General Studies: Indian Constitution

Fundamental Rights

Right to Equality

Article 14 : Equality before law – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Equality before the law implies that no one is above the law of the land.

1. However, the Constitution allows the following exceptions to the rule of equality before the law :

The President or the Governor of a State is not answerable to any Court for the exercise and performance of the powers and duties of office;

No criminal proceeding is to be instituted or continued against the President or a Governor in any Court during his term of office;

No civil proceeding in which relief is claimed against the President or the Governor can be instituted during his term of office in any Court in respect of any act done by him in his personal capacity, before or after he entered the office of President or Governor, until two months expire after notice in writing has been delivered to the President / Governor stating the nature of the proceedings, the cause of action,- and other details.

2. These apart, other exceptions, such as in favour of foreign rulers and ambassadors, also exist in accordance with international standards.

Article 15 : Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth - Also, nothing in this article shall prevent the State from making any special provision for women and children and also for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Article 16 : Equality of opportunity in matters of public employment – There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

It does not prevent the State from prescribing the necessary qualifications and selective tests for recruitment for Government services.
Then, there may be good reasons for reserving certain posts in a State for the residents only.
It also empowers the State to make special provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of State are not adequately represented in the services under the State.
It also provides for the reservation of seats in promotion for the Scheduled Castes and Scheduled Tribes.

Article 17 : Abolition of untouchability – Untouchability is abolished and its practice in any form is forbidden.

Article 18 : Abolition of titles – No title, not being a military or academic distinction, shall be conferred by the State.

Bharat Ratna, Padma Vibhushan, Padma Bhushan, Padma Shri and other State awards are not regarded as titles in terms of Article 18 (1) of the Constitution.
Clause (2) prohibits a citizen of India from accepting any title from a foreign State.
Clause (3) provides that a foreigner holding any office of profit or trust under the State cannot accept any title from any foreign State without the consent of the President. This is to ensure loyalty to the government he serves for the time being and to shut out all foreign influence in Government affairs.
Clause (4) provides that no person holding any office of profit under the State is to accept without the consent of the President, any present, emolument or office of any kind from or under any foreign State.

It is to be noted that there is no penalty prescribed for the infringement of the above prohibition.
Article 18 is merely directory. It is however, open to the Parliament to make a law for dealing with such a person who accepts a title in violation of the prohibition prescribed in Article 18.

Right to Freedom

Article 19 : Protection of certain rights regarding freedom of speech etc – It guarantees the citizens of India the following six fundamental freedoms :

Freedom of Speech and Expression
Freedom of Assembly.
Freedom to form Associations.
Freedom of Movement.
Freedom of Residence and Settlement.
Freedom of Profession, Occupation, Trade or Business.

Freedom of Press : The Indian Constitution does not provide for the freedom of Press separately. It is implicit in Article 19. The restrictions that limit the freedoms in the case of individuals apply to the press also.

Article 20 : Protection in respect of conviction for offences.
No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
Thus the legislature is prohibited to make criminal laws having retrospective effects.

No person shall be prosecuted and punished for the same offence more than once (double jeopardy).
No person accused of any offence shall be compelled to be a witness against himself.

Under the frame of criminal jurisprudence, a person is presumed to be innocent and it is for the prosecution to establish his guilt.
Again, a person accused of an offence need not make any statement against his will.

Article 21 : Protection of life and personal liberty.
No person shall be deprived of his life or personal liberty except according to procedure established by law.

Personal freedom is secured by the Constitution by the judicial writ of Habeas Corpus (Article 32 and 226).
The 86th Constitutional Amendment Act, 2002, has inserted in the Constitution a new article 21-A. It states that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.

3. Inferred Rights : They are the rights of the citizens which are not explicitly provided by the Constitution but have been derived by liberal interpretation of the various provisions of the Constitution.
Some of the Inferred rights from Article 21 are :

Right to health of the workers.
Right to privacy (i.e. to be left alone).
Right to live with dignity.
Right against denial of wages and arbitrary dismissal of workers.
Right to speedy trial for under-trials.
Right against cruel punishment.
Right to shelter.
Right to free legal aid.

Article 22 : Protection against arrest and detention in certain cases.
It states that :

No person who is arrested shall be detained in custody without being informed of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice;
Every person who is arrested and detained 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.

The above safeguards are not, however, available to an enemy alien and a person arrested or detained under a law providing for Preventive Detention.
Preventive Detention means ‘Detention of a person without trial’. Its objective is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it. The government is entitled to detain an individual under Preventive Detention only for two months. If it seeks to detain the arrested person for more than two months, it must obtain a report from an Advisory Board.
Parliament is empowered to prescribe, by law, the maximum period for which a person may be detained under a law of Preventive Detention.

Right Against Exploitation

Article 23 : Prohibition of traffic in human beings and forced labour – Traffic in human beings and ‘begar’ (involuntary work without payment) and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

Article 24 : Prohibition of employment of children in factories etc – No child below the age of 14 can be employed in any factory or mine or any other hazardous employment.

Right to Freedom of Religion

Article 25 : Freedom of conscience and free profession, practice and propagation of religion.
This right is, however,

Subject to public order, morality and health and to the other provisions of Part III of the Constitution.
Further, the State is empowered by law to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice.

Article 26 : Freedom to manage religious affairs. Subject to public order, morality and health, every religion shall have the right,

To establish and maintain institutions for religious and charitable purposes;
To manage its own affairs in matters of religion;
To own and acquire movable and immovable property;
To administer such property in accordance with law.

Article 27 : Freedom as to payment of taxes for promotion of any particular religion – It provides that ‘no person shall be compelled to pay any tax for the promotion or maintenance of any particular religion or religious denomination’.

Article 28 : Freedom as to attendance at religious instruction or religious worship in certain educational institutions.

Clause (1) says that no religious instruction shall be provided in any educational institution wholly maintained out of State funds.
Clause (2) says that Clause (1) shall not apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.
Clause (3) says that no person attending any educational institution recognized by die State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.

Cultural and Educational Rights

Article 29 : Protection of interests of minorities.

Any section of the citizens residing in the territory of India or in any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

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

All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

Article 31 : Omitted by the 44th Amendment Act, 1978.

Right to Constitutional Remedies

Article 32: The right to move the Supreme Court in case of the violation of Fundamental Rights (called Soul and heart of the Constitution by Dr. B.R Ambedkar).

To enforce the Fundamental Rights, the Supreme Court is empowered, under Article 32, to issue writs of various forms.

Human Rights

1215 - Magna Carta, world first document to con tain Human Rights.
1864-1949 - Genevral Convention on Human Rights.
1948 - Universal Declaration of Human Rights.
1948 - United Nations Commission on Human Rights was set up.
2005 - United Nations Human Rights Commission was founded.
Universal Declaration of Human Rights (UDHR) is a non-binding declaration adopted by the United Nations General Assembly in 1948. UDHR urges member nations to promote a number of human, civil, economic and social rights.
The Commission on Human Rights had drafted the International Bill of Human Rights and it was adopted by the United Nations General Assembly on 10 December 1948 as the Universal Declaration of Human Rights.
10 December is globally celebrated as Human Rights Day.

UNHRC

The United Nations Human Rights Council was founded in 2005. It was founded to replace the United Nations Commission on Human Rights.

UNHRC is a subsidiary body of the United Nations General Assembly and reports directly to it.
UNHRC has fifty-three members out of total members of the United Nations General Assembly. Its members are elected by simple majority in a secret ballot of the United Nations General Assembly. Its Members are elected for the term of six years.
UNHRC has its headquarter at Geneva.
UNHRC can appoint independent experts to investigate alleged human rights abuses and to provide the council reports.
UNHRC may request that the Security Council take action when human right violations occurs, this action may be direct action, or may involve sanctions and Security Council may also refer cases to the International Criminal Court (ICC).
Besides UNHRC. Amnesty International and Red Cross Society also works for the protection and pro-motion of human rights internationally.

National Human Rights Commission

The National Human Rights Commission is a statutory body in India which came into existence through the Protection of Human Rights Act, 1993 and came into force in 1994.
The protection of Human Rights Act, 1993 provides for setting up the National Human Rights Commission at the centre as well as one commission each at the state level.

Composition of NHRC
Chairperson - Hon’ble Justice Shri S.Rajendra Babu
Members - Hon’ble Dr. Justice Shivraj V. Patil Hon’ble Justice Y. Bhaskar Rao, Shri. R.S.Kalha, Shri. P.C. Sharma
Ex-officio-Members - Chairman, National Minorities Commission Chairman, National Commission for Women, Chairman, National Commis-sion for SCs & STs.
The National Human Rights Commission is designed to protect human rights, defined as rights relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the International Covenant and which are enforceable by the Courts in India.
Composition

National Human Rights Commission consists of a chairman and four members, all of them being full-time members.
Apart from there full-time members, the commission also has its deemed members as the chairpersons of the National Commission for minorities, the National Commission for SCs and STs and the National Commission for women.
The multi-membership is intended to rainforce the independence and impartiality of the commission of the five members including the chairperson, three are to possess high-level judicial background and the remaining must have knowledge of or practical experience in matters relating to Human Rights.
The Chairman of NHRC must be a former Chief Justice of India.

Functioning of NHRC

NHRC can intervene in any legal proceedings involving an allegation of violation of Human Rights.
It can visit, with the prior approval of the State Government, any jail to study the living conditions of the inmates and make recommendations.
It can review the safeguards provided by or under the constitution or any law for the protection of Human Rights and recommend measures for their effective implementation.
The Commission also reviews the factors including acts of terrorism, that inhibit the enjoyment of Human Rights and recommends remedial measures.
NHRC also undertakes and promotes research in the field of Human Rights.
If encourages the NGOs working in the field of Human Rights.

Autonomy of the NHRC

Appointment of its numbers for fixed tenure.
The Chairperson and the members is of the commission are appointed by the president on the bass of recommendations of a committee comprising the Prime Minister as the Chairperson, the Speaker of the Lok Sabha, the Home Minister, the leader of the opposition in the Lok Sabha and Rajya Sabha and the Deputy Chairperson of the Rajya Sabha as members.

Domestic Violence Act, 2005

The Protection of Women from Domestic Violence Act, 2005 which is popularly known as Domestic Violence Act, 2005 was enacted by the Parliament on 13th September 2005 and came into effect on 26th October 2006. It is a comprehensive Act which is primarily meant to provide protection to the wife or female live-in partner from violence at the hands of the husband or male live-in partner or his relatives.
DOMESTIC VIOLENCE ACT, 2005

The protection of women from Domestic Violence Act, 2005.
Enacted by Parliament on 13th September, 2005.
Come into effect on 26th October, 2006.
It intends to provide protection to the wife or female live-in partner from violence at the hands of the husbands or male live-in partner or his relatives.
It also extends its protection to women who are sisters, widows or mothers.
Child abuse is also included in it.
Harrassment by way of dowry demand is included under it as an offence.
Act provides for the appointment of protection officers by the Government to help the victims.
Puishment of one years maximum imprisonment and Twnety thousand rupees each or both to the offenders is mentioned
The Domestic Violence Act, 2005 is to extend its protection to women who are sisters, widows or mothers.
Domestic violence under the Domestic Violence Act 2005, includes actual abuse or the threat of abuse whether physical, sexual, verbal, emotional or economical.
Harassment by way of unlawful dowry demands to the women or her relatives would also be covered under this act as an offence.

Main features of the Domestic Violence Act, 2005

Domestic Violence Act, 2005 widens the scope of the term women and also violence or abuse to them. The Act now covers women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguineous marriage or a relationship in the nature of marriage, or adoption in addition relation-ship with family members living together as a joint family are also included. Sisters, widows, mothers, single women or living with the abuser are entitled to get legal protection under this Act.
The Definition of Domestic Violence has been modified under this Act and it includes actual abuse or the threat of abuse that is physical, sexual, verbal, emotional and economic and further harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.
Right to Secure Housing is one of the most important features of the Domestic Violence Act, 2005. The Act provides for the woman’s right to reside in the matrimonial or shared household, whether or not she has any title or rights in the household. This right is secured by a residence order, which is passed by a court.
Under the Act, court can pass protection orders that prevent the abuser from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the abused, attempting to communicate with the abused, isolating any assets used by both the parties and causing violence to the abused, her relatives and others who provide her assistance from the domestic violence.
Domestic Violence Act, 2005, provides for appointment of protection officers and NGOs to provide assistance to the woman for medical examina tion, legal aid and safe Shelter.
Domestic Violence Act, 2005, provides for breach of protection order or interim protection order by the respondent as a cognisable and non-bailable offence punishable with imprisonment for a term which may extend to one year or with fine which may extend to twenty thousand rupees or with both. Non-compliance or discharge of duties by the protection officer is also sought to be made an offence under the Act with similar punishment.
Domestic Violence Act, 2005 has covered the legal loophole in the Justice delivery system for women in India, presently, where a woman is subjected to cruelty by her husband or his relatives. It is an offence under Section 498A of the IPC. The civil law does not, however address this issue in its entirety. Therefore, it was necessary to enact a law, keeping in view the rights guaranteed under articles 14, 15 and 21 in the Constitution of India to provide for a remedy under the Civil Law, which is intended to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. This Act is an important step in that direction.

Right to Information Act, 2005

Right to Information Act is a revolutionary step in the direction of making the system of governance and administration transparent and accountable to the people in India.

RTI Act, 2005, was passed by the Parliament on 15th June 2005.
The Parliament repealed the Freedom of Information Act, 2002.
RTI Act, 2005, came into force on October 12, 2005.
Right to Information Act 2005, is to extend to whole of India except the State of Jammu & Kashmir.

Composition of CIC

Central Chief Information Commissioner - Shri Satyananda Mishra.
Central Information Commissioners - Annapurna Dixit, Shailesh Gandhi, M.L. Sharma, Mrs. Deepak Sandhu, Mrs. Sushma Singh
Chief Information Commissioner.
Central Information Commissioners as required, but, should not be more than 10.
RTI, confers upon the citizens of India the legal right to seek any information regarding public work public record, documents, memos, contracts, reports, data and any other matter of public importance from the public authority within prescribed time limit through the stipulated procedure of depositing specified amount of fee and writing application to the appropriate authority.
Public authority means any body or institution of self-government established or constituted by or under the Constitution, by any other law made by the Parliament, by any other law made by State Legislature, any body setup by the government by notification and any NGO substantially owned or financed by the government.
The public authorities are required to appoint Public Information Officers to provide Informatioin to the people within 30 days of submission of application.
Information on certain matters and from certain agencies are being excluded from the purview of RTI, these are as follows -

Information regarding ‘File notings’.
Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interest of the state, in relation with any foreign state.
Information from Securities and Intelligence agencies, infomation regarding privelege of Parliament and Legislative Assemblies, information which has been expressly forbidden to be published by any Court of Law or tribunal or the disclosure of which may constitute contempt of court.

Central Information Commission

Right to Information Act, 2005, provides that the Central Government is to constitute a body to be known as the Central Information Commission to exercise the powers on it and to perform the function mentioned under this Act.
The headquarters of the CIC, is to be at Delhi and CIC may, with the previous approval of the Central Government, establish offices at other places.

Appointment
The Chief Information Commissioner and Information Commissioners are to be appointed by the President of India on the recommendation of a committee consisting of -

The Prime Minister, who is to be the Chairman of the Committee.
The leader of opposition in Lok Sabha.
A Union Cabinet Minister to be nominated by the Prime Minister.

Qualification, Term of Office and Condition of Service

The Chief Information Commissioner and Information Commissioners are to be persons of eminence in public life with wide knowledge and experience in Law, Science and Technology, Social Service, Management, Journalism, Mass Media or Administration and Governance.
The CIC and ICs should not be a Member of Parliament or Member of the Legislative of any State or UT, as the case may be, or hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession.
The Chief Information Commissioner is to hold office for a term of five years or upto 65 years from the date on which he enters upon his office and is not to be eligible for reappointment.
Every Information Commissioner is to hold office for a term of five years from the date on which he enters upon his office or till he attains the age of sixty-five years, whichever is earlier and not to be eligible for reappointment as such Information Com-missioner though he could be Chief Information Commissioner.
The CIC and ICs before entering upon their offices are to make and subscribe before the President an oath or affirmation according to the form set up in the Act.
The Chief Information Commissioner and Information Commissioners may at any time, by writing under his hand addressed to the President, resign from his office. Besides, the Chief Information Com-missioner or an Information Commissioner may be removed in the manner specified under the Act.

The salaries and allowances payable to and other terms and conditioins of service of –

The Chief Information Commissioner is to be the same as that of the Chief Election Commissioner.
The Information Commissioner is to be the same as that of an Election Commissioner.

State Information Commissions

The Right to Information Act, 2005, mentions that every State Government is to constitute a body to be known as the Information Commission to exercise the powers conferred on, and to perform the functions as-signed to it under the RTI Act.
Appointment
The State Chief Information Commissioner and the State Information Commissioners are to be appointed by the Governor on the recommendation of a committee consisting of -
Composition

The State Chief Information Commissioiner.
The State Information Commissioners who should not be more than 10 number.
Headquarter of State Information Commission is to be at such place in the State which the State Government may specify or the State Information Commission may with the previous approval of the State Government establish offices at other places in state

The Chief Minister, who shall be the chairperson of the committee.
The leader of Opposition in the Legislative Assembly.
A Cabinet Minister to be nominated by the Chief Minister.

The State Chief Information Commissioner is to supervise and manage the affairs of the State Information Commission and is to be assisted by the State Information Commissioners.
Qualification and Terms of office and Conditions of service

The State Chief Information Commissioner and the State Information Commissioners are to be persons of eminence in public life with wide knowledge and experience in Law, Science and Technology, Social Service, Management, Journalism, Mass Media or Administration and Governance.
The State Chief Information Commissioner or a State Information Commissioner are not to be a member of Parliament or member of State Legislative Assembly of any State or UT of hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession.
The State Chief Information Commissioner and Information Commissioners are to hold office for five years or upto 65 years of age.
The State Chief Information Commissioner and State Information Commissioner are required to take oath before the Governor of the State.
The salaries and allowances payable to and other terms and conditions of service of the State Chief Information Commissioner is to be same as that of an Election Commissioner and of the State Information Commissioners same as that of the Chief Secretary to the State Government.
The State Chief Information Commissioner or a State Information Commissioner may resign from his office by writing under his address to the Governor and can be removed from his office by the order of the Governor on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the Governor has on inquiry, reported that the grounds are valid.

Powers and Functions of the Information Commissions

The Central Information Commission or State Information Commission are empowered to receive and inquire into a complaint from any person who could not get information from any public authority due to the reason of no appointment of PIO in that organisation.
If the made request by any person for Information has been turned down by the public authority.
If the information seeker could not get information within the time limit specified under RTI.
If the demanded fee by the public authority for providing information is unreasonably high.
If the information seeker thinks that he or she has been given incomplete, misleading or false information.

In respect of any other matter relating to requesting or obtainng access to records under this Act.
The Central Public Information Officer or the State Public Information Officer as the case may be is to be provided a reasonable opportunity of being heard before any penalty is imposed on him.
Burden of proving shall be upon the Information Officers.
No suit is to be laid against any person for anything done in good faith.
The provision of this Act are to have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923.
The Right to Information Act has been continously used by the active and aware member of Civil Society to expose corrupt practices in the administration and misappropriation of funds sanctioned for the execution of public welfare schemes.
Mrs. Aruna Roy, a social activist and winner of Magsaysay Award is actively associated with the task of popularising Right to Information Act among the common people of the country.
Arvind Kejriwal, won the Magaseysay Award for popularising Right to Information Act among the masses.

General Studies

Saturday, October 26, 2013

Indian Constitution