Purpose and functions of a Constitution:

 • Lays out certain ideals that form the basis of the kind of country that we as citizens aspire to live in.
• Defines the nature of a country’s political system; plays a crucial role in laying out certain important guidelines that govern decision-making within these societies.
• Provides a set of basic rules that allow for minimal coordination amongst members of a society.
• Provides safeguards against the leaders who might misuse their authority—sets some limits on what a government can impose on its citizens. These limits are fundamental in the sense that government may never trespass them.
• Constitution saves us from ourselves (This may sound strange but what is meant by this is that we might at times feel strongly about an issue that might go against our larger interests and the Constitution helps us guard against this.)
• It helps to protect us against certain decisions that we might take that could have an adverse effect on the larger principles that the country believes in. Therefore, the constitution sets authoritative constraints upon what one may or may not do.
• Enables the government to fulfill the aspirations of a society and create conditions for a just society.
• Constitution expresses the fundamental identity of a people.
• Protects minorities from tyranny of the majority (i.e. from inter-community and intra-
community domination)

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Right against Exploitation 

Right against Exploitation

Art 23: Forced labor/ Traffic 

  • No forced labor – slavery – servitude
  • No trafficking
  • State can force for public interest
  • conscription
  • punishable

Art 24: Child labor 

  • Punishable
  • < 14 – no hazardous and non hazardous regulated by state
  • The government had brought a new law to govern child labour, known as the Child Labour (Prohibition and Regulation) Amendment Act, 2016, which put a blanket ban on employment of children below 14 years of age. However, it had made two exceptions in favour of child labour: children could work as child artistes (in the entertainment sector), and could “help” in their family enterprises.
  • New bill – ban until 14 yrs except family enterprise (shouldn’t be hazardous) and entertainment industry, that too after school hours and on vacations only. And 18 yrs ban for hazardous
  • Child welfare fund

Right to Freedom 

Right to Freedom

Art 19(1) – Democratic rights

  1. Speech and expression 
  • Art 19(1)(a) and Art 21 – inalienable disjunct
  • Express your view, right to listen, any communicable medium
  • Express others view
  • Right to know
  • Press freedom
  • Elect/reject candidate based on informed choices
  • Dissent – criticize govt
  • ITA 2000 – Sec 66A – chilling effect
  • Defamation – criminal and civil offense
    • Restrictions
      1. Security of state,
      2. sovereignty and integrity of India
      3. Relations with a foreign country
      4. Public order
      5. Morality And Decency
      6. Contempt of court
      7. Defamation

 

  1. Assemble
  • Corollary of 19(1)(a)
  • Assemble anywhere without arms – meeting and procession
  1. Association
  • Form association, cooperatives, union
  • Not avail to military, armed forces
  • Strike is illegal, but not hartal
  1. Movement
  • Whenever, wherever , however
  1. Settle/reside
  • Settle anywhere within country
  • Strengthen unity and territorial integrity and promote fraternity
  • ILPS for NE states – Arunachal Pradesh, Mizoram and Nagaland
  1. Property – repealed
  2. Occupation
  • Practice any occupation but with qualification
  • State can take over for public interest
  • Complementary of Art 301 – to anyone – co operative federalism

 

Art 20: Conviction for offense 

  • Ex post facto
    • No retrospective
    • Only for criminal and not for civil and tax
  • Double jeopardy
    • Only to criminal courts and tribunals and not to civil and exe
    • No punishing twice
    • Cri + civil – two diff punishments
  • Self incrimination
    • No compulsion of self evidence to police
    • Voluntary confession ok to judiciary
    • Specimens can be forced – doesn’t make difference
    • No lie detector, violates privacy

Art 21: Life 

  • Fundamental of all FR
  • Live with dignity
  • Principles of natural justice – basic str, eliminate arbitrariness, fairness
  • Procedure established with law
    • Available only against arbitrary action of exe and not legislative
  • Due process of law (American const)
    • Arbitrary action of both exe and legislature
  • Suicide is criminal offense  – decriminalized (mental health care bill)
  • Die with dignity
  • Euthanasia – passive and active – voluntary, involuntary, non voluntary
    • Passive – prolong life
    • Active – end life
    • Aruna Shanbaug case vs UOI 2014
    • Passive legal with court’s authority
    • Active illegal
  • Advance consent to practise euthanasia
  • Santhara

Art 21A : Education 

  • 6 to 14yrs – free and compulsory edu by state

Criticism:

  • Right to schooling but not RTE
  • Centre State uncertain over financial responsibility
  • Perf based evaluation – teachers not trained and skilled
  • Auto promotion to next std

Art 22: Protection against Detention 

  • Punitive
    • Know grounds
    • Official record
    • No suspicion detention
    • Access to legal dept
    • Court within 24 hrs
    • Not detain any more time than sentenced
  • Preventive
    • 3 months max
    • Need permission for further
  • Under trials
    • Fast track courts
    • Mitigation
    • Grant bail if half term over already

Right to Freedom of religion

Right to Freedom of religion

Art 25:  P3 -Profess,Practice,Propagate

  • Conscience – inner freedom
  • Profess -declare openly
  • Practice – rituals and use signs
  • Propagate – spread but not force
  • Opinion & belief – no state interference
  • Conduct & practice – state can

Art 26: Religious denomination 

  • Est. institutions for religion and charity
  • Manage its affairs
  • Right to property
  • Administer its property
  • State can take over with compensation

 Art 27: Taxation for religion 

  • No collecting tax to promote religion
  • Fees is ok to provide service like safety
  • State is neither religious nor irreligious nor anti religious  but is non religious
  • Sarva Dharma Sambhav
  • Equidistant from all religion
  • West – don’t patronize
  • India – patronize without discrimination

Art 28: Religious instruction 

  • Religious instruction in schools
  • State wholly owned – strictly no
  • State administered but est. by religious denomination – permitted
  • State recognized – optional
  • State sponsored – optional

Right to equality  

Right to equality  

Art 14 : Law 

  • Equal before law  
    • Negative
    • English const
    • Absence of any privileges
    • Law is supreme authority – govt subjected to law
    • Art 361 (exception for president and governor)
    • Dicey
      • No punishment unless law violated
      • Every one equal before law without discrimination
      • Law is the superior – const is superior in India
    • From Rex Lex to Lex Rex
  • Equal protection of law 
    • Positive
    • American const
    • Equitable treatment
    • reservation to push backward ppl up
    • Treat likes alike, alikes not to be treated like

 

Art 15: Discrimination 

  • No discrimination on the grounds of RRSCP
  • Equal access to public places
  • Women and children exception – reservation for Women
  • Spc provision for edu and soc backward – SC ST
  • Reservation for BC – edu
  • Transgender rights reserved

Art 16: Employment Opportunity 

  • Equal opportunity in public employment
  • No discrimination on RRSCP + descents + residence
  • Exception for residence and descendants discrimination in some cases
  • Vertical reservation
    • Max reservation to be 50%
    • Additional reservation extended to women, military, sports etc..
  • Horizontal reservation
    • Reservation within reservation
  • Reservation to be state discretion – enabling clause
  • Indra Swahney VS UOI 1992
  • Carry forward policy for SC ST

Art 17: Untouchability 

  • Removed
  • Punishable
  • Renamed to Civil rights Act
  • Read about SC ST atrocities act

Art 18: Titles and rewards 

  • Except awards and edu degrees, nothing to be displayed

Cultural and Educational Rights 

Cultural and Educational Rights

Art 29: Minorities interest 

  • Protect identity
  • Unity in diversity
  • Majority and minority
  • State can’t deny admission in edu on grounds of religion, race, caste or language

 Art 30: Minority education 

  • Linguistics and religious minorities
  • Can have schools of their own – state and ntl recognition
  • BC not part of minority
  • Right to property – state can take over with compensation
  • No reservation for BC
  • Can have own admission process – transparent – no capitation
  • Art 350(A) – teach in mother tongue
  • Art 350(B) – President shall appoint a officer to protect & promote minority

Everything about Ordinance

What is an ordinance and who makes it?

  • Article 123 of the Indian Constitution grants the President of India to Promulgate Ordinances when either of the two Houses of the Parliament is not in session which makes it impossible for a single House to pass and enact a law.
  • Ordinances may relate to any subject that the parliament has the power to make law, and would be having same limitations.

When an ordinance can be issued?

  • When legislature is not in session.
  • When immediate action is needed: Here the Supreme Court has clarified that the legislative power to issue ordinances is ‘in the nature of an emergency power’ given to the executive only ‘to meet an emergent situation’.

How parliament exercises control over ordinance making power of President? 

  • The constitution provides two parliamentary checks vis-a-vis the promulgation of ordinance [Art 123(2) (a)]:
  • The power of parliament to pass resolutions disapproving the provisions of the ordinance.
  • The automatic expiry of the ordinance within six weeks of the reassembly of the houses of the parliament unless passed by the parliament; this gives a chance for the parliament to debate on the ordinance and review it accordingly.

Ordinance making powers of the Governor

  • Just as the President of India is constitutionally mandated to issue Ordinances under Article 123, the Governor of a state can issue Ordinances under Article 213, when the state legislative assembly (or either of the two Houses in states with bicameral legislatures) is not in session.
  • The powers of the President and the Governor are broadly comparable with respect to Ordinance making.
  • However, the Governor cannot issue an Ordinance without instructions from the President in certain cases where the assent of the President would have been required to pass a similar Bill.

Key debates relating to the Ordinance making powers of the Executive.

  • There has been significant debate surrounding the Ordinance making power of the President (and Governor).
  • Constitutionally, important issues that have been raised include:
  • Judicial review of the Ordinance making powers of the executive;
  • The necessity for ‘immediate action’ while promulgating an Ordinance;
  • And the granting of Ordinance making powers to the executive, given the principle of separation of powers.

Important Cases:

  • In 1970, RC Cooper vs.Union of India Case the Supreme Court, held that the President’s decision on Ordinance could be challenged on the grounds that ‘immediate action’ was not required; and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.
  • In 1980, AK Roy vs.Union of India case the Court argued that the President’s Ordinance making power is not beyond the scope of judicial review.