criminal contempt.

(3) Prejudice on interference with the due course of any judicial proceeding (Media Trial)

Publication which prejudices or interferes with due course of any judicial proceeding is also taken as criminal contempt of court. Media trial (a trial by newspaper) is not consider proper because it affect fairness of trial and is likely to cause interference with the administration of justice. Even in England & U.S. Media trial is considered to be wrong and it taken as contempt of court Act. The knowledge of pendency of the case and reasonable ground to believe that the case is pending is sufficient to make out criminal contempt and intention and motive of the publication behind the publication is not relevant for the purpose of the criminal contempt. If it lowers the authority of the court a case of criminal contempt is made out.

The pendency in civil cases starts with the filing of the plaint and in criminal cases with the filing of charge sheet or issuance of summons or warrant. Pendency continued till the case is decided. In case of appeal or revision is filed, pendency continued till the appeal or revision is decided. If the appeal or revision is not filed, the pendency is continued till the period of limitation for filing the same has not replied.

(4) Interference or obstruction with administration of justice in any other manner

The publication or doing of any act which interferes or obstructs or tends to interfere or obstruct in the administration of Justice in any other manner, is taken as a criminal court of contempt. This clause is a residuary clause as it cover those cases of criminal contempt which are not extremely covered by sub. Clauses (i) & (ii) of Sec. 2(c) of the Act. The term administration of justice is much wider than the terms court of judicial proceedings. Every person in India is entitle to approach the court in order to secure justice and for the redressal of grievances and the court has to decide the dispute between the parties as per the law of equity. Any conduct which tends to prevent or actually prevent a party to approach the courts amounts to criminal court of contempt.

An advocate is an officer of the court and therefore undue interference with the advocate in the discharge of his professional functions amounts to criminal contempt of court. Casting as person on counsels or approaching him for not defending a particular person amount to criminal contempt of court.

The difference between civil and criminal contempt

Following are the three difference b/w civil and criminal contempt:-

1. Civil contempt includes willful and deliberate disobedience of the order or undertaking given to the court, where as criminal contempt involves & the defamation and insult of the court directly. There is neither any order nor willful violation there of in criminal contempt.

2. Civil Contempt is a serious matter as the order obtain by one party against the other is disobeyed but criminal contempt is more serious as it involves scandalizing or insulting the court directly and thereby shaking the confidence not only of the litigating parties but the general public as a whole.

3. In Civil contempt private parties have interest because order obtain by one party against other is not complied with and one party is interested in getting the order complied with. Whereas in criminal contempt private Parties have little or no interest for the reason that criminal contempt is directed against the dignity of the court and it is a crime against public at large.

Period of Limitation

Sec. 20 Provides that no court shall initiate contempt proceeding either on its own motion or otherwise after the expiring of one year from the date on which contempt is alleged to have been committed. The period of limitation is applicable both in civil as well as in criminal contempt.

In criminal contempt, contempt alleged to have been committed the moment scandalisation of court or interference with administration of justice takes place. Consequently the limitation of period immediately running but in case of civil contempt the period of limitation does not start from the date of the order, it starts running after the expiry of period mention in the order after service or certified copy of the order upon the other side. If no time limit in mention in the order, the order should be complied with within reasonable period. The term reasonable period has been interpreted to be a period of 3 month from the date of service or certified copies.

DEFENCES IN CIVIL CONTEMPT:

Following defenses can be taken by an alleged contemnor in civil contempt:-

1. No knowledge of order: The general principle is that a person cannot be held a guilty of contempt in respect an order of which he claims to be unaware. It can be successfully placed as a defense that certified copy of order was not formally served on the alleged contemnor.

2. Disobedience or breach was not willful: It can be pleaded that although disobedience or breach of order has taken place but it was neither willful nor intentional and it was due to accidental, administration or other reasons beyond the control of the party concern.

3. Order Disobeyed is vague & Ambiguous: If the order whose contempt is alleged to have been committed is vague or ambiguous it would be a defense that the order cannot be complied with as it is not specific.

4. Order involves more than one reasonable interpretation: If the order whose contempt is alleged to have been committed involves more than one reasonable and rational interpretation and respondent adopts one of them and acts in accordance with one such interpretation, he cannot be held liable for contempt of court.

5. The compliance of the order is impossible- In proceedings for civil contempt it would be a valid defense that the compliance of the order is impossible. However the cases of impossibility must be distinguished from the cases of mere difficulty. In case of Amar Singh vs. K.P. Gita Krishnan the court granted certain pensionary benefits to a large number of retired employees with effect from a particular back date. The plea of impossibility was taken on the ground that the implementation of the order would result in heavy financial burden on the exchequer. The plea of impossibility was rejected by the court with the object that although it is difficult to comply with the order but it is not impossible to comply with & therefore it should be complied with.

6. The order has been passed without jurisdiction: If the order whose contempt is alleged has been committed by a court which had no jurisdiction to pass it. Disobedience or violation of that order would not amount to contempt of court for the reason that the order passed without jurisdiction is a void order & a void order binds nobody.

DEFENSES Available in Criminal Contempt

Section 3 to 7 of the contempt of court act; deal with the defenses available in criminal contempt. These defenses can be categories in the following categories.

1. Innocent publication and distribution of matter-

Sec. 3 deals with this defense. If criminal contempt proceeding is initiated against a person on the ground that he is responsible for publication or for distribution of publications which prejudices or interferes with the pending proceedings. The contemnor may take the following pleas:

a. Under sec. 3(1) he may plead that at the time of publication he had no reasonable ground for believing that the proceeding was pending.

b. He may plead under sec. 3(2) that at the time of publication, no such proceeding was pending.

c. He may plead us/ 3(3) that at the time of distribution or publication he had no reasonable ground for believing that the matter (published or distributed by him) contained or was likely to contain any material which interfere on obstructed the pending proceeding or administration of justice.

2. FAIR AND ACCURATE REPORTS OF JUDICIAL PRECEDENCE

Sec. 4 of the Act provides that the person shall not be guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding at any stage.

Sec. 7 of the Act provides exception to the general principle that justice should be administered in public. Sub. sec. 1 and 2 of sec. 7 provide that a person shall not be guilty of contempt of court for publishing the text or for publishing fair and accurate summary of the whole or any part of the order made by the court in chamber. Unless the court has expressly prohibited the publication of the proceedings on the following grounds: (a) public policy (b) public order (c) security of the state (d) information relating to a recruit process, discovery or invention or in service of the power vested in it.

3. FAIR CRITICISM OF THE JUDICIAL ACTIVISM

Sec. 5 provides that the person shall not be guilty of criminal contempt for publishing any fair comment on the merits of any case which has been finally decided. The statement should come from the mouth of a knowledge person in the field of law and not from a litigating party which has lost the case. In short fair criticism means that criticism which while criticizing the act of the judge does not include any alterior motive to him.

6. BONAFIDE COMPLAINT

Sec. 6 provides that a person shall not be guilty of contempt of court in respect of any statement made by him by way of compliant in good faith concerning the presiding officer of any subordinate court to the High Court or to the court to which he is subordinate.

7. NO SUBSTANTIAL INTERFERENCE WITH DUE COURSE OF JUSTICE

By contempt of court Amendment Act, 2006, a new section 13 has been substituted in place of existing section 13. This new Sec. 13 provides that notwithstanding contain anything in law for the time being in force, no court shall impose a sentence for contempt of court unless it is satisfied that the contempt is of such nature that it substantially interferes or tends to interfere with the due course of justice. There should be real and actual interference with the due course of justice.

8. Truth

The amended section 13 (2) provides that the court may permit justification by truth as a valid defense in any proceeding for criminal contempt if it is satisfied that it is in a public interest.

9. Defamation of the Judge Personally

If the publication or other Act in merely a defamatory attack on the judge and is not intended to interfere with the administration of justice, it will not be taken as contempt of court. The statement complained of may amount to contempt of court only when it is made against the judge in his judicial capacity in the exercise of his judicial function. However, in such a situation a judge is not remedy less and he has the same remedies available which are available to a common man in case of defamation.

Punishment under the contempt of court Act 1971 & Remedies against the order of the court

Section 12(a) says that save as otherwise expressly provided in this Act or in any other law, a contempt of court shall be punished with simple impermanent for a term which may extend to six months or with fine which may extend to two thousand rupees or with both. Provided that the accused of contempt may be discharged or the punishment awarded may be remitted on an apology being made to the satisfaction of the Court. An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bonafidely.

Where a person in found guilty of civil contempt & the court is of the option that imposing fine alone will not amount the end of justice & it is necessary to impose a sentence of impressments, the court may direct that he may be detained in civil prison instead of sentencing him simple imprisonment for such period not exceeding 6 month as it may think fit.

Where the person found guilty of contempt of court on it respect of violation of any undertaking given to court in a company, every such person, who was when in charge of the company at the time when the contempt was committed shall be deemed to be guilty of contempt and the punishment may be enforced with the leave of the court by detention in civil prison of each such person. Provided that nothing contained in this sub-section shall render any such person liable to the punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.

Conclusion

The contempt power in a democracy is only to enable the court to function effectively, and not to protect the self-esteem of an individual judge. The foundation of judiciary is based on the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by disrupting its working, the edifice of the judicial system gets eroded. Judiciary by punishing the guilty infuses faith in the supremacy of law and omnipotence of justice. Every offender is to be punished for contumacious acts under the relevant contempt laws, but it is extremely important to make it sure by the judiciary that these provisions are not to be misused.

It can be adequately inferred that the Contempt of Courts Act, 1971 is of paramount importance in the context of sustaining the concept of justice. It aides to make the process of administering justice expeditious as well as upholds the dignity and faith the people have bestowed in the judicial system of the country. In itself, it abstains from any form of arbitrariness. It gives every organization or individual charged under the act reasonable grounds to defend it or himself, as the case may be. The restrictions, it imposes, is just and fair in them. Moreover, it recognizes the equal footing of all people in the country by bringing the judiciary and its officials within its ambit.

During the course of discussion it has been found several loopholes/contradictions in the provisions of the Contempt of Courts Act, 1971. So it is submitted that for the desired results these loopholes should be pleased by making necessary amendments in the Contempt of Courts Act, 1971.

CHILD MARRIAGE IN INDIA

2017-05-31T23:15:00.003-07:00

I. INTRODUCTION

Child Marraige is considered to be a violation of human rights, according to UNICEF, it represents perhaps the most prevalent form of sexual abuse and exploitation of girls5.In many parts of the world especially underdeveloped countries parents give consent to child marraiges hoping that it would benefit the girl both economically and socially. This practice is especially common in rural areas and amongst economically backward families, the daughter is married off at an young age to relieve the family from her economicresponsibilities.

Many factors are responsible for this practice, the most common ones are poverty,

protection of girls, family honour and the provision of stability during unstable social periods, lack of oppurtunities for girls, lack of awareness about adverse health consequences another big problem is the lack of awareness of law and also inadequate implementation of the existing laws.

It is seen that Child Marriages are caused mainly due to the tyranny of poverty and due to lack of education, so it is no coincidence that the underdeveloped countries of Asia, Africa, Middle East have higher rates of Child Marriage compared to the other parts of the world. Statistics show that the majority of girls in Asia, Africa and Latin America are married by the age of 146. It has been seen that the practice of child marriage is practiced more in countries which have high poverty rates, birth rates and death rates, higher levels of underdevelopment and lack of education.

Unfortunately marriage before attaining adulthood is a reality for many women,

according to UNICEF over 64 million women aged 20–24 years were married or in union before the age of 187. Child marriage has many harmful consequences which include lack of freedom, decreased opportunities of education. Child marriage can also result in enslavement, sexual exploitation and violence against the victims. Not only that, a child bride who is notphysically or psychologically prepared for conjugal life is also exposed to serious health risks such as early unwanted pregnancy which puts a young girl to great risks, increased risks of maternal and infant mortality, increased vulnerability to HIV and other sexually transmitted diseases.

Apart from affecting the health of a girl, Child Marriage has other consequences too.It usually takes away of educational opportunities among girls which limits theiropportunities for employment and income generation. In terms of development, child marriage prevents women from participating fully in the life of the family, the community and society and thus results in social isolation. Child marriage prevents women as well as the society from realising their full potential. It has a negative impact on the position of women in the society and also affects the potential contribution of women to the society.

The society bears a phenomenal cost by allowing the continuation of the practice ofchild marriage. The government and the civil society should play a role to develop and implement systems to prevent or discourage this practice. The existing world order, oftenbased on injustice and unfair economic opportunities, is to a great extent, responsible for thediscriminatory practices against women.

Child Marriage is a very common practice in India, especially amongst the

uneducated sections of the society, which actually forms a large chunk of the population. Infact 40% of the world’s child marriages occur in India. According to UNICEF’s “State of theWorld’s Children-2009” report8 , 47% of India's women aged 20-24 were married before thelegal age of 18, with 56% in rural area. The government has taken several steps to eradicatethis practice, however it is still being practiced all over the country. There are severallegislations on child marriage such as the Child Marriage Restraint Act,1929 and theProhibition of Child Marriage Act, 2006. However there are certain flaws in these

legislations, and also in the implementation of these laws. In the later chapters the legal issuesrelated to child marriages in India have been discussed extensively.

While analysing child marriages in India it can be seen that it is a problem which isaffecting the society in many ways. There are many social, religious, cultural and legalbarriers in prohibiting the harmful practice of Child Marriage in India.

II. CONCEPT AND VARIOUS PERSPECTIVE OF CHILD MARRAIGE.

A. Concept Of Child Marriage

Birth, marriage and death are the standard trio of key events in most people’s lives. But only one – marriage – is a matter of choice. The right to exercise that choice was recognized as a principle of law even in Roman times and has long been established in international human rights instruments. Yet many girls, and a smaller number of boys, enter marriage without any chance of exercising their right to choose. Some are forced into marriage at a very early age. Others aresimply too young to make an informed decision about their marriage partner or about theimplications of marriage itself. They may have given what passes for ‘consent’ in the eyes ofcustom or the law, but in reality, consent to their binding union has been made by others on their behalf 9. The assumption is that once a girl is married, she has become a woman – even if she is only 12. Equally, where a boy is made to marry, he is now a man and must put away childish things. While the age of marriage is generally on the rise, early marriage – marriage of children and adolescents below the age of 18 – is still widely practised and this practice is known as Child Marriage. Child Early Marriage refers to any marriage of a child younger than 18 years old, inaccordance to Article 1 of the Convention on the Right of the Child. While child marriage affects both sexes, girls are disproportionately affected as they are the majority of the victims. Their overall development is compromised, leaving them socially isolated with littleeducation, skills and opportunities for employment and self-realisation. This leaves child brides more vulnerable to poverty, a consequence of child marriage as well as a cause10. While Child Marriage takes many different forms and has various causes, one issue is paramount. Whether it happens to a girl or a boy, early marriage is a violation of human rights. The right to free and full consent to a marriage is recognized in the 1948 Universal Declaration of Human Rights (UDHR) and in many subsequent human rights instruments – consent that cannot be ‘free and full’ when at least one partner is very immature. For both girls and boys, early marriage has profound physical, intellectual, psychological and emotional impacts, cutting off educational opportunity and chances of personal growth. For girls, in addition, it will almost certainly mean premature pregnancy and childbearing, and is likely to lead to a lifetime of domestic and sexual subservience over which they have no control1

B. History of Child Marriage.

As per the Hindu philosophy12, marriage is not just a process of coming together of the Individuals but it is also a holy bond and a commitment which lasts a lifetime. Even the holyscriptures of the Vedas the sacred Hindu texts suggest that an individual should enter thephase of Grihasta " household" after his or her student life. Thus, it can be said that marriageis almost a mandatory custom in the life of all the Hindus. According to the philosophy of theVedas, there is a restriction on child marriage. The age of marriage for a boy is 25 years ormore and that of a girl is 18 years or more.

From the middle Age to the present day13 the custom of child marriage against

Vedas persists in India.There are many reasons to believe that this custom actually originatedin the medieval time when the political climate was unstable and law and order was not yetfixed on the national level. Arbitrary powers were concentrated in the hands of a hierarchyled by a despotic monarch. The predatory Sarasenic feudal lords and princelings of Sarasenicorigins who ruled all over India in the middle ages were a source of a constant threat. Henceparents would seek to get over with the responsibilities of their daughters by getting themmarried very young.

However, from Middle Age14, as states and government developed, the political

system elaborated and modified the Indian society gradually. It transformed the lifestyle andopinion of it's people from a simple to more complex form, restricting significantly the notionof liberty. Women lost their rights and had to obey rules and respect the code be behaviour.They were now subject to family discipline and the honour of their clan. Since young womenWere considered irresponsible and irrational in love, parents married them early before theygot caught into any scandal. Though, age at which the girl was to be married differed and itwas rare for girls younger than 12 to be married in antiquity. Nevertheless, girl brides becameyounger towards the Medieval period, and it became increasingly common for girls as youngas 6 or 8 to be married as Indian society. The prime concern of negotiating the marriage wasto find out the compatibility between the two families. It was believed during those times thatif two persons know each other right from childhood it enhanced understanding and affection.

Hence parents decided on the marriages of their children at a very early age although thedaughter stayed with her parents until she attained the age of puberty.

C. Quantitative Data Of Child Marriage In India.

Child Marriages continue to be a fairly widespread social evil in India. In a study carried outbetween the years 1998 to 1999 on women aged15-19 it was found that 33.8% were currentlymarried or in a union15. This showed that child marriage was far more prevalent amongstgirls and this highlighted the gender dimension of the problem. The National Family HealthSurvey of 2005- 2006 (NFHS-3) carried out in twenty-nine states confirmed that 45% ofwomen currently aged 20-24 years were married before the age of eighteen years. Thepercentage was much higher in rural areas (58.5%) than in urban areas (27.9%) and exceeded50% in eight states16. The percentage of women aged 20-24, married by the time they are 18,stood at 61.2% in Jharkhand followed by 60.3 % in Bihar, 57.1% in Rajasthan, 54.7% in AP,and 53% in MP, UP and West Bengal. The NFHS-3 findings further revealed that 16% ofwomen aged 15-19 were already mothers or pregnant at the time of the survey. It was alsofound that more than half of Indian women were married before the legal minimum age of 18compared to 16% of men aged 20-49 who were married by age 18. Though NFHS-3 did notcompile data on girls who were married below the age of 15, the 2001 Census of India hadrevealed that 300,000 girls under 15 had given birth to at least one child.

Further in a survey conducted by the Government of Rajasthan in 1993 it was foundthat 56% girls had been forced into marriage before the age of 15 and of these 7% weremarried before they were 10.6 A second survey conducted in 1998 in the State of MP foundthat 14 % girls were married between the ages of 10 and 14. 7 In 2006 the Hindustan Timesreported that 57% of girls in India are married off before they are 18 as per the InternationalCentre for Research on Women17.

D. Socio-economic Cause of Child Marriage.

Child Marriage in India has been practiced for centuries, with children married off beforetheir physical and mental maturity. The problem of Child Marriage in India remains rooted ina complex matrix of religious traditions, social practices, economic factors and deeply rootedprejudices. Regardless of its roots, child marriage constitutes a gross violation of humanrights, leaving physical, psychological and emotional scars for life. Sexual activity starts soonafter marriage, and pregnancy and child birth at an early age can lead to maternal as well asinfant mortality. Moreover, women who marry younger are more likely to experiencedomestic violence within the home18.

The phenomenon of Child Marriage can be attributed to a variety of reasons19. Thechief amongst these reasons is poverty and culture, tradition and values based on patriarchalnorms. These norms do not take into account that in actuality, Child Marriage is a violation ofhuman rights, compromising the development of girls and often resulting in early pregnancyand social isolation, with little education and poor vocational training reinforcing thegendered nature of poverty. Young married girls are a unique, though often invisible, group.Required to perform heavy amounts of domestic work, under pressure to demonstratefertility, and responsible for raising children while still children themselves, married girls andchild mothers face constrained decision making and reduced life choices. Boys are alsoaffected by child marriage but the issue impacts girls in far larger numbers and with moreintensity.

Where a girl lives with a man and takes on the role of caregiver for him, the

assumption is often that she has become an adult woman, even if she has not yet reached theage of 1820. The marriage of a minor girl often takes place because of the poverty andindebtedness of her family. Dowry becomes an additional reason, which weighs even moreheavily on poorer families. The general demand for younger brides also creates an incentivefor these families to marry the girl child as early as possible to avoid high dowry paymentsfor older girls. The girl in our patriarchal set up is believed to be parkithepan(somebody’sproperty) and a burden. These beliefs lead parents to marry the girl child. In doing so, theyare of course relieving themselves of the ‘burden’ of looking after the child. The girls areconsidered to be a liability as they are not seen as individuals who can contributeproductively to the family.

Unfortunately, the patriarchal mindset is so strong that the girl has no say in decisionmaking. Texts like Manu Smirti which state21 that the father or the brother, who has notmarried his daughter or the sister who has attained puberty will go to hell are sometimesquoted to justify Child Marriage. Child Marriages are also an easy way out for parents whowant their daughters to obey and accept their choice of a husband for them.There is also a belief that Child Marriage is a protection for the girls againstunwanted masculine attention or promiscuity. In a society which puts a high premium on thepatriarchal values of virginity and chastity of girls girls are married off as soon as possible.

Furthermore securing the girl economical economically and socially for the future has beenput forth as a reason for early marriage22. The institution of marriage in communities orsocieties can be used to serve or strengthen economic and social ties between differentfamilies and even communities. Also a young girl may be offered to a family in order toimprove the financial and social standing of the girl’s family23. Other reasons that have beenlisted for the high prevalence of child marriages in India are lack of education andknowledge, shortcomings in the law, and the lack of will and action on part of theadministration24.

E. Consequences Of Child Marriage

As stated above, Child Marriage is a grave violation of the rights of the child depriving her ofopportunities and facilities to develop in a healthy manner to obtain education and to lead alife of freedom and dignity. It deprives the young girl of capabilities, opportunities anddecision-making powers and stands in the way of her social and personal development.Young brides face the risk of sexual and reproductive ill health because of their exposure toearly sexual activity and pregnancy.

injuries, infections and disabilities, which usually go untreated and some of which arelifelong”29. Research further indicates that the babies of mothers below the age of 18 tend tohave higher rates of child morbidity and mortality. “Infants of mothers aged younger than 18years have a 60 per cent greater chance of dying in the first year of life than those of mothersaged 19 years or older [UNICEF 2007].” Babies are born premature or underweight or youngmothers simply lack parenting skills and decision-making powers30. Secondly, young girlsface the risk of infection with sexually transmitted diseases including HIV. Young brides whorun away from early marriages may end up as sex workers or eventually resort to use sexwork as a way of earning additional income. Young brides also run the risk of catchingdiseases from their respective spouses, as older husbands often engage in sexual relationswith other women outside the marriage. Young married girls do not have bargaining power inthe marriage and therefore cannot negotiate safe sex and are deemed vulnerable. It has alsobeen found that young girls are physiologically more prone to contracting HIV/AIDS, as hervagina is not well lined with protective cells and her cervix may be more easily eroded.

An analysis of the HIV epidemic shows31 that “the prevalence of HIV infection ishighest in women aged 15–24 and peaks in men between five to ten years later.” Women alsoundergo sexual violence in marriage and young girls are particularly vulnerable. In a studycarried out in Calcutta in 1997 where half the women interviewed were married at or belowthe age of 15, with the youngest being married at 7 years old, findings revealed that this agegroup had “one of the highest rates of vulnerability to sexual violence in marriage, secondonly to those whose dowry had not been paid.” The women interviewed said they had sexualintercourse before menstruation had started, that sex was early and very painful, and “manystill continued to be forced into sexual activity by their husbands.” 25Additionally the younggirls “had made their husbands aware of their unwillingness to have sex or of pain during sex,but in 80 per cent of these cases the rapes continued.” As husbands are often much older thantheir brides, girl brides are likely to be widowed at an early age.

usually stop going to school. Giving an education to a girl is perceived by both the girl’s and boy’s families unnecessary for becoming a good wife or a mother, if not a deterrent. Those who have a choice are eventually forced to drop out of school because they are forced to assume the responsibility of doing domestic chores and starting a family etc. The loss of adolescence, the forced sexual relations, and the denial of freedom and personal development attendant on early marriage have profound psychosocial and emotional consequences.

Researchers on Child Marriage in Rajasthan and Madhya Pradesh state that young married girls suffered more than boys due to the abovementioned consequences of Child Marriage33.

III. The HINDU MARRIAGE LAW IN INDIA

The Hindu Marriage Act 1955 was enacted by the Indian Parliament in the year 1955 with the intention of regulating the personal life among the Hindus, especially their institution ofmarriage, its legitimacy, conditions for divorce and applicability etc. There are many significant features in the provisions of the Act that lay down the very foundation of marriage. The basic essence of the act is that it appropriately recognizes the religious ethics and morals of the Hindus. Therefore, the Hindu Marriage Act is applicable to all Hindus, taking within its ambit various offshoots like followers of Prarthana, Arya and BrahmoSamajas and Sikhs, Buddhists and Jains.

1. The Concept Of Void And Voidable Marriage Under The Hindu Marriage Law In India:

a. Concept of Void Marriage:

A Void Marriage34 is one that will be regarded by the every court in any case in which the existence of marriage is in issue as having not been taken place and can be so treated byboth the parties to it without any necessity of any decree annulling it. A decree is nonetheless advisable. It can be obtained by either party to marriage or by person having sufficient interest in it.

A Void Marriage is no marriage. It is a marriage which exist from its beginning. Itis called a marriage because two persons have undergone the ceremonies of marriage. Since they absolutely lack capacity to marry,they cannot, by just undergoing ceremonies, become husband and wife in the eyes of law35. For instance, if a brother and sister perform all the ceremonies of marriage and start living as man and wife, that will not make then husband and wife in the eyes of law. So in case of void marriage parties have no status of husband and wife . Thus, if one of them or both of them take another spouse the offense of bigamy will not be committed. For instance , A and B are two brothers. A marries W, but the marriage is void. A dies leaving behind his brother B , and his widow W. B claims that he is entitled to inherit A’s properties because W was not A’s wife .If he files a suit claiminginheritance to his brother’s property, he can prove in these proceedings that marriage of A with W was void, hence W is not entitled to succeed to. A void marriage confers no status oflegitimacy and therefore children of void marriage are illegitimate36.

In respect of a void marriage no decree of court is necessary. Even when the court

Passes a decree, it merely declares that marriage is null and void. It is an existing fact thatmarriage is void and the court merely makes a judicial declaration of the fact37. Moreover a void marriage cannot be approbated. It cannot be ratified later.

b. Concept of Voidable Marriage:

A Voidable Marriage is one that will be regarded by every court as a valid, subsistingmarriage until a decree annulling it has been pronounced by a court of competentjurisdiction38. However , in English Law, the form of the decree was the same as in the case of void marriage : pronouncing the marriage to have been and to be absolutely null and void to all intends and purposes in the law whatsoever. This lead to a great deal of confusion and conflict. This confusion has been now avoided by the Nullity of marriage Act, 1971. Section 5 lays down, decree of nullity granted after the commencement of this Act on the ground that a marriage is voidable shall operate to annul the marriage only as respects any time after the decree has been made absolute, and the marriage shall, notwithstanding the decree , be treated as if it had existed upto that time.

A Void Marriage is a perfectly valid marriage so long as it is not avoided. A

Voidable marriage39 can be avoided only on the petition of one of the parties to the marriage.

If one of the parties does not petition for annulment the marriage will remain void. If one og the parties dies before the annulment of the marriage the no challenge the marriage. The marriage will remain valid forever.So long it is not avoided all the legal consequences of a valid marriage flow from it, such as: it confers the status of husband and wife on theparties,thechildrens are legitimate and all mutual rights and obligation arises from it.

2. Prescribed Age For Marriage Under Hindu law.

Almost all systems of law have permitted marriages at an early age, and age of marriageand age of majority have been different. The Hindu Sages have enjoined that a girl should be married before she attained puberty though they laid down the age of 25 for the boys – the age when a child returned from Guru’s ashram after completion of his education. Under ancient Hindu law the age of majority was much less, under the Dayabhaga School it wascompletion of 5th year, while under the Mitaksharaschool it was completion of 16 years40.

The Hindu sages like Manu and Gautama enjoined that it was the religious duty of the fatherto give the daughter in marriage before the signs of puberty made appearance. Some sages even declared that if a girl was married after she attains marriage-age, she was at liberty to choose a husband for herself41. The Hindu Marriage Act,1955 originally laid down the age of 15 for girls and age 18 for boys. These ages were raised to 18 and 21 of respectively by the Child Marriage Restraint (Amendment) Act,1978. Section 5 (iii) of the Hindu Marriage

Act,1955 lays down that a marriage may be solemnised between any two hindus if“bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage42”.But such a policy of law that non- age does not render the marriage void orvoidable. The marriage remains valid. The 59th Report of the Law Commission felt that “thegeneral understanding that the breach of that conditions does not effect the validity of marriage” should remain undisturbed43. The rationale behind this policy is that minormarriages in our country are still so rampant that if we would lay down that non-agerendered a marriage void, probably 80 percent of marriages: to put a damper on them. But if performed, the validity of the marriage will not be effected in pursuance to policy of discouraging child marriages.

3. Conditions For Valid Marriage Under Hindu Marriage Act,1955.

A marriage may be solemnized between any two hindus, if the following conditions44 arefulfilled, namely:-

I. neither party has a spouse living at the time of the marriage;

II. at the time of the marriage, neither party-

a) is incapable of giving a valid consent to it in consequence of unsoundness of mind;or ,

b) though capable of giving a valid consent, has been suffering from mental disorderof such kind or to such an extent as to be unfit for marriage and the procreation of children;or,

c) has been subject to recurrent attacks of insanity or epilepsy;

III. the bridegroom has completed the age of twentyone years and the bride the age of eighteen years at the time of the marriage;

IV. the parties are not within the degrees of prohibited relationship unless the customor usage governing each of them permits of a marriage between the two;

V. the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.

IV. CHILD MARRIAGE LAW IN INDIA – AN ANALYSIS.

A. The Child Marriage Restraint Act,1929.

a) Legislative History Of The Child Marriage Restraint Act,1929.

Child marriage existed historically in India, it is believed that child marriage was prevalent in the ancient as well as medieval times45.Some Indian scholars question the existence of child marriage in ancient India, butin most religious texts the father was urged to marry of his daughter at a very young age.Most religious texts recommend46 ages between 8 to 10 as the ideal age for marriage. Sage Manu, in his Manusmritihas categorically written47 that if a girl remains unmarried afterReaching the puberty, the father has failed in his duty towards her. Similarly, another sage,Parasara, said that the parents or guardians of a girl who reaches puberty before marriage will definitely go to hell. Amongst the Yadavs, Guptas ,Thahare, Kurmis, Mourya it was believed that if a daughter is married before the start of her menstrual period the blessings that will accrue will be akin to the donation of 7.800 cows. On the other hand, if the marriage is solemnized after a daughter’s menstrual period, it will have the same effect as killing 7,800 cows. One thing that must be kept in mind when tracing the religious and cultural roots of child marriage is that in 400 BC the average life span of a woman was between thirty five and forty years; if this was a rationale for early marriage at one time, this is no longer an issue.

According to Customary Muslim Law Child Marriages are permitted. A person can enter into a valid marriage after reaching puberty, that is once he or she attains the age of 15.Even in the medieval times Child Marriage was prevalent, according to studies48

the predatory feudal lords and the princes who stalked all over India in the medieval age werea source of constant threat. Hence parents would seek to get over the responsibilities of their daughters by getting them married off before they reached marriageable age. According to some scholars the practice of child marriage did not exist in ancient India and started in the medieval age along with other evil practices like Sati and dowry.The practice of Child Marriage was prevalent even during the British period. Two significant cases in the nineteenth century brought the issue of Child Marriage into limelight. The Rukhmabai case49 in Maharashtra and Phulmonee case50 in Bengal as they are popularly known raised significant questions about the age and issue of consent in Hindumarriage. In the case of Phulmonee the girl child aged eleven years died because of a haemorrhage from a rupture of the vagina caused by her husband who had forcible sexual intercourse with her, but the court acquitted her husband as the girl was above ten years and according to the law sexual intercourse with a wife who was above the age of ten was not rape. This case galvanised public support for the Age of Consent Bill and in many ways silenced the opposition. Both the cases marked the tension between the Hindu orthodoxy on one hand that upheld child marriage and perceived any opposition to it as an affront to tradition and social reformers opposing such religious bigotry on the other hand. For the latter.such blind adherence to social norms meant the continuation of harmful practices in the name of tradition and therefore necessitated immediate challenge of such socially sanctioned practices including Child Marriage. While the debate on Child Marriage is often understood as a tradition-modernity dichotomy, it is also important to bring to the fore the struggle by women themselves in these cases to challenge patriarchal values and practices, albeit in their limited ways.

The issue of Child Marriage was first addressed in the 1860’s when the Indian

Penal Code laid down laws related to Child Marriage. The minimum age for marriage was not laid down, laws were made to punish those who had sexual intercourse with their wives below a particular age. The change was intended to give protection to young girls from sexual abuse within the institution of marriage. In 1860 the India Penal Code was drafted, according to Section 375 of the IPC sexual intercourse by a man with his wife who is under the age of 15 is considered to be rape. This was the first step taken in the direction of making childmarriage illegal, however this law could not be successfully implemented and the practice of child marriage still continued all over the country. In 1929 the Child Marriage Restraint Act

or the Sarda Act came into force with the objective of eliminating the practice of child marriage. The minimum age of marriage was raised to 14 years for girls by this Act, later it was amended in 1978 by which he minimum age was raised to 18 years for girls. However this Act has several loopholes and weaknesses, and very few persons have been prosecuted under this Act. It can be said that the enactment of this Act was only a perfunctory gesture by the government, without serious commitment to prohibiting Child Marriages.

2. The Objective And Reasons Of The Act.

The Child Marriage Restraint Act, 1929 was passed during the tenure of British rule on prepartitionIndia. It forbade the marriage of a male younger than twenty-one or a female

younger than eighteen. A marriage fell under the scope of this Act if either of the contracting parties met the established criterion of a child.

To eradicate the evil of Child Marriage51, the Child Marriage Restraint Act was

passed in 1929. The object is to eliminate the special evil which had the potentialities of dangers to the life and health of a female child, who could not withstand the stress and strains of married life and to avoid early deaths of such minor mothers.

3. The Main Provisions Of The Act.

1.The penal provisions of the Child Marriage Restraint Act,1929 do not invalidate the fact of marriage nor do the penal provisions apply to a child. However the Act lays52 down punishment for male adult below twenty one years of age and for male adult above twenty one years of age who contracts a Child Marriage and also for the person who performs conducts and directs a child marriage.

2. Section 6 of the Act, provides53 that where a minor contracts a Child Marriage any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful orunlawful, who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, shall be punished with simple imprisonment which may extend to three months and shall also be liable to fine.

3. Section 7 provides54 that the Code of Criminal Procedure, 1973 shall apply to offences under the Act as if they were cognizable offence for the purpose of investigation.

The Act provides that only a Metropolitan Magistrate or a Judicial Magistrate of the First Class can take cognizance of, or try any offence under this Act.

4. The Act lays down55 the period of Limitation of cognizance. It lays down that no Court can take cognizance of any offence under this Act after the expiry of one year from the date on which the offence is alleged to have been committed. This further dilutes the efficacy of the law.

5. The Act lays down the provisions56 for injunction, Section 12 empowers the Magistrate to issue injunction prohibiting marriage in contravention of this Act. The Court may issue an injunction against any of the persons mentioned in Section 3, 4, 5 and 6 of this Act prohibiting such marriage.

An injunction shall not be issued against any person unless the court has previously given notice thereof to the person concerned and has afforded him an opportunity to show cause against the issue of the injunction. This requirement of the law may defeat the purpose of social justice where there is imperative need of judicial intervention to save the welfare and interest of the child.

B. The Prohibition Of Child Marriage Act,2006.

In 2006 the parliament approved a bill outlawing Child Marriages and voiding

those that have taken place. “Sixty-five percent of the girls married in India are below the age of 18. We need to remove this biggest obscenity of child-child and child adult marriages”,

Minister of State for Women and Child Development declared while moving the Prevention of Child Marriage Bill, 2004 that the Rajya Sabha later adopted57. The supposed goal of this Act is to amend the laws that are in force in relation to child marriage, and to abolish the evil practice. However it can be said that the legislature has not really tried to abolish the practiceof Child Marriage, Child Marriages have been merely discouraged. The legal position has not changed a great deal even after the passing of this Act. The present legal position after the passing of the Child Marriage Prohibition Act, 2006 has been discussed in detail in the subsequent chapters.

541. The Objective And Reasons Of The Act.

The Child Marriage Restraint Act,192958 was enacted with a view to restraining

solemnization of child marriages. The Act was subsequently amended in 1949 and 1978 in order, inter alia, to raise the age limit of the male and female persons for the purpose of Marriage; The Act, though restrains solemnization of child marriages yet it does not declare them to be void or invalid. The solemnization of child marriages is punishable under the Act.

There has been a growing demand for making the provisions of Act more effective and the punishment there under more stringent so as to eradicate or effectively prevent the evil practice of solemnization of child marriages in the country. This will enhance the health of children and the status of women. The National Commission for Women in its Annual Report for the year 1995-96 recommended59 that the Government should appoint Child Marriage Prevention Officers immediately. It further recommended that— (i) the punishment

provided under the Act should be made more stringent; (ii) marriages performed in contravention of the Act should be made void; and (iii) the offences under the Act should be made cognizable.

The National Human Rights Commission undertook a comprehensive review of the existing Act and made recommendations for comprehensive amendments therein vide its Annual Report 2001-2002. The Central Government, after consulting the State Governments and Union territory Administrations on the recommendations of the National Commission forWomen and the National Human Rights Commission, has decided to accept almost all the recommendations and give effect to them by repealing and re-enacting the Child Marriage Restraint Act, 1929. Thereafter the Prohibition of Child Marriage Act,2006 has been passed.

The Prohibition of Child Marriage Act,2006 was enacted to provide for the prohibition of

solemnisation of child marriages and for matters connected therewith or incidental thereto.

2. The Main Provisions Of The Act,2006.

(i) Section 3 of the Act lays down a provision that a petition can be filed for annulling a Child marriage at the option of the either party.The act states that a Child Marriage isvoidable at the option of either party to the marriage.

(ii) Section 4 lays down provision for mantainance and residence to the female

contracting party to Child Marriage.

(iii) Section 5 of the Act lays down custody and mantainance of the children born out of Child Marriage.

(iv) Section 6 of the Act lays down the provision as to legitimacy of Children born out of Child Marriage. (v) Section 9 of the Act lays down the punishment of the male adult marrying a child.

(vi) Section 10 of the act lays down punishment for solemnisation of Child Marriages.

(vii) Section 12 of the Act lays down the provision as to when a Child Marraige shall be deemed to be void

(viii) Section 13 of the Act lays down the provision as to the power of the court to issue injunction prohibiting Child Marriage.

(ix) Section 15 of the Act lays down provision making the offence of Child Marriage cognizable and non-bailable.

(x) Section 16 of the Act lays down provisions for appointment of Child Marriage

prohibition officer by the state government

V. The LEGAL STATUS OF CHILD MARRIAGES IN INDIA.

One of the main reasons for the existence of child marriage is weak legislations and lack of implementation of the existing laws. This results in child marriages being conducted with impunity. In India age of marriage is 18 for a female and 21 for a male60. Any marriage of a person below this age is punishable in India.

A. Position Under Child Marriage Restraint Act,1929.

Under the Child Marriage Restraint Act,1929 the policy of the government was to discourage child marriages by punishing those who promoted or engaged in the act of marrying underage girls and boys, however the new spouses were not liable for any action under the Act despite both parties being under the prescribed age, and such a marriage was considered to be valid and legally enforceable. The reason behind such a policy was that it was in the best interests of the girls involved in such a marriage; for under the existing cultural and social ethos of the land a married girl was no more considered to be a part of the family of her birth and instead a part of the family of the groom. More importantly, since non-recognition of such marriages would imply that the off-springs of such marriage would be ill-legitimate, it was considered important to consider such under-age marriages valid.10

Under the Hindu Marriage Act, 1956 even marrying parties persons were liable to be punished. However child marriages were not declared to be void or voidable, they were still valid and legally enforceable, and a person could not render it void after attaining adulthood if a valid marriage had taken place during his or her childhood.

B. Position Under Prohibition Of Child Marriage Act,2006.

Under the Prohibition of Child Marriage Act,2006 child marriages were not made void but voidable, that is the parties to an underage marriage could declare it void after attaining adulthood. However the girl still had the right to maintenance from her husband even if the marriage was declared to be void, hence the right of the girl was protected. Another changethat was brought about by the act is that the punishment for encouraging child marriage was increased. Before the passing of this Act the punishment was a meager simple imprisonment upto three months and fine. Under the new Act the a male adult marrying a child can punished with rigorous imprisonment which can extend to two years and also liable to pay a fine up to 2 lakhs. Persons solemnising the marriage, abetting the marriage or taking part in the marriage in any way can also be punished in a similar fashion.

Under Section 12 of the Prohibition of Child Marriage Act,2006 certain marriages can also be declared to be void61.

The marriage of a minor child is rendered to be void if the child :-

(a) is taken or enticed out of the keeping of the lawful guardian; or(b) by force compelled, or by any deceitful means induced to go from any place; or

(c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes, such marriage shall be null and void.

The court has also been given more powers under this Act. Prevention is always

better than cure, the Act envisions situations wherein conducting of the child marriages should be stopped. The court has the power to issue injunction prohibiting child marriages62. If, on an application of the Child Marriage Prohibition Officer or on receipt of information through a complaint or otherwise from any person, a Judicial Magistrate of the first class or a Metropolitan Magistrate is satisfied that a child marriage in contravention of this Act has been arranged oris about to be solemnised, such Magistrate shall issue an injunction against any person including a member of an organisation or an association of persons prohibiting such marriage. Under this Act provisions are made for the maintenance of the girl even if themarriage is annulled later, so the rights of the girl to get maintenance is protected. Thechildren born out of such a marriage are also deemed to be legitimate for all purposes. Hencethe rights of the a child born under such a marriage has also been protected under this Act.

At present, an a child marriage is considered to be a valid marriage, although it canbe annulled at the option of one or both the parties63. Recently it was held64 by the Delhi High Court that the marriage between an 18 year old boy and a 16 year old girl is valid since it is not declared to be void or voidable under any Act, and although both are underage for the purpose of marriage the marriage is legal and binding. After the passing of the Child Marriage Prohibition Act such marriages are made voidable, but nobody other than a party to the marriage can file a petition for the annulment of the marriage.

However in another case the same High Court has held a child marriage as a human right violation, and a minor girl and her forty year old husband were restrained from consummating their marriage till she attains the age of majority. The girl was ordered to staywith her parents till attaining the age of majority. However the court refused to declare the marriage void.

Hence, the courts have given conflicting judgements and as a result the legal position is not very clear, and in many cases it has been seen that the offenders have gone unpunished inspite of committing the offence.

VI. CONFLICT OF CHILD MARRIAGE LAW IN INDIA WITH OTHER STATUTES

IN INIA

The intention of the legislature to .approve the validity of the child marriage is evident in

other enactments also. It is distressing to note that the Indian Penal Code, 1860 acquiesces

child marriage65.The exception to section 375 specifically lays down that sexual intercourse

of man with his own wife, the wife not being under fifteen years of age is not rape, thus

ruling out the possibility of marital rape when the age of wife is above fifteen years66. On the

other hand, if the girl is not the wife of the man, but is below sixteen, then the sexual

intercourse even with the consent of the girl amounts to rape? It is rather shocking to note the

specific relaxation given to a husband who rapes his wife, when she happens to be between

15-16 years. This provision in the Indian Penal Code,1860 is a specific illustration of

legislative endorsement and sanction to child marriages. Thus by keeping a lower age of

consent for marital intercourse, it seems that the legislature has legitimized the concept of

child marriage. The Indian Majority Act, 1875 lays down eighteen years as the age of

majority but the non obstante clause67(notwithstanding anything contrary) excludes marriage,

divorce, dower and adoption from the operation of the Act with the result that the age of

majority of an individual in these matters is governed by the personal law to which he is a

subject. This saving clause silently approves of the child marriage which is in accordance

with the personal law and customs of the religion.

Another glaring instance of legislative endorsement of Child Marriage can be seen in

the Hindu Minority and Guardianship Act, 1956, which clearly says that the natural

guardian68 of a minor girl is her husband. This section does not envisage the impact when the

husband of the minor girl also happens to be a minor himself. This acceptance of

guardianship of the minor wife itself indicates the legislative intention of giving legitimacy to

such marriages. It is to be specifically noted that the other legislations like the Indian Penal

Code and Indian Majority Act are pre independence legislations whereas the Hindu Minority

and Guardianship Act is one enacted in the post independent era Another post independent

social welfare legislation, the Dowry Prohibition Act, 1961 also contains provisions which

give implied validity to minor's marriages. The words 'when the woman was minor' used in

section 6(1)(c)69. reflects the implied legislative acceptance of the child marriage. CriminalProcedure Code, 1973 also contains a provision which incorporates the legislative

endorsement of Child Marriage. The Code makes it obligatory for the father of the minor

married female child to provide maintenance to her in case her husband lacks sufficient

means to maintain her70.

The insertion of option of puberty to Hindu Law through an amendment in 1976 indicates the

silent acceptance of child marriages. The option of puberty provides a special ground for

divorce for a girl who gets married before attaining fifteen years of age and who repudiates

the marriage between 15- 18 years. Legislative endorsement and acceptance which confers

validity to minor's marriage in other statutes definitely tarnishes the very purpose and object

of the Child Marriage Restraint Act,1929 - to restrain and to prevent the solemnization of

Child Marriage. These provisions containing legal validity provide an assurance to the

parents and guardians that the legal rights of the married minors are secured. The acceptance

and acknowledgement of such legal rights itself and providing a validity of Child Marriage

defeats the legislative intention to curb the social evil of Child Marriage.

VII. AN ANALYSIS OF THE JUDICIAL TRENDS IN INIDA REGARDING CHILD

MARRIAGES.

Solemnization of Child Marriage is an offence under the Child Marriage Restraint Act, 1929.

The Act was simply designed to restrain solemnization of child marriage without affecting

the validity of marriage. The Preamble of the Act specifically states that the aim of the Act is

'to restrain' the solemnization of Child marriage. How far this object has been achieved, poses

a debatable issue. The word 'restrain' means to keep in check, under control, or within bounds

and is different from "prohibit, - avoid or invalidate." Hence, it is doubtful whether the

validity or invalidity comes within the scope of the Act. Even before the enactment of the

Act, the marriage of a minor duly solemnized had been considered as valid. Marriage under

Hindu Law is a religious ceremony and a sacrament or samskara. Hence when the marriage

rituals are completed by Saptupadibefore the consecrated fire it creates a religious tie, which

once created cannot be undone. Thus completion of the marriage ceremony with rituals is

enough to confer validity to the marriage .

1. The Madras High Court categorically upheld the legal status of Child Marriage even

in 1891. In Venkatacharyulav Rangacharyula71 ,Vaishnava Brahmin girl got

married without the consent of her father. Her mother falsely informed the priest, that the father had given his consent.

Accordingly he performed the marriage with all rituals. The validity of the marriage was questioned on the ground of lack of consent of the father. Declaring the validity of that marriage, the Division Bench pointed out that the person married may be a minor or even of unsound mind, and yet if the marriage rituals are duly solemnized, it is a valid marriage.Thusthe duly solemnized marriage was valid even if the parties to marriage were incapacitated. A perusal of the provisions of the Child Marriage Restraint Act,1929 reveals that it is silent about the validity aspect of child marriage.It only penalizes the solemnization of the child marriages. Whether the judicial response is in tune with the legislative intention is a much discussed issue in various judicial decisions.

2. In Munshi Ram v. Emperor 72, he daughter of one Ram Chander was married to one Munshi Ram's minor son. The marriage ceremony was completed with the observance of all rituals connected with the marriage. The Court painted out that the gaund

ceremony is not a part of the marriage ceremony, and the failure to perform it doesnot affect the completion or performance of the marriage. Considering the validity ofchild marriage,Justice Ganga Nath stressed his view in the following words:

“The Act aims at and deals with restraint of the performance of the marriage. It has nothing to do with the validity or invalidity of the marriage. The question of validity and invalidity of the marriage is beyond the scope of the Child Marriage Restraint Act,1929”. Hence the judges are constrained by the limitations in the Act. Even if the judge feels the omission in the legislation he has no power to fill the gap. The judicial creativism is restricted by the express words used in the statute or by necessary implication. If the omission of the legislature is intentional, the courts have nothing to do with it. The Courts have to delve deep into the words to find out the true purpose and object of the Act at the time of enactment.

3. In the same year, the Andhra High Court also discussed this issue. In Moti v. Ben i73 made a complaint against one Chhotulal that he had kept Beni's daughter Chamelia in wrongful confinement. Chamelia was taken from the custody of Chhotulal and was given into the custody of the mother as per the request of Beni. During the

proceedings it was known that the girl was married to Moti.

Then the Magistrate directed to produce the girl before the court and handed her over to the husband. Against this order an application for revision was filed before the District Magistrate. The District Magistrate had ordered Chamelia to the custody of the mother saying that she was yet a girl of thirteen years and she cannot be legally married and therefore the proper guardian is the mother. 'the matter was referred to the High Court.

While setting aside the order of the District Magistrate, Justice Thomobo observed thatthe court below acted without jurisdiction. He vehemently criticized the remark of the District Magistrate that the marriage of Chamelia with Moti was an illegal marriage. His words reflect the real status of the child marriage and the penal nature of the offence under the Act.

“It is true that celebration of this marriage may have contravened the provisions ofthe Child Marriage Restraint Act, 1929; but marriage of a child is not declared by the Child Marriage Restraint Act, 1929 to be an invalid marriage. The Act merely imposes certain penalties on persons bringing about such marriages”.

4. In 1961, Justice S.P. Mohapatra strongly emphasized the indisputable aspect of the validity of marriage in Birupnkshya Das v. Khujubehare74. The Act does not

invalidate the marriage even though it may be in contravention of the provisions of the Act75. Add frm data

The Hindu Marrige Act was enacted in 1955 and contains the same age limit for bride andbridegroom at par with the Child Marriage Restraint Act,192976. The said Act remains silent about the legal validity of the child marriage and continues the earlier penal policy adopted inthe Child Marriage Restraint Act in case of violation77. The legislative policy adopted by thecolonial Government has been followed even after fifty three ycars of independence withoutany change. The judicial decisions also support the view that the validity of the marriage is not affected by the violation of age rule.

5. In Kalawativ. Devi Ram78, the Judicial Commissioner of Himachal Pradesh declared

that the marriage in violation of the age rule prescribed under the Hindu Marriage

Act,1955would be neither void nor voidable. Judicial Commissioner Capoor

emphatically declared that the minority of the wife or of her guardian itself is not a

ground for getting it declared null and void.

He affirmed his view in his next decision Naumiv. Narotam79. Realising the

unnecessary hardship and consequences of making the child marriage void, the legislature

may have intentionally omitted incorporating any provision dealing with invalidity of child

marriage in the Hindu Marriage Act.

6. InPremiv. Dayararn80. Judicial Commissioner Ornprakash rightly shared this view

saying that it is not the duty of the court to fill the gaps intentionally left by the

legislature.

“A marriage which contravcncs the condition specified in clause (iii) of section 5 of the

Hindu Marriage Act,1955 is not declared void by section 11 of the Hindu Marriage Act,1955

or any other section of the Act. The omission to declare such a marriage to be void by section

11 of the Hindu Marriage act,1955 or any other section does not appear to be merely

accidental. The legislature has provided punishment under section 18 of the Act, for the

breach of the aforesaid conditions. It is not for the court to speculate upon the reasons for the

aforesaid intentional omission. But it may not be that the legislature did not intend to declare

child marriages contravening the condition about age, specified in clause (iii) of section 5 as

void, as though such marriages are discouraged by society and Law, yet the evil is deep

rooted and child marriages are not rare in the country and declaring such marriages as void

must have resulted in unfortunate consequences and unnecessary hardship to the parties”.

7. In another case Ma Hari v. Director of Consolidation81. Justice Sathish Chandra of

the Allahabad High Court observed that the solemnization of marriage in

contravention of the provisions of the Hindu Marriage Act may result in punishment,

yet the marriage would not become null and void and the marriage would remain

valid in Law and enforceable and recognizable in a court of law.

8. Justice S. Acharya of the Orissa High Court shared the same view in Buda Sahu v.

Laburani Sahuni82. However, in Budhanv.Manraj83., , the court adopted the

opposite view while considering the issue of restitution of conjugal rights that the

marriage may not be valid if performed in contravention of the age rule but the

invalidity cannot be pleaded as an answer to a petition for restitution of conjugal

rights. This judicial interpretation which was in sharp contrast to the earlier judicial

trend was discussed in the 59th Report of the Law Commission84 and the Commission

emphasized the general understanding that child marriage is valid.

9. In Mohindev Kaur v. Major Singh85 The Division Bench of the Punjab and Haryana

High Court consisting of JJ Pandit and Gopal Singh vehemently emphasized that the

marriage in contravention of age rule is not a nullity and hence such contravention

cannot be pleaded as a defence to a petition for restitution of conjugal rights. It was

further observed that the infringement of clause (iii) of section 5 did not affect the tie

of marriage and render the marriage either void or voidable.

While deciding a petition on restitution of conjugal rights in Gindan v. Barila86, Justice

Tankha affirmed the validity of the child marriage and the penal nature of the offence8

7. In 1977, the Full Bench of Andhra High Court in VenkataRamana v.State88

overruled the earlier Saramma’s case upheld the validity of' child marriages in

India. In this case the wife had made a complaint against the husband under section

49489 of the Indian Penal Code as he contracted a second marriage. The age of the

husband and wife at the time of marriage was thirteen and nine years respectively.

The defence of the husband was the first marriage as null and void, as it infringed the

age rule as required for a valid marriage and he relied on Saramma’scase.

The Full Bench observed that the violation of clauses (iv) and (v) of section 5 of the

Hindu Marriage Act renders the marriage null and void, where as, it is silent about the effects

of violation of clause (iii) of the section 5 of the Hindu Marriage Act,1955. Neither section 11

nor section 12 makes any reference to the violation of conditions relating to age rule. The

silence of the legislature about the legal effect of violation of clause (iii) except the penal

liability clearly reveals the absence of legislative intention to invalidate child marriage. It\