Fundamental Rights

17
Feb

Freedom of the press through theory and practice

   Written By: Laza Florina

Freedom of the press is the right to issue opinions and present facts through various methods such as printed materials, televisions or online media without censorship or interference from outside entities. This gives journalists the exclusive right to exercise control over choosing what to publish or print and, also, refuse to do so if they see it appropriate. However, this does not mean press freedom has complete prevalence over other conflicting interests, being subject to restrictions through constitutional or other legal provisions for reasons of sovereignty or independence, data protection, right to privacy, reputation, criminal justice, etc.

    Freedom of press protects printed publications, televisions, online editions of traditional media, internet journalistic publications, but does not protect non-professional journalistic activities, such as blogs, social media, etc.; in any case, those freelance activities are protected by freedom of expression and information.

    In reality, freedom of expression joined by freedom of information and freedom of the press are the fundamental pillars of a true democracy. They are all connected through an invisible thread and they all depend on each other to produce valuable judgments over new events, changes, and social trends because only a collective of free opinions can lead to further social and political development. Journalists are obliged by work ethics and legal provisions to provide impartial and accurate information to its audience no matter the change in political power, social or economic interests.

    The United Nations’ 1948 Universal Declaration of Human Rights, the milestone document in the history of human rights which applies directly to all state parties emphasizes in article 19 the following: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.

    Also, the pluralism of press should be a requirement for any country of the world and, also, guaranteed by governments and press providers. No one should interfere in anyone’s rightful liberty to exercise its freedoms freely. Press pluralism leads to a landscape of diversity in political, social and economic views, thus creating the possibility of forming public opinion and allowing people to make informed choices regarding their political decisions.

    Unfortunately, many people still live in countries where there is no system of democracy or any efficient democratic process, and for those countries, press freedom has become an unreachable fantasy. In a dictatorship, media has no power or right to express itself freely and it`s unfortunate to live in a world still filled with abuses and violations over fundamental rights even to this day in the 21st Century.

    A non-governmental organization called Reporters Without Borders releases a report every year, called World Press Freedom Index, regarding different levels of press freedom on the globe. In 2017, among the countries with least degree of press freedom were North Korea, Eritrea, Turkmenistan, Syria, China, Vietnam, and Sudan. And the countries were press was the freest were Finland, Netherlands, Norway, Denmark, New Zealand, Costa Rica, Switzerland, Sweden, Ireland, and Jamaica.

    North Korea is ranked as having the smallest level of freedom and editorial independence in 2017, mostly because of Kim Jong-un’s totalitarian regime which continues to keep its citizens in a state of ignorance and fear of being sent to the concentration camps for listening to foreign press sources which are prohibited by law.

    Eritrea occupies the penultimate place as a result of being a dictatorship state controlled by President Issayas Afeworki’s political interests and plans. At least 11 journalists are detained without being charged for the lack of obedience. He stated in an interview in 2014 that “those who think there will be a democracy in this country can think so in another world”.

    Turkmenistan, a unitary presidential republic under a highly authoritarian state, remains one of the world’s most repressive countries. The country is subject to draconian restrictions on most of the fundamental liberties and rights of its citizens. It was reported that several journalists have been arrested, tortured, or physically attacked in recent years and the authorities are continuing a campaign of removing satellite dishes, depriving the population of one of the remaining ways to access uncontrolled news coverage.

    Syria had never known the concept of freedom of the press and with the country’s current situation; journalists are caught between the strict regime of the country and the other armed opposition groups such as the Jihadi fighters and the Kurds. In the last decades, the country’s press has been characterized by its constant intimidations, arrests, abductions, and murders of media representatives.

    China was named the world’s leading prison for citizen journalists, having the largest recorded number of incarcerated journalists and bloggers in the world including well-known apprised journalists and RSF Press Freedom laureates. The country has a long road to come in order to establish the right environment for media pluralism and freedom of expression considering the extreme censorship in China.

     Within the European Union borders, press freedom is a fundamental right established both in the EU Charter of Fundamental Rights through Article 11 subclause 2: ”The freedom and pluralism of the media shall be respected” and, also, in the European Convention on Human Rights in Article 10 through a resembling provision.

    In Europe, Ukraine is one of the most dangerous countries to work as a reporter. This profession is seen as a brave activity far away from being a simple work job. As a matter of fact, since the independence of the country more than 20 journalists have been killed. One of the most notable cases is the one of the abduction and murder of Georgiy Gongadze, founder of a popular Internet newspaper Ukrayinska Pravda which means the ”truth of Ukraine”, in 2000. His dead body was found two months later in a forest bearing a horrifying appearance because his body was decapitated and doused in dioxin while the victim was still alive. Two years ago at the 15th anniversary of his death, the Ukrainian people created a beautiful display of candles and placards at the Independence Square in Kiev in the memory of a devoted and true-hearted journalist, one that proved how a strong and independent man can make a difference even after his death.

    India, the world’s largest democracy, while not mentioning the word ”press” in its Constitution, talks about the “freedom of expression and the freedom of speech” in Article 19 a): ”All citizens shall have the right to freedom of speech and expression”. However, this right is subject to restrictions such as sovereignty and independence of the state; the security of the state; friendly relations with foreign countries, public order; preserving morality; in relation to contempt; court; defamation, or incitement to an offense.

    It was reported that prominent political figures and business conglomerates are making underhanded investments in news media in order to gain more influence and popularity. Actually, paid news has become a widespread phenomenon and a vital weapon in political games. When reportages are mostly made to fit the interests of politicians and corporate entities, the citizens are the ones who suffer because they lose their right to be informed correctly and make fair choices.

    In many democracies, politicians and businessman are prohibited to hold news media broadcasting and publishing rights, but unfortunately, this is not the case for the Indian press. Examples on this matter start with India’s biggest TV network, CNN-IBN who’s directly controlled by one of the richest men of the world, Mukesh Ambani, the chairman of Reliance Industries Limited (RIL) a 100 billion dollars asset. Also, Ambien’s brother owns Reliance Big Broadcasting and has stakes in numerous publications and TV channels. Other televisions such as NDTV and India Today have corporate investments which are significantly influenced by political preferences and last but not least News 24 is owned by Anurradha Prasad, the wife of the opposition Congress Party leader Rajeev Shukla.

    Journalists are even free to start their own political careers while using their statute as a press representative to express their support for the political party that they desire and there are no regulations to prevent others from using the press as a political tool in controlling public’s opinion. Also, there is no mechanism to protect the journalists if they attempt to expose corruption. Moreover, they are openly prosecuted and intimidated to reflect other political or financial aspirations.

    When had the press become a platform for different influent political figures to achieve their political agenda? Is this freedom slowly deteriorating for the sake of ruling parties, business tycoons, and other organizations’ interests? Now there are more televisions, newspapers and online news publications, but not as many voices willing to sacrifice and speak out about the unfairness and the injustices of the system.

    Printed press, television, and radio, online news publications are all contributing equally to protect the democratic values of a society. Journalists may not realize it, but with each editorial, they are writing history which is why they have to present the facts from the most objective point of view. Also, no interference should be allowed from outside entities. All these precautions are necessary because the things that leaders say or do no matter right or wrong, they influence people to act as they are told. They have a greater responsibility, but most of them take this responsibility for granted and no matter the consequences, they use their influence in order to hold the power tighter, tighter than any other world leader did before them… because “who controls the past controls the future” and “who controls the present controls the past” as it was stated in the dystopian political book “1984” by George Orwell.

26
Sep

10 Constitutional Landmark Judgement

Disha Dheeman, BA LL.B(H), Legal News Reporter

 

Landmark judicial decision changed the constitutional as well as everyday life. Their impact still replicate.

1)FUNDAMENTAL RIGHT CASE

                                             Keshvanand Bharti v. State of Kerala

                                            AIR 1973 SC 1461: (1973) 4 SCC 255

                                                  Date of decision: 24-04-1973

In this case, the constitutional validity 24th Amendment Act 1971 was challenged. 24th Amendment was enacted by the Parliament which amended Article 368 that Parliament has constituent power to amend by way of addition, variation or repeal any provision under the article of the constitution in which Article 13 would not be applicable to such amendment.

The validity of the 24th Amendment on which the validity of the 25th, 26th and 29th Amendment would depend, and this was the principle issue.

This case was decided by 13 judges bench including S.M Sikri, C.J, and A.N Grover, A.N ray, H.R. Khanna, D.G Palekar, J.M Shelat, K.S Hegde, S.N. Dwivdei, M.H. Beg, F. Jagamohan Reddy and Y.V Chandrachud that Parliament cannot destroy the basic features of the Constitution. The majority opinion of the judges was that no part of the Constitution (Fundamental Rights), was beyond the Amending power of the Constitution, basic structure of the Constitution cannot be infringed.

2)ELECTION CASE

                                                   Indira Gandhi v. Raj Narain

                                             AIR 1975 SC 22299: (1975) SCC 1:

                                                 Date of Decision: 07-11-1975

In the case of Indira Gandhi, an Appeal was filed by an appellant against the decision of the Allahabad High Court in which Mrs. Gandhi’s election held invalidating on the corrupt practices ground.

The principle issue was the question involved of the validity of clause 4 of the Constitution 39th Amendment Act, 1975.

5 Judges bench including A.N. Ray, C.J and H.R. Khanna, K.K Mathew, M.H Beg and Y.V Chandrachud held that clause 4 of the Constitution 39th Amendment Act,1975 is void and unconstitutional because exclusion of the Judicial review in the election disputes can affect the basic structure of the Constitution. Court struck down the clause as it was violating the free and fair elections.

3)ADMISSIONS ON CASTE BASIS FOR PROFESSIONAL COURSE

                             

                          State of Madras v. Champakam Dorairajan

                             AIR 1951 SC 226 (1951) 2 SCR 525

                                    Date of Decision: 09-04-1951   

Champakam Dorairajan made an application to the High Court at Madras under Article 226 of the Indian Constitution for protection of the fundamental rights under Article 15(1) and Article 29(2) and requested to issue the writ of mandamus or any other suitable writ. State of Madras and officers observed that admissions into the Madras Medical Colleges were sought that it involves the violation of her fundamental rights when she came to know that her admission would not be possible as she belongs to the Brahmin community.

It was argued that violation of Article 15(1) and 29(2) is violation of her fundamental rights of the Indian Constitution.

This case was held by Harilal Kania, C.J and S.Fazal Ali, Patanjali Sastri, M.C Mahajan, B.K Mukherjea, S.R das and Vivin Boes  that refused admissions only on the grounds of religion, race, caste, language or any of them then it is a violation of the fundamental rights. This right is not to be denied on such grounds to any citizens and the provision of Article 29(2) in part 3 of the Constitution is void under Article 13.

4)BASIC STRUCTURE OF THE CONSTITUTION CANNOT BE AMEND BY PARLIAMENT

                                       Golakhnath v. State of Punjab

                                AIR 1967 SC 1642: (1967) 2 SCR 762

                                      Date of Decision: 17-02-1967

In this case, issues were whether power to amend the Constitution resides under Article 368?   whether the F.R in part 3 can be amended or not?

This was held by K. Subha Rao, C.J. and C.A. Vaidialingam, G.K. Mitler, J.C Shah, J.M Shelat, K.N. Wanchoo, M.Hidayatullah, S.M. Sikri, V.Bhargava, R.S. Bachawat and V.Ramaswami that fundamental rights cannot be infringed or taken away by the amending procedure in Article 368 of Indian Constitution. Changes to the constitution is law within the meaning of Art 13(2) of the Constitution and therefore it is subject to the part 3 of Constitution. Amendment under Art 368 or any other provision of the Constitution are only made by the; Parliament.

5) TAKEOVER BY A MILL BY THE CENTRAL GOVERNMENT

                                                  Minerva mills ltd. V. Union of India

                                                 AIR 1980 SC 1789: (1980) 3 SCC 625

                                                       Date of Decision: 31-07-1980    

The Constitutional validity of 39th and 42nd Amendment was challenged by the petitioner. He also challenged sec 4 and sec 55 of 42nd Amendment Act of 1976 and the validity of Article 368(4) and Art 368(5) of the Constitution.

It was held by the judges: Y.V Chandrachud, C.J. and A.C Gupta, N.L Untwalia, P.N. Bhagwati, and P.S Kailasam, that sec 55 of the Constitution 42nd Amendment Act is beyond the amending power of the parliament, is void if it destroys or damage the basic structure of the Indian Constitution. Article 31(C) held unconstitutional as it destroys the basic and essential features of the Constitution. Article 368(4) and Art 368(5) are also held unconstitutional in that it removes all limitations on the amending power of the parliament.

Sec 55 and sec 4 of the Constitution 42nd amendment Act are held as void and unconstitutional. Art 31C and Art 368(4) and (5) are also held as unconstitutional and void.

6) ILLEGAL DETENTION FOR 14 YRS. AFTER ACQUITTAL BY THE COURT

                                             Rahul Sah v. State of Bihar

                                       AIR 1983 SC 1086: 1983 Cri Lj 1614

                                            Date of Decision: 01-08-1983

The principle issue of this case was whether S.C under Art 32, can pass an order of compensation for infringement of fundamental right by officers or not?

Art 32 of the Constitution confers the power on the S.C to issue directions or orders or writs, whichever may be appropriate for the enforcement of any rights conferred by part 3. It was held by Y.V Chandrachud, C.J. and Ranganath Mishra and Amarendra Nath Sen that Supreme Court can pass an order of compensation for the infringement of fundamental rights under art 32 of the Constitution if such an order is the nature of compensation consequential upon the deprivation of a fundamental rights.

7) SEXUAL HARASSMENT OF WOMEN AT WORKPLACE

                                                   Vishakha v. State of Rajasthan

                                                    AIR 1997 SC 3011: 1997 (5)

                                                    Date of Decision: 13-08-1997

NGOs and other social activists filed writ petition in the Supreme Court for the enforcement of the fundamental rights of working women under Art 14,19 and 21 of the Constitution of India. The issue was Sexual Harassment of working women at workplace.

Judgement of this case was given by J.S. Verma and Mrs. Sujata V. Manohar and B.N. Kripal, it was held that it is violation of the fundamental rights of ‘Right to Life and Liberty’ and ‘Gender Equality’ if there is sexual harassment of women at workplace. It is the violation of Art 14,15,19(1)(g) and 21 of the Constitution.

8)  CONSTITUTIONAL VALIDITY OF DEATH SENTENCE

                                                      Bachan Singh vs. State of Punjab

                                                         AIR 1980 SC 898: 1982 (1)

                                                        Date of Decision: 09-05-1980

In this case Bachan Singh was appellant who was tried and convicted to death sentence under sec-302 of Indian Penal Code, by Session Judge. His death sentence confirmed by High Court and dismissed his appeal, then he goes through the special leave appeal to the Supreme Court.

The principle issue of this case was to check the constitution validity of death sentence for murder provided in section 302 IPC.

It was held by Y.V Chandrachud, C.J. and A.C. Gupta, N.L. Untwalia, P.N. Bhagwati and R.S Sarkaria, that sec 302 of the Indian Penal Code yet provides for the death sentence as Section 354(3) of Code of Criminal Procedure, 1973 is constitutionally valid.

Challenge to the constitutionality of the questioned provisions mentioned in Section 302 of Indian Penal Code and Sec 354(3) of the Criminal Procedure Code, 1973 is excluded.

9) RIGHT TO PRIVACY

                                Justice K.S Puttaswami and Anr. v. Union of India and Ors.

                                         WRIT PETITION (CIVIL) NO 494 OF 2012          

                                                     Date of Decision: 24-08-2017

In this case, nine judges bench assembled to determine whether privacy is a constitutionally protected value.

 Justice D.Y Chandrachud overruled the judgement of Justice Y.V Chandrachud and held that Right to Privacy is Fundamental right under Article 21 of the Constitution. The decision in M.P Sharma is over ruled, which says that right to privacy is not protected by the Constitution. The decision in Kharak Singh stands over ruled to the extent that right to life and personal liberty is not protected by the Constitution.

This is a landmark case by the Supreme Court of India that right to privacy is protected under Art 21 of part 3 of the Constitution, but not an absolute right and there are some restrictions in matters of national security and mutual interest of the citizens and the state.

 

10) TRIPLE TALAQ UNCONSTITUTIONAL

                                          Shayara Bano vs union of India and Ors

                                               Writ petition (C) No 118 of 2016     

                                               Date of Decision: 22 August 2017

Issue of this case was that certain practices of Muslim Personal laws such as Triple Talaq, Polygamy and Nikah halala has been challenged. The All India Muslim Personal Law Board (AIMPLB) has warned secular authorities against interfering with religious laws.

A 5 judges Constitution bench including chief Justice J.S Khekhar, Justice Kurian Joseph, Justice Rohinton Nariman, Justice Uday Lalit and Justice Abdul Nazeer deal with the Constitutional validity of the Practice of ‘Instant triple talaq’ or ‘talaq-e-biddat’ held that triple talaq cannot be justified or given legal validity. The practice of triple talaq is discriminatory in many ways.

Supreme Court says that only those features of a religion are constitutionally protected which are “integral” or “essential” parts of it. There is no evidence to show that talaq e biddat constitutes an integral part of the Islamic faith and it does not deserve constitutional protection.

10
Sep

Transgender and their Personal Law

KAMALJIT KAUR, B.Com LL.B. Lovely Professional University, Phagwara Punjab

Introduction

Transgender people are those individuals who are of any age or sex and whose appearance, personal characteristics, or behaviors differ from stereotypes about how men and women are supposed to be. This term is used to describe a wide range of identities including but not limited to transsexual people; male and female cross-dressers; inter-sexed individuals; and men and women, regardless of sexual orientation, whose appearance or characteristics are perceived to be gender atypical. In India there are a socio – cultural groups of transgender people like hijras/ kinnars.

Overview

Transgender Rights and Personal Laws

[1]The first and foremost right that transgender deserves –

(1) The right to equality under Article 14.

(2) Article 15 speaks about the prohibition of discrimination on the ground of religion, race, caste, sex or place of birth.

(3) Article 21 ensures right to life and personal dignity to all the citizens.

(4) Article 23 prohibits trafficking in human beings as beggars and other similar forms of forced labor.

The Constitution of India provides for the fundamental right to equality, and tolerates no discrimination on the grounds of sex, caste, creed or religion. The Constitution also guarantees political rights and other benefits to every citizen. But the third community transgender continues to be boycott. The Indian state’s policy of recognizing only two sexes and refusing to recognize hijras as women, or as a third sex has deprived them at a stroke of several rights that Indian citizens take for granted. These rights include the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver’s license, the right to education, employment, health so on.

[2]Transgender Rights:-

Firstly, the Court ruled that fundamental rights are available to the third gender in the same manner as they are to males and females. Further, non-recognition of third gender in both criminal and civil statutes such as those relating to marriage, adoption, divorce, etc is discriminatory to the third gender.

Secondly, the Court states that they prefer to follow the psyche of the person and use the ‘Psychological Test’ as opposed to the ‘Biological Test’. They also declare that insisting on Sex Reassignment Surgery (SRS) as a condition for changing one’s gender is illegal.

Thirdly, the court states that the Centre and State Governments have been directed to take proper measures to provide medical care to Transgender people in the hospitals. Further, they have been directed to operate separate HIV/ Sero-surveillance measures for Transgenders.

Lastly, the Centre and State Governments have been directed to provide the Transgender community various social welfare schemes and to treat this community as socially and economically backward classes. They have also been asked to extend reservation in educational institutions and for public appointments.

Problems being faced by the Transgender

The main problems that are being faced by the transgender community are:-

(1)The first problem which has being faced by Transgender is Discrimination, unemployment, lack of educational facilities, homelessness, lack of medical facilities: like HIV care and problems related to marriage and adoption.

 

(2)  The next problem which has being faced by this community is that they feel neglected in inheritance of property or adoption of a child. They are often pushed to the periphery as a social outcaste and many may end up begging and dancing. It all means human trafficking.

(3) Transgenders have very limited employment opportunities. Transgenders have no access to public spaces. Most of the families do not accept if their male child starts behaving in ways that are considered feminine or inappropriate to the expected gender role. Consequently, family members may threaten, scold or even assault their son from behaving like a girl or woman.

 

[3]Transgender Persons (Protection of Rights) Bill 2016

 

The Transgender Persons (Protection of Rights) Bill 2016 is expected to bring a social, educational and economic development to the transgender community. To a community that has been criticized and discriminated for so long, this Bill could mean a chance to live a life of dignity and equality.

This Bill makes it illegal to force a transgender person to leave residence or village, force them into begging or any kind of bonded labour. These acts will be punishable with up to two years of imprisonment, along with a fine.

The Bill also criticized denying a transgender person access to any public place and causing them any physical or mental harm within and outside the home. It guarantees OBC status to all transgender not born as SC or ST, and entitles them to reservation under the respective categories.

.This bill also ensures the right to equality, right to life and dignity and personal liberty as guaranteed by the Constitution of India to the Transgenders. All government institution shall provide inclusive education and shall not discriminate against any transgender student and also provide transgender students with scholarship.

The Transgender Persons (Protection of Rights) Bill aims at ensuring that transgender persons enjoys a life of dignity and equality as an Indian citizen, and guarantees a basic human right that had been denied to them and have been boycotted from society for so long- right to identify as a member of our community.

Conclusion

It has been concluded that the Transgenders should have their personal laws. As like other citizens of India they should also have the right to enjoy the rights guaranteed in Indian constitution. So, that they didn’t feel neglected from the society. The Centre and State Governments should also have to provide the Transgender community various social welfare schemes and to treat this community as socially and economically backward classes. They have also been asked to extend reservation in educational institutions and for public appointments. The problems which has being faced by Transgender is Discrimination, unemployment, lack of educational facilities, homelessness should also have to be solved by the government. At last but not least, the government has to ensure that transgender persons enjoys a life of dignity and equality as an Indian citizen, and guarantees a basic human right that had been denied to them and have been boycotted from society for so long- right to identify as a member of our community.

 

 

 

 

 

[1] The Constitution Of India,1950 (Bare Act)

 

[2] http://iasscore.in/national-issues/transgender-rights-in-india

 

[3] https://www.jaagore.com/articles/simplify/about-the-transgender-bill-2016

 

 

10
Sep

Right to public services: A weapon against corruption in public offices

Tanay Akash, BA LL.B. Central University of South Bihar

Democracy, as defined by ‘Sir Abraham Lincoln’ is the rule “Of the people, by the people and for the people” and India being the largest democracy follows a general principle of ‘Rule of general public’. But today’s era when democracy has turned up to be “Demon-Cracy” and influence of “Money” has made it “Mono-Cracy” the craze of extreme autocracy has enhanced. As ‘Power Corrupts and absolute power corrupts absolutely’ this extreme craze of autocracy has turned the public servants, who are appointed to serve people into the one who treats the public into worst possible way and bribe became a part and parcel, an integral part, the wheel to move files from table to table and if this wheel is not inserted in the vehicle of the work for government office the work can take a completion period of an infinite time.

Due to this slow, troublesome and painful general mechanism which is followed in the public offices has compiled the general public to hate the government offices or places of public services but there came the “Right to Public services Act” which ensured and given the Right to public services to general public.

The right to Public services Act

Public Services literally means that the services related to public and every citizen is entitled to have hassle- free public services and redressal of his grievances. Accordingly, the right to public services helped the states (particular) to frame a structure towards standard, quality and time period of the service delivery, also the transparency and accountability and redressal mechanism for the betterment of general public. In India Right to public services comprises statutory laws to guarantee a time bound delivery of public services such as issuing birth certificates etc. and to give punishment to the public servant who disobeys this statute.

The motto behind the formation of right to public services litigation is just to make a mere effective as well as more responsive relation in between general public and the government officials. India which is rapidly changing into a welfare state offers a wide amount of rights to its citizens and this right to public services move it two step forward and gives a new dimensions of rights provided. Right to public services could be taken as a day to day and in- practical right which gives benefit on such spheres of day to day life which are the part and parcel of one’s living.

These rights are designed to ensure the public to make them aware of and able to claim their rights or entitlements to public services. These are not simply rights but these are commitments to patients, public and staff in the form of rights to which they are entitled, ending the situation of “where to go” and “How to proceed” regarding public services. These rights also aimed to reduce corruption among the government officials and increase transparency and public accountability.

The delivery Mechanism

Right to public services are implemented differently to different states and M.P was the first state to implement this right. At present there are 19 states in which right to public services litigation has been already passed and rights are given to the general public. One more perspective of Right to public services is that it rapidly decreased the rate of exploitation of socially, economically and educationally weaker people, when they tries to owe any public services such as issuing birth certificate, death certificate, income certificate, identity proofs or other certificates such as caste certificate or residential certificates. These rights not only strengthen them but also provides them with the remedies against the irresponsible behaviour of public servants. Several states such as Bihar had for long been treated as India’s centre of in efficient governance, rampant corruption, inefficiency and lack of transparency in conduct of government affairs. This situation was worst in marginalised and remote areas of the state. But after the right to public services litigation, it became a time bound act to provide services.

The working procedure of this litigation is also made very easy and flexible. The primary focus is just to provide a time bound public service and if the concerned officer fails to do so than there is a procedure to file an appeal against him, there is also a provision of second appeal. Both the appeals are operational with law and need to be enforced certainly. This reduced the chances of corruption and also created the fear of law and order in the mind of undisputed autocrats.

Thus, in a nutshell the right to public services slight differently in different states worked to reduce the corruption rate and ill treatment present inside the public offices by providing the time bound public services to all and to ensure the equality before law.

 

9
Sep

WRIT JURISDICTION: WHICH MAKES INDIAN JUDICIARY INDEPENDENT

MANISHEK KUMAR SING,  CITY ACADEMY LAW COLLEGE

INTRODUCTION:

Abstract declarations of Fundamental rights in the Constitution are useless, unless there is the means to make them effective. The power of the courts to enforce obedience to the fundamental rights again depends not only upon the impartiality and independence of Judiciary, but also upon the effectiveness of the instruments available to it to compel such obedience against the Executive or any other authority.

WHAT IS WRITS?

In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; it is often described as a formal order issued by a government authority in the name of sovereign power.

ORIGIN OF WRITS

Originally, the concept of writs originated from the English Judicial System and was created with the folk courts-moots to the common law courts. It was passed by the King’s Bench in England. At that time it was designated as royal order.

ORIGIN IN INDIA

In India writs were introduced by the Regulating Act, 1773 under which the Supreme Court was established in Calcutta. The charter also introduced High Courts and these High Courts had analogous power to issue writ as successor to the Supreme Court. The writ jurisdiction of both the courts was limited to their original civil jurisdiction which they enjoyed under Specific Relief Act, 1877.

CONSTITUTIONAL PROVISIONS 

The Constituent assembly of India while drafting the constitution of India had adopted the very feature of British Judicial System and mentioned it in our constitution in the name of Constitutional remedies in Article 32 and Article 226. The aim behind introducing the writ in our Constitution is only and only to ensure the existence of Fundamental rights for all the person and citizen of Country. It basically act as a constitutional machinery which helps in enforcing the Fundamental rights.

Constitution of India provides the special power of issuing writs to Supreme Court and High Court in the nature of:

  • Habeas Corpus 2)Mandamus  3)Prohibition  4)Certiorari  5) Quo-Warranto               

These writs are basically known as the prerogative writs.

  • WRIT OF HABEAS CORPUS
  • Meaning: –

It basically says that “You should have the body”. The basic aim behind this is to ensure “the legality of Detention” and if wrong person is detained then with immediate effect “Release of Person from illegal detention”.

  • Scope:-
  1. Through this particular Writ Hon’ble High Court and Supreme Court make an order calling upon the person who has been detained to produce before the court.
  2. To know what was the basis of arrest or detention.
  • If it is found that the reason behind the arrest or detention is invalid and not based on Principle of Legality then the detained or arrested person is set free.
  • Cases related to it: –
  • Kanu Sanyal vs. District Magistrate

The court may examine the legality of the detention without requiring the person detained to be produced before it.

  • Sheela Barse vs. State of Maharashtra

If the detained person is unable to pray for the writ of Habeas Corpus, someone else may pray for such writ on his behalf.

 

 

  • WRIT OF MANDAMUS
  • Meaning: –

It is a court order commanding an inferior court or public authority to perform an official duty correctly and honestly.

  • Grounds on which this writ can be issued:
  • Acted against the law
  • Exceeded his limits of Power
  • Acted with mala fides
  • Abused his discretionary powers
  • Did not performed the duty with proper and relevant consideration
  • Cases related to it: –
  • Hemendra vs. Gauhati University

Mandamus was issued to direct a University to announce that the petitioner has passed where; University had refused so to declare though the petitioner had obtained the pass marks required by the statutory rules of the university.

 

 

 

  • Barada Kanta vs. State of West Bengal

Writ of Mandamus cannot be issued against individual person or any private organization because they are not entrusted with a public Duty.

 

  • WRIT OF PROHIBITION
  • Meaning:

It is basically given in order to command “stay orders”. It is an extra ordinary prerogative writ which is preventive in nature.

  • Grounds : –
  • It is issued in case where there is excess of Jurisdiction and where there is absence of Jurisdiction.
  • When proceeding regarding some matters are pending in Court.
  • Issued by both HCs and SCs to an inferior court or Quasi-Judicial body but not against legislative or administrative body.
  • Cases related to it: –
  • East India Commercial Co. Ltd vs. Collector of Customs

A writ of Prohibition was issued to an inferior tribunal forbidding it from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land.

 

  • WRIT OF CERTIORARI
  • Meaning: –

Certiorari is a latin word being in the passive form of the word “Certiorare” meaning to inform. Like the writ of Prohibition certiorari is also Judicial in nature as it is issued against a Quasi- judicial authority. It is both preventive as well as Curative in nature.

  • Grounds: –
  • It is issued to correct the errors of Jurisdiction.
  • When court or Tribunal acts illegal in its Jurisdiction.
  • Order against Principle of Natural Justice.
  • To remove error in the decision or determination it may also be amenable to a writ of Certiorari.
  • Case Laws: –
  • Hari Vishnu Kamath vs. Ahmed Ishaque (AIR 1955 SC 233)

In this case the grounds for issuing the particular writ is defined that grounds are mentioned above.

  • Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & ors., (1958) SCR 1240

The parameters for the exercise of Jurisdiction was decided that are:

  1. Check whether inferior court has exceeded its Jurisdiction.
  • WRIT OF QUO-WARRANTO
  • Meaning: –

It basically means “what is your authority”. Quo-warranto writ is issued against the person of Public who occupies the public seat without any qualification for the appointment. It is used to restrain the authority or candidate from discharging his duty off that public office.

  • Grounds: –
  • Public office created by a statue.
  • Person to be appointed by a statue or statutory instrument.
  • Cases Related to it: –
  • Manohar Reddy vs. Union of India

Two advocates filed a petition quashing the appointment of a judge of HC of AP and a writ is in the nature of Mandamus commanding the Bar council of AP to cancel the enrollment as an advocate NV Ramana.

  • University of Mysore Vs. Govinda Rao

Sc held that the particular writ is only to check the wrong appointments in the executive branch of Government.

 

CONCLUSION

Through the provision of Article 226 and 32 and its writ jurisdiction in the nature of habeas corpus, mandamus, certiorari, prohibition, quo-warranto our judicial system commands that there is supremacy of law in country and no one is above whether its government or its organ everyone have to be accountable towards the judiciary therefore this shows that our judicial system is independent of any other influences.

 

 

27
Jul

Chart on Fundamental Right is now available at Book Stores in Lucknow

Fundamental Rights have always been very important for judiciary, IAS, civil and many other competition exams. It makes weightage of about 15-20% or even more of the total questions asked in the competitive exams which further makes it important for every law students to prepare well on important judgments with notable precedents on Fundamental Rights. But reading and learning Fundamental Right takes a lot of energy and a lot of time.

Into Legal World has made it easy to learn every important Articles with important case laws and notable precedent. We have compiled all the cases which have been asked in competitive exams and those are in high probability to be asked in upcoming exams into one flow chart.

You will get all the important cases with notable precedent in one chart which will make it easy for you to learn the law.

Now find it at most popular competition Book store in Lucknow.

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Shop No. 103, Sahara Plaza, Patrakarpuram, Gomti Nagar, Near Vishal Market, Lucknow, Uttar Pradesh, India.

 

2
Apr

When freedom of religion conflicts with other freedom

It is imperative that if any individual or group of persons, by their action or caustic and inflammatory speech are bent upon sowing seeds of mutual hatred, and their proposed activities are likely to create disharmony and disturb the equilibrium, sacrificing public peace and tranquillity, strong action and more so, preventive action are essentially and virtually needed to be taken. any speech or action which would result in ostracisation of communal harmony would destroy all those high values which the Constitution aim at. Whenever the authorities concerned in charge of law and order find that a person’s speeches or action are likely to trigger communal antagonism and hatred resulti9ng in fissiparous tendencies gaining foothold, undermining and effecting communal harmony, prohibitory orders need necessarily to be passed to effectively avert such untoward happenings. It was also held that no person, however big he may be or claim to be, should be allowed irrespective of the position be may assume or claim to hold in public to either act in a manner or make speeches which would destroy secularism recognised by the constitution. Communal harmony should not be made to suffer and be made dependent upon the will of an individual or group of individuals, whatever e their religion, be it of a minority or that of majority. Persons belonging to different religions must feel assured that they can live in peace with the persons belonging to other religion.

Since freedom under Article 25 belongs to every person, the freedom of one cannot encroach upon similar freedom belonging to other person. The right guaranteed under this Article does not extend to creating hatred amongst two groups of persons practicing different religion.

Also that, a religious speech may be restricted on the ground that it is injurious to national security or safety which is indicated by the expression ‘security of the state’ in Article 19 (2).

Read: Relationship between directive principles of state policy and fundamental rights

In other context, namely, election, the Supreme Court in Vimal v. Bhagiji [AIR 1995 SC 1836] has held that the use of religion for electioneering has been made punishable by section 123 (3) and 123 (3A) of Representation of People’s Act.

Thus, where the speech is used for  a religious purpose, e.g, for the purpose of professing or propagating one’s religion, it should be subjected to the limitations which are imposed by Article 19 (2) as held in Subhash Desai v. Sharad J. Rao, [AIR 1994 SC 2277].

31
Mar

Nature and scope of right against self incrimination

In the case of Selvi v. State of Karnataka, (2010) 7 SCC 263, it was held that;

  • The interrelationship between the “right against self incrimination” and the “right to fair trial” has been recognised in most jurisprudence as well as international human rights instruments. For example, the US Constitution incorporates the “privilege against self-incrimination” in the text of its Fifth Amendment. The meaning and scope of this privilege has been judicially moulded by recognising its interrelationship with other constitutional rights such as the protection against “unreasonable search and seizure” and guarantee of “due process of law”. in the International Convent on Civil and Political Rights, 1966, Article 14 (3) (g) enumerates the minimum guarantees that are to be accorded during a trial and states that everyone has a right not to be compelled to testify against himself or to confess guilt. in the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Article 6 91) states that every person charged with an offence has a right to a fair trial and Article 6 (2) provides that “everybody charged with a criminal offence shall be presumed innocent until proved guilty according to law.” the guarantee of “presumption of innocence” bears a direct link to the “right against self-incrimination” since compelling the accused person to testify would place the burden of proving innocence on the accused instead of requiring the prosecution to prove guilt.

Read: Doctrine of Reasonable Classification

  • In the Indian context, Article 20 (3) should be construed with due regard for the interrelationship between rights, since this approach was recognised in Maneka Gandhi case. Hence, we must examine the “right against self-incrimination” in respect of its relationship with the multiple dimension of “personal liberty” under Article 21, which includes guarantees such as “right to fair trial” and “substantive due process”.
  • The right of refusal to answer questions that may incriminate a person is a procedural safeguard which has gradually evolved in common law and bears a close relation to the “right to fair trial”.
  • Since the extension of the “right against self incrimination” to suspects and witness has its basis in section 161 (2) CrPC, 1973, it is not readily available to persons who are examined during proceedings that are not governed by the code. There is a distinction between proceedings of a purely criminal nature and those proceedings which can culminate in punitive remedies and yet cannot be characterised as criminal proceedings. The consistent position has been that ordinarily Article 20 (3) cannot be invoked by witnesses during proceeding that cannot be characterised as criminal proceedings.
  • Whether the results obtained through polygraph examination and the BEAP test should be treated as testimonial responses?

Ordinarily evidence is classified into three broad categories, namely, oral testimony, documents and material evidence. The protective scope of Article 20 (3) read with section 161 (2) CrPC guards against the compulsory extraction of oral testimony, even at the stage of investigation. With respect to the production of documents, the applicability of Article 20 (3) is decided by the trial Judge but parties are obliged to produce documents in the first place. However, the compulsory extraction of material (or physical) evidence lies outside the protective scope of Article 20 (3). Furthermore, even testimony in oral or written from can be required under compulsion if it is to be used for the purpose of identification or comparison with materials and information that it already in the possession of investigators.

  • So far, the judicial understanding of privacy in our country has mostly stressed on the protection of body and physical spaces from intrusive actions by the state. While the scheme of criminal procedure as well as evidence law mandates interferences with the physical privacy through statutory provisions that enables arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person “to impart personal knowledge about a relevant fact.” The theory of interpretation of rights mandates that the tight against self -incrimination should also be read as component of “personal liberty” under Article 21. Hence, our understanding of the “right to privacy” should account for its intersection with Article 20 (3). Furthermore, the “rule against involuntary confessions” as embodied in section 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve both the objective of reliability as well as voluntariness of testimony given in a custodial setting. A conjunctive reading of Article 20 93) and 21 of the Constitution along with the principles of evidence law leads us to clear answer. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual decision to make statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties.