Showing posts with label Law of Constitution. Show all posts
Showing posts with label Law of Constitution. Show all posts
Monday, April 18, 2016
Community and Law
Community means the people living in one particular area of people who are considered as a unit
Tuesday, September 22, 2015
CONCEPT OF ‘LEGISLATIVE PRIVILEGES
CONCEPT OF ‘LEGISLATIVE PRIVILEGES’:- Privileges are attached to House of
Legislature collectively, or to its members individually, with a view to enabling the house
to Act and discharge its high functions effectively, without fear or favour, or without any
hindrance, interference or obstruction from any quarter.
The Indian Constitution makers appreciated the need to confer certain privileges
to the legislatures in India. The Constitution specifically defines only a few privileges
but the rest of the privileges of the legislatures in India shall be those which were enjoyed
by the House of Commons on the date of commencement of the Constitution.
The relevant provisions in the Constitution defining legislative privileges are
Articles 105 and 194. Article 105 relates to Parliament while Article 194 relates to the
State Legislature. Both these provisions are couched practically in similar language.
Article 105 as it stood prior to the Constitution (42nd Amendment) Act, 1976 ran as
follows:
(1) Subject to the provisions of this Constitution….there shall be freedom of speech
in Parliament.
(2) No member of Parliament shall be liable to any proceedings in any Court in
respect of any things said or any vote given by him in Parliament or any
committee thereof, and no person shall be so liable in respect of the publication
by or under the authority of either House of Parliament any report, papers, votes
or proceedings.
(3) In other respects, the powers privileges and immunities of each House of
Parliament and of the members and the committees of each House, shall be such
as may from time to time be defined by Parliament by law, and until so defined,
shall be those of the House of Commons of the Parliament of the United
Kingdom, and of its members and committees, at the commencement of this
Constitution.
(4) The provisions of clause (1), (2) and (3) shall apply in relation to person who by
virtue of this Constitution have the right to speak in and otherwise to take part in
the proceedings of, a House of Parliament or any committee therefore as they
apply in relation to members of Parliament.
PARLIAMENTARY PRIVILEGES AND THE PRESS: Clause (1) of Article
105 provides for freedom of speech of a member in a House of Parliament. A full
and free debate is of the essence of Parliamentary Democracy. This privilege has
given rise to two other privileges of the House, viz., (i) to hold meetings of the
House in camera and thus exclude strangers from listening to the debates in the
House, and (ii) prohibiting the publication of the debates and proceedings held
within the House.
Clause (2) of Article 105 confers an immunity on members of a House of
Parliament as well as on the publications made under the authority of the House
from any legal proceedings.
It is clause (3) of Article 105, which is crucial for our present purpose.
Before, 1976, this clause provides that a House could enjoy such privilege as were
defined by Parliament (or a State legislature) by law and until so defined a Hose
would have the same privileges as the House of Commons at the commencement
of the Constitution. Thus, the legislative privileges which, by and large affected
the press were the ones which were claimed by a legislative House in India under
Article 105(3) or Article 194(3).
In 1976, Article 105(3) underwent a change by Forty Second Amendment
Act. Later in 1978 another amendment was made in Article 105(3), which today
stands, follows as under:
“…shall be such as may from time to time be defined by Parliament by law, and,
until so defined, shall be those of that House and of its members and committees
immediately before the coming into force of Section 15 of the Constitution (44th
Amendment) Act, 1978.”
Similarly, Article 194(3) also underwent changes as noted above.
The purpose of these amendments was to drop from the constitution any
reference to the House of Commons.
POWER TO PUNISH FOR CONTEMPT –KEYSTONE OF
PARLIAMENTARY PRIVILEGE:-
The most potent weapon in the hands of a House of Legislature to enforce
is privileges it is the power to punish for its contempt, or for “breach of
privilege”. A House can punish anyone, whether a member or any outsider, for
its contempt or breach of privilege. The difficulty here is that the grounds on
which a person can be held guilty of contempt of a House are vague uncertain and
indefinite and have not been specified anywhere.
Generally speaking, contempt of a House is committed when any Act or
omission impedes or obstructs a House in the discharge of its functions, or which
obstructs or impedes any member of the officer of the House in the discharge of
his duties or which has a tendency directly or indirectly to produce such result.
Committee of Privileges:- Each House of Parliament has a Committee of
Privileges. The Committee is to determine the reference to the Acts of each case
whether a breach of privilege is involved. It can call oral and documentary
evidence. The report of the Committee is presented to the House concerned,
which takes appropriate action on it.
FUNDAMENTAL RIGHT AND PRIVILEGES:
There has been some confusion on the question whether the Fundamental
Rights control in any way the privileges which a House enjoy under Article
105(3) and which is to prevail in case of a conflict between such a privilege and
Fundamental Rights? In Gunupati v. Nafisul Hassan (AIR 1954 SC 836), the
Supreme Court ordered the release of the Editor of “Bitz”, arrested on a charge of
contempt of the House under the Speaker’s warrant, on the ground that he had not
been produced before a Legislature within 24 hrs of his arrest as required by
Article 22(2). This created the impression that the Fundamental Rights would
control Parliamentary privileges.
In the Searchlight case(i.e., M.S.M. Sharma V. Sinha, AIR 1959 SC
395), the Supreme Court held by majority that the privileges enjoyed by a House
of Parliament under Article 105(3) were not subject to Article 19(1)(a) and,
therefore, a House was entitled to prohibition contravenes the Fundamental Right
of Speech and Expression under Article 19(1). The Gunupati(supra) was held
not binding as it was not a considered opinion on the subject. The court observed
that Article 105(3) was not declared to be “subject to the Constitution” and
therefore it was as supreme as provision of the Constitution including the
Fundamental Rights.
Reconsidering the question of mutual relationship between the
Fundamental Rights and legislative privileges in Keshav Singh v. Speaker
Legislative Assembly (1965 SC 745), the Supreme Court held that the
Searchlight case excluded only Article 19(1)(a) and not other fundamental Rights
from controlling the legislative privilege. It held that Article 21 would apply to
Parliamentary privileges and a person would be free to come to the court for a
writ of habeas corpus on the ground that he had been deprived of his personal
liberty not in accordance with law but for capricious or malafide reason.
Thus, the position appears to be that it is wrong to suppose that no
Fundamental Right applies to the area of legislative privileges. Some
Fundamental Right like Art. 19(1)(a) do apply. Perhaps Art. 21 do apply, while
the position with regard to others, e.g. Arts. 22(1) and (2) is not clear. There is,
however, no doubt that if Parliament were to Act would not be free from the
controlling effect of the Fundamental Right. Such provisions of the law as
contravene fundamental rights provisions of the law as contravene fundamental
rights would be invalid(C. Subra Manium v. Speaker L.A. 1969 Mad. 10).
PRIVILEGES AND THE COURTS:-
The question of Parliament and Court relationship often arises in privilege
matters. This involves several postulates: (1) who decides whether a particular
privilege claimed by a House exists or not; (2) When a privilege is held to exist, is
a House the final judge of how, in practice, that privilege is to be exercised; (3)
can be courts go into the question of validity or propriety of committal by a House
for its contempt or breach of privilege?
In England, there had been a good deal of controversy in the past between
the House of Commons and the Courts on these questions. The era of legislative-
judiciary conflict in matters of privileges is now past in England. A balance
between the two had now been established along the following lines: (1) the
courts recognize the common law privileges; (2) a new privilege can be created
for the House only by a law passed by Parliament and not merely by a resolution
of one House, (3) whether a particular privilege claimed by a House exists or not
is a question for the courts to decide.
So far as India is concerned, a House of Parliament may claim a privilege
if (i) the Constitution grants it specially, or (ii) it has been created by a law of
Parliament; or (iii) it was enjoyed by the House under Art. 105(3). This naturally
brings the Courts into the area of Parliamentary privileges. When a question
arises whether a particular privilege exist or not, it is for the courts to give a
definite answer by finding out whether it calls under any of the sources mentioned
above. In a number of cases the courts have decided the question whether a
particular privilege claimed by a House exist or not. (The Searchlight’s case
(supra), Yashwant Rao v. M.P. Legislative Assembly, AIR 1967 M.P. 95) of
course, when once, it is held that a particular privilege exist then it is for the
House to judge the occasinand the manner of its exercise and courts would not sit
in judgment over the way the House has exercised its privilege.
Each House of Parliament in India has a power to commit a person for its
contempt. But the position remains vague on the question whether such
committal is immune from judicial scrutiny or not. The question whether courts
can interfere with the power of a House to commit for its contempt arose most
dramatically in 1964 in the Keshav Singh’s case (supra), where the U.P.
Assembly claimed an absolute power to commit a person for its contempt and a
general warrant issued by it to be conclusive and free from judicial scrutiny. This
case may be regarded as the high water marks of legislative judiciary conflict in a
privilege matter in which the relationship between the two was brought to a very
critical point, and the whole episode was reminiscent of the conflict between the
House of Commons and the Judiciary in England in 1689 when two judges were
committed by the House.
The brief facts of the Keshav Singh’s case are that Keshav Singh
published a pamphlet against a member of State Leg. Assemb. House adjudged
him guilty of contempt and sentenced him to be reprimanded. On March 14,
1964, when the Speaker administered reprimand, he misbehaved. The House
punished him for seven days imprisonment. On March, 19, 1964, Solomon,
Advocate moved an habeas corpus petition under Article 226 which was heard by
two judges of the Allahabad High Court on behalf of Keshav Singh. It was
alleged that his detention was illegal as the House had no authority to do so. He
had not been given an opportunity to defend himself and that his detention as
malafide and against natural justice. The court granted interim bail and order
released Keshav Singh. The House resolved that Solomon, Adv. and the two
judges who passed the order had committed contempt of the House and they be
brought before the House. The Judges moved petitions under Art. 226,
whereupon the full Bench of the Allahabad High Court stayed the implementation
of the resolution of the House. The House then passed a clarificatory resolution
that its earlier resolution had given rise to misgivings that concerned persons
would be deprived of an opportunity of explanation, and that the concerned
judges were put under obligation to appear before the House and explain why the
House should not proceed against them for its contempt. This resolution was
against stayed by the High Court. Thus, there emerged a complete legislative
judiciary deadlock. The President of India, then referred the matter to the
Supreme Court for opinion under Art. 143. By a majority of 6:1, the Supreme
Court held that the two judges had not committed any contempt of the legislature
by granting bail. Art. 211 debars the State Legislature (Art. 121 in case of
Parliament) from discussing the conduct of a High Court judge. Therefore, the
Legislature cannot take any action against a High Court Judge for anything done
in the discharge of his duties. The existence of a fearless and independent
judiciary being the basic foundation of the constitutional structure in India, no
Legislature has power to take action against a judge for its contempt alleged to
have been committed by the judge in the discharge of his duties. The Court also
held that the right of the citizens to move the judicature and the right of the
Advocates to assist that process must remain uncontrolled by Art.105(3). It is
necessary to do so enforcing the Fundamental Rights and for sustaining the Rule
of law in the country.
CODIFICATION OF PRIVILEGES AND PREVENTION OF ITS MISUSE:
In the wake of Keshav Singh’s case(supra), two contradictory ideas were
brought into bold relief. One the one hand, the Speakers wanted the Constitution
to be amended so as to conclude an absolute power to a House to commit any one
for its contempt. On the other hand, there arose a demand for codification of
legislative privileges.
In its Fourth Report the Privileges Committee of the Lok Sabha has
recommended against any legislation to codify Parliamentary privileges. In the
new political culture, the Parliamentary privileges have become a multi-headed
monster. The law of Parliamentary privileges has become a weapon in the hands
of the ruling parties, misused in many ways for personal, party and partisan ends
through their majorities in the Houses and Committees.
The most fundamental privilege of the legislators which is mentioned in
the Constitution itself is that of the freedom of speech and vote in the discharge of
one’s duties as a legislator. In all respects, the Constitution has provided for each
House laying down its privileges by law and until such laws are made, the
position in this regard could be the same as in the British House of Commons. By
making this provision for regulation of privileges by law the Constitution makers
made it clear that they expected the privileges to be subordinate to the
fundamental freedoms of the individual and amenable to judicial review.
Real democracy requires three basic aspects, i.e., accurate information,
equal and effective participation of all citizens in day to day governance,
transparency and accountability on part of those holding public office.
Art. 19 reveals about the freedom of press, which also includes right to
information. India is a democratic country and both these rights are the basic
components of democracy. According to Article 105, which protects privileges of
Parliament always curtailed the wings of Art. 19 . The whole scenario is changed
after the enactment of the Right to Information Act, 2002. The RTI Act is
recognized under Art. 19 and the privileges under Art. 105.
Member of Legislature should not forget that they are not above the
people. How can they be a law into themselves. To prevent ugly situations
appearing again and again in the name of protecting Parliamentary privileges,
the only honest and straightforward course would be for Parliament and State
Legislature to abide by the constitutional provision and codify their privileges
by law.
Legislature collectively, or to its members individually, with a view to enabling the house
to Act and discharge its high functions effectively, without fear or favour, or without any
hindrance, interference or obstruction from any quarter.
The Indian Constitution makers appreciated the need to confer certain privileges
to the legislatures in India. The Constitution specifically defines only a few privileges
but the rest of the privileges of the legislatures in India shall be those which were enjoyed
by the House of Commons on the date of commencement of the Constitution.
The relevant provisions in the Constitution defining legislative privileges are
Articles 105 and 194. Article 105 relates to Parliament while Article 194 relates to the
State Legislature. Both these provisions are couched practically in similar language.
Article 105 as it stood prior to the Constitution (42nd Amendment) Act, 1976 ran as
follows:
(1) Subject to the provisions of this Constitution….there shall be freedom of speech
in Parliament.
(2) No member of Parliament shall be liable to any proceedings in any Court in
respect of any things said or any vote given by him in Parliament or any
committee thereof, and no person shall be so liable in respect of the publication
by or under the authority of either House of Parliament any report, papers, votes
or proceedings.
(3) In other respects, the powers privileges and immunities of each House of
Parliament and of the members and the committees of each House, shall be such
as may from time to time be defined by Parliament by law, and until so defined,
shall be those of the House of Commons of the Parliament of the United
Kingdom, and of its members and committees, at the commencement of this
Constitution.
(4) The provisions of clause (1), (2) and (3) shall apply in relation to person who by
virtue of this Constitution have the right to speak in and otherwise to take part in
the proceedings of, a House of Parliament or any committee therefore as they
apply in relation to members of Parliament.
PARLIAMENTARY PRIVILEGES AND THE PRESS: Clause (1) of Article
105 provides for freedom of speech of a member in a House of Parliament. A full
and free debate is of the essence of Parliamentary Democracy. This privilege has
given rise to two other privileges of the House, viz., (i) to hold meetings of the
House in camera and thus exclude strangers from listening to the debates in the
House, and (ii) prohibiting the publication of the debates and proceedings held
within the House.
Clause (2) of Article 105 confers an immunity on members of a House of
Parliament as well as on the publications made under the authority of the House
from any legal proceedings.
It is clause (3) of Article 105, which is crucial for our present purpose.
Before, 1976, this clause provides that a House could enjoy such privilege as were
defined by Parliament (or a State legislature) by law and until so defined a Hose
would have the same privileges as the House of Commons at the commencement
of the Constitution. Thus, the legislative privileges which, by and large affected
the press were the ones which were claimed by a legislative House in India under
Article 105(3) or Article 194(3).
In 1976, Article 105(3) underwent a change by Forty Second Amendment
Act. Later in 1978 another amendment was made in Article 105(3), which today
stands, follows as under:
“…shall be such as may from time to time be defined by Parliament by law, and,
until so defined, shall be those of that House and of its members and committees
immediately before the coming into force of Section 15 of the Constitution (44th
Amendment) Act, 1978.”
Similarly, Article 194(3) also underwent changes as noted above.
The purpose of these amendments was to drop from the constitution any
reference to the House of Commons.
POWER TO PUNISH FOR CONTEMPT –KEYSTONE OF
PARLIAMENTARY PRIVILEGE:-
The most potent weapon in the hands of a House of Legislature to enforce
is privileges it is the power to punish for its contempt, or for “breach of
privilege”. A House can punish anyone, whether a member or any outsider, for
its contempt or breach of privilege. The difficulty here is that the grounds on
which a person can be held guilty of contempt of a House are vague uncertain and
indefinite and have not been specified anywhere.
Generally speaking, contempt of a House is committed when any Act or
omission impedes or obstructs a House in the discharge of its functions, or which
obstructs or impedes any member of the officer of the House in the discharge of
his duties or which has a tendency directly or indirectly to produce such result.
Committee of Privileges:- Each House of Parliament has a Committee of
Privileges. The Committee is to determine the reference to the Acts of each case
whether a breach of privilege is involved. It can call oral and documentary
evidence. The report of the Committee is presented to the House concerned,
which takes appropriate action on it.
FUNDAMENTAL RIGHT AND PRIVILEGES:
There has been some confusion on the question whether the Fundamental
Rights control in any way the privileges which a House enjoy under Article
105(3) and which is to prevail in case of a conflict between such a privilege and
Fundamental Rights? In Gunupati v. Nafisul Hassan (AIR 1954 SC 836), the
Supreme Court ordered the release of the Editor of “Bitz”, arrested on a charge of
contempt of the House under the Speaker’s warrant, on the ground that he had not
been produced before a Legislature within 24 hrs of his arrest as required by
Article 22(2). This created the impression that the Fundamental Rights would
control Parliamentary privileges.
In the Searchlight case(i.e., M.S.M. Sharma V. Sinha, AIR 1959 SC
395), the Supreme Court held by majority that the privileges enjoyed by a House
of Parliament under Article 105(3) were not subject to Article 19(1)(a) and,
therefore, a House was entitled to prohibition contravenes the Fundamental Right
of Speech and Expression under Article 19(1). The Gunupati(supra) was held
not binding as it was not a considered opinion on the subject. The court observed
that Article 105(3) was not declared to be “subject to the Constitution” and
therefore it was as supreme as provision of the Constitution including the
Fundamental Rights.
Reconsidering the question of mutual relationship between the
Fundamental Rights and legislative privileges in Keshav Singh v. Speaker
Legislative Assembly (1965 SC 745), the Supreme Court held that the
Searchlight case excluded only Article 19(1)(a) and not other fundamental Rights
from controlling the legislative privilege. It held that Article 21 would apply to
Parliamentary privileges and a person would be free to come to the court for a
writ of habeas corpus on the ground that he had been deprived of his personal
liberty not in accordance with law but for capricious or malafide reason.
Thus, the position appears to be that it is wrong to suppose that no
Fundamental Right applies to the area of legislative privileges. Some
Fundamental Right like Art. 19(1)(a) do apply. Perhaps Art. 21 do apply, while
the position with regard to others, e.g. Arts. 22(1) and (2) is not clear. There is,
however, no doubt that if Parliament were to Act would not be free from the
controlling effect of the Fundamental Right. Such provisions of the law as
contravene fundamental rights provisions of the law as contravene fundamental
rights would be invalid(C. Subra Manium v. Speaker L.A. 1969 Mad. 10).
PRIVILEGES AND THE COURTS:-
The question of Parliament and Court relationship often arises in privilege
matters. This involves several postulates: (1) who decides whether a particular
privilege claimed by a House exists or not; (2) When a privilege is held to exist, is
a House the final judge of how, in practice, that privilege is to be exercised; (3)
can be courts go into the question of validity or propriety of committal by a House
for its contempt or breach of privilege?
In England, there had been a good deal of controversy in the past between
the House of Commons and the Courts on these questions. The era of legislative-
judiciary conflict in matters of privileges is now past in England. A balance
between the two had now been established along the following lines: (1) the
courts recognize the common law privileges; (2) a new privilege can be created
for the House only by a law passed by Parliament and not merely by a resolution
of one House, (3) whether a particular privilege claimed by a House exists or not
is a question for the courts to decide.
So far as India is concerned, a House of Parliament may claim a privilege
if (i) the Constitution grants it specially, or (ii) it has been created by a law of
Parliament; or (iii) it was enjoyed by the House under Art. 105(3). This naturally
brings the Courts into the area of Parliamentary privileges. When a question
arises whether a particular privilege exist or not, it is for the courts to give a
definite answer by finding out whether it calls under any of the sources mentioned
above. In a number of cases the courts have decided the question whether a
particular privilege claimed by a House exist or not. (The Searchlight’s case
(supra), Yashwant Rao v. M.P. Legislative Assembly, AIR 1967 M.P. 95) of
course, when once, it is held that a particular privilege exist then it is for the
House to judge the occasinand the manner of its exercise and courts would not sit
in judgment over the way the House has exercised its privilege.
Each House of Parliament in India has a power to commit a person for its
contempt. But the position remains vague on the question whether such
committal is immune from judicial scrutiny or not. The question whether courts
can interfere with the power of a House to commit for its contempt arose most
dramatically in 1964 in the Keshav Singh’s case (supra), where the U.P.
Assembly claimed an absolute power to commit a person for its contempt and a
general warrant issued by it to be conclusive and free from judicial scrutiny. This
case may be regarded as the high water marks of legislative judiciary conflict in a
privilege matter in which the relationship between the two was brought to a very
critical point, and the whole episode was reminiscent of the conflict between the
House of Commons and the Judiciary in England in 1689 when two judges were
committed by the House.
The brief facts of the Keshav Singh’s case are that Keshav Singh
published a pamphlet against a member of State Leg. Assemb. House adjudged
him guilty of contempt and sentenced him to be reprimanded. On March 14,
1964, when the Speaker administered reprimand, he misbehaved. The House
punished him for seven days imprisonment. On March, 19, 1964, Solomon,
Advocate moved an habeas corpus petition under Article 226 which was heard by
two judges of the Allahabad High Court on behalf of Keshav Singh. It was
alleged that his detention was illegal as the House had no authority to do so. He
had not been given an opportunity to defend himself and that his detention as
malafide and against natural justice. The court granted interim bail and order
released Keshav Singh. The House resolved that Solomon, Adv. and the two
judges who passed the order had committed contempt of the House and they be
brought before the House. The Judges moved petitions under Art. 226,
whereupon the full Bench of the Allahabad High Court stayed the implementation
of the resolution of the House. The House then passed a clarificatory resolution
that its earlier resolution had given rise to misgivings that concerned persons
would be deprived of an opportunity of explanation, and that the concerned
judges were put under obligation to appear before the House and explain why the
House should not proceed against them for its contempt. This resolution was
against stayed by the High Court. Thus, there emerged a complete legislative
judiciary deadlock. The President of India, then referred the matter to the
Supreme Court for opinion under Art. 143. By a majority of 6:1, the Supreme
Court held that the two judges had not committed any contempt of the legislature
by granting bail. Art. 211 debars the State Legislature (Art. 121 in case of
Parliament) from discussing the conduct of a High Court judge. Therefore, the
Legislature cannot take any action against a High Court Judge for anything done
in the discharge of his duties. The existence of a fearless and independent
judiciary being the basic foundation of the constitutional structure in India, no
Legislature has power to take action against a judge for its contempt alleged to
have been committed by the judge in the discharge of his duties. The Court also
held that the right of the citizens to move the judicature and the right of the
Advocates to assist that process must remain uncontrolled by Art.105(3). It is
necessary to do so enforcing the Fundamental Rights and for sustaining the Rule
of law in the country.
CODIFICATION OF PRIVILEGES AND PREVENTION OF ITS MISUSE:
In the wake of Keshav Singh’s case(supra), two contradictory ideas were
brought into bold relief. One the one hand, the Speakers wanted the Constitution
to be amended so as to conclude an absolute power to a House to commit any one
for its contempt. On the other hand, there arose a demand for codification of
legislative privileges.
In its Fourth Report the Privileges Committee of the Lok Sabha has
recommended against any legislation to codify Parliamentary privileges. In the
new political culture, the Parliamentary privileges have become a multi-headed
monster. The law of Parliamentary privileges has become a weapon in the hands
of the ruling parties, misused in many ways for personal, party and partisan ends
through their majorities in the Houses and Committees.
The most fundamental privilege of the legislators which is mentioned in
the Constitution itself is that of the freedom of speech and vote in the discharge of
one’s duties as a legislator. In all respects, the Constitution has provided for each
House laying down its privileges by law and until such laws are made, the
position in this regard could be the same as in the British House of Commons. By
making this provision for regulation of privileges by law the Constitution makers
made it clear that they expected the privileges to be subordinate to the
fundamental freedoms of the individual and amenable to judicial review.
Real democracy requires three basic aspects, i.e., accurate information,
equal and effective participation of all citizens in day to day governance,
transparency and accountability on part of those holding public office.
Art. 19 reveals about the freedom of press, which also includes right to
information. India is a democratic country and both these rights are the basic
components of democracy. According to Article 105, which protects privileges of
Parliament always curtailed the wings of Art. 19 . The whole scenario is changed
after the enactment of the Right to Information Act, 2002. The RTI Act is
recognized under Art. 19 and the privileges under Art. 105.
Member of Legislature should not forget that they are not above the
people. How can they be a law into themselves. To prevent ugly situations
appearing again and again in the name of protecting Parliamentary privileges,
the only honest and straightforward course would be for Parliament and State
Legislature to abide by the constitutional provision and codify their privileges
by law.
DIRECTIVE PRINCIPLES OF STATE POLICY
DIRECTIVE PRINCIPLES OF STATE POLICY :
Introduction & Historical Background : The Directive Principles of State Policy
r guidelines to the Central and State Govts. of India to be kept in mind while
framing laws & policies. These r contained in Part IV (Art. 38 to 51) of the
Constitution of India & not enforceable by any court. The principles hv bn
inspired by the Directive Principles of the Constitution of Ireland. A Constitution
is not intended to be a static document in a developing society & its provisions
must lend themselves to meet the changing needs & requirements of a society.
The main idea is that they serve an educational purpose & might serve as
restraints on those who come in power. They could be held accountable for
ignoring them before the electorate if not before a court of law.
Now, we are living in an era of welfare state, which seeks to promote prosperity
& well-being of the people. The DPSP strengthen & promote this concept by
seeking to lay down some socio-economic goals which the Govt. has to strive to
achieve. The DPSP give directions to legislatures & executive in India as
regards the manner in which they should exercise their power. It shall be the
duty of the State to follow these principles both in the matter of administration as
well as in the making of laws.
Most of the DPSP aim at the establishment of economic & social democracy,
which is pledged for in the Preamble. The Preamble emphasizes that India
should be a socialist secular democratic republic, based on social, economic &
political justice. The Constitution-makers rightly perceived that political
democracy would be meaningless without economic justice. The DPSP,
therefore, spell out in greater detail the goal of economic democracy. Thus, they r
supplementary to the Preamble. They have played a crucial role in legislative &
administrative policy making in the country. They have inspired the idea of
socialist pattern of society.
Directive Principles & Fundamental Rights : The Constitution draws a
distinction b/w FRs & DPSP. The FRs r rights enforeable by legal action; while
DPSP r excluded from the purview of the courts. India has followed the plan of
the Irish Constitution. They r nt contained in USA Constitution.
Though the DPSP hv to run as subsidiary to the FRs, in determining the scope &
ambit of the rights & reasonableness of the restrictions imposed in exercise of
the rights, the court may not entirely ignore the DPSP, but should adopt the
principle of harmonious construction & should attempt to give effect to both as
much as possible, per Kerala Education Bill, 1957. But the DPSP can’t override
the provisions contained in Part III of the Constitution, per State of Madras v.
Champakam Dorairajan. Parts III & IV of the Constitution are supplementary to
each other, per Unni Krishan v. State of A.P. The sanction behind them is, in
fact, political. As Dr. Ambedkar observed in the Constituent Assembly, “If any
Govt. ignores them, they will certainly have to answer before the electorate at the
election time”. They impose positive obligations on the State. In course of time,
courts started giving some value to DPSP from a legal point of view. Where two
judicial choices r available, the construction in conformity with the social
philosophy in DPSP has preference. The courts also adopted the view that in
determining the scope & ambit of the FRs, the DPSP should not be completely
ignored & that the courts should adopt the principles of harmonious construction
& attempt to give effect to both as far as possible. Without making the DPSP
justiciable as such, the courts began to implement the values underlying them to
the extent possible.
The position before 1972 Amendment of the Constitution was that they were not
completely meaningless. However, the value of DPSP underwent a
metamorphosis. The first step was the enactment of Art. 31C which gave
primary importance to Art. 39(b), 39(c) & 31. The next step in the direction of
giving primacy to all the DPSP over the FRs was taken in 1976 when all DPSP
were given precedence over Art. 14, 19 & 31.
The State shall strive to promote the welfare of the people by securing &
protecting a social order. The 44th Amendment, 1978 widened the scope of Art.
38, which provided, “the State shall strive to minimize the inequalities in income
& endeavour to eliminate inequalities in status, facilities & opportunities, not only
amongst individuals, but also amongst groups of people residing in different
areas or engaged in different vocations”.
Principles of Policy to be followed by the State : Article 39 requires the State
to direct its policy towards securing :
(a) that the citizens, irrespective of sex, hv right to an adequate means
(b) that the ownership & control of the material resources are so
(c) that operation of the economic system does not result in the
(d) that there is equal pay for equal work for both men & women;
(e) that health & strength of workers, men & women & tender age of
of livelihood;
distributed as best to sub-serve the common good;
concentration of wealth to the common detriment;
(f) that children r given opportunities & facilities to develop in a healthy
children r not abused; that citizens r not forced by economic necessity
to enter avocations unsuited to their age or strength;
manner & that childhood & youth r protected against exploitation &
against moral & material abandonment.
Art. 39(b) & (c) r/w other relevant provisions contain the main objective of
building of a welfare society as also the egalitarian social order in the country.
The Constitution does not permit distinction b/w same class of workers. In
Hindustan Antibiotic v. Workmen, Art. 39(d) was judicially enforced & held that
equal pay for equal work was not a mere dogmatic slogan, but a goal attainable
through constitutional remedies & the enforcement of constitutional rights. In
Delhi Veterinary Association v. Union of Delhi, the SC laid down that the State
must pay equal pay for equal work & the pay structure of the employees of the
Govt. should also reflect many other social values.
In M.C. Mehta v. State of Tamil Nadu, held that in view of Article 39, the
employment of children within match factories directly connected with the
manufacturing process of the matches & fireworks can’t be allowed as it is
hazarduous. Children can, however, be employed in the process of packaging
but it should be done in area away from the place of manufacturing to avoid
exposure to accidents.
Free Legal Aid : Article 39A provides that the State shall secure that the
operation of the legal system promotes justice & shall provide free legal aid to
ensure that opportunities for securing justice are not denied to any citizen by
reason of economic or other disabilities.
In Hussainara Khatton & Ors. v. The Home Secretary State of Bihar (IV), the SC
observed that it is the constitutional right of every accused person unable to
engage a lawyer & secure legal service on a/c of reason such as poverty or
indigence, to have free legal services provided to him by the State, & the State is
under a constitutional mandate to provide a lawyer to such accused person if the
needs of justice so require. If free legal services are not provided to such an
accused, the trial itself may run risk of being vitiated as contravening Article 21.
In PUDR v. UOI, held that rule of law does not mean that the protection of law
must be available only to fortunate few, the poor too have civil & political right
though today it exists only on paper & not in reality.
In State of Maharashtra v. Manubhai Bagali Vachi, held that Art. 21 r/w Art. 39-A
casts a duty on the State to afford grants-in-aid to recognize private law colleges
& it can’t be whittled down in any manner either by pleading paucity of funds or
otherwise.
Village Panchayats : Art. 40 requires the State to take steps to organise village
panchayats to enable them to function as units of self-govt. & to produce
democracy at the grass roots. This provision doesn’t prescribe as to what
powers should be given to the panchayats or what their structure should be & so
the panchayat laws vary from one State to another.
Social Services : The State shall, within the limits of its economic capacity &
development, make effective provisions for securing the right to work, to
education & to public assistance in cases of unemployment, old age, sickness &
disablement, and in other cases of undeserved want. ‘Public assistance’ means
‘economic assistance’.
In Radhakrishna Mills v. S.I.T., held that Art. 41 places no disability on the State
to pay compensation to workers whose continuous employment has suffered as
a result of action on the part of the Govt. such as short supply of electricity. But
in Bennet Coleman v. UOI, observed that the duty to take effective steps to
educate the people within limits of its available economic resources includes
political education as well.
Conditions of Work : Art. 42 provides that the State shall make provision for
securing just & humane conditions of work & for maternity relief. In D.B.
Patanaik v. State of A.P. observed, DPSP (Art. 42) may benevolently be
extended to living conditions in jail.
Living Wage : Art. 43 requires that the State shall endeavour to secure govt.
cos. in public sector should not necessarily be different from cos. in private sector
as Arts. 39 & 43 would be disobeyed if distinction is made b/w the same class of
labourers on the ground that some of them are employed in state enterprises &
others in private enterprises.
Participation of Workers in Management of Industries : Art. 43A provides that
the State shall take steps to secure the participation of workers in the
management of undertakings, establishments or other organizations engaged in
any industry.
Uniform Civil Code : Art. 44 provides that the State shall endeavour to secure
for the citizens a uniform civil code throughout the territory of India. At present,
Hindus are governed by Hindu Law. Likewise, the Muslims are governed by
Mohammadan Law. As India has accepted the ideal of a secular State, this DP
seeks to replace the various systems of personal law by a uniform civil code. In
Mohd. Ahmad Khan v. Shah Bano, the SC observed, “A common civil code will
help the case of national integration by removing disparate loyalities to laws
which have conflicting ideologies.”
In Sarla Mudgal v. UOI, the SC directed the then PM to take fresh look at Art. 44,
which according to the SC, is imperative. But unfortunately, the Court while
hearing an appeal filed by one of the accused clarified that its direction was only
obiter dicta & not legally binding on the Govt.
Free & Compulsory Education for Children : Article 45 requires the State to
endeavour to provide, within ten years, for free & compulsory education for all
children until they complete the age of 14 years. Art. 45 is not confined to
primary education; it extends to providing free education upto an age of 14 years,
whatever the stage of education it may come to.
In Unnikrishan v. State of A.P., observed, ‘Right to Education’ means (a) every
child/citizen of this country has a right to free education until he completes 14
years, his right to education is circumscribed by the limits of the economic
capacity of the State & its development. Only Art. 45 speaks of a time. Art. 45
does not speak of the limits of its economic capacity & development as does Art.
41, which inter alia speaks of RTE.
Promotion of Educational and Economic Interests of Weaker Sections : Art.
46 obligates the State to promote with special care the educational & economic
interests of the weaker sections of the people, and, in particular, of SCs & STs &
to protect them from social injustice & all forms of exploitation.
Raising Standard of Living : The State is under an obligation to take measures
for raising standards of living. In Nashirwar v. State of MP, held dealing in liquor
can’t be regarded as ‘trade or business’ u/Art. 19(1)(g). Opium is a drug &
injurious to health. However, use of drugs for medicinal purposes has been
exempted, per Pritpal Singh v. Chief Comr.
Organisation of Agriculture & Animal Husbandry : U/Art. 48, the State shall
endeavour to organise agriculture & animal husbandry on modern & scientific
lines & shall take steps for preserving & improving the breeds and prohibiting the
slaughter of cows & calves. The directive for taking steps for preventing
slaughter of certain specified categories of animals is quite explicit & positive.
Protection of Wild Life : U/Art. 48A, the State shall endeavour to protect &
improve the environment & to safeguard forests & wild life of d country.
Protection of Monuments : Art. 49 obligates the State to protect every
monument or place or object of artistic or historic interest, declared to be of
national importance, from spoliation, disfigurement, destruction, removal,
disposal or export, as the case may be.
Separation of Judiciary from Executive : U/Art. 50, the State shall take steps
to separate judiciary from executive. In other words, judiciary be freed from
executive control. By & large, this goal has been achieved.
Promotion of International Peace : U/Art.51, State shall endeavour to –
(a) promote international peace & security;
(b) maintain just & honourable relations b/w nations;
(c) foster respect for intl. law & treaty obligations in the dealings of organised
people with one other; &
(d) encourage settlement of intl. disputes by arbitration.
Fundamental Duties : Rights & duties go together. The Constitution mentions
only the Rights, which r FRs. There r also DPSP, which again confer rights on
the citizens of India. Prior to 42nd Amendment of the Constitution, which came
into force on 01.02.1977, there was no provision in the Constitution dealing with
FDs of a citizen. Art. 51A does not contain provision for the enforcement of FDs.
The Swaran Committee suggested that the Parliament be empowered to impose
punishment for breach of FDs, which was, however, not accepted.
Enforcement by the State : Part IV contains a no. of human rights intended
to ensure socio-economic justice. Though they hv bn declared to be
fundamental in the governance of the country, yet they were not enforeable by
court. In the beginning, they did not receive the importance they deserved.
However, gradually they started getting importance. In re. Kerala Education Bill,
1957, held that an attempt must be made to harmonise the provisions of FRs
with DPSP as far as possible such as ‘equal pay for equal work’ has been held to
be a human right / FR.
It is not necessary that a right to be recognised as a human right is expressly
stated in Part III of the Constitution. New rights can be read into & inferred from
the rights stated in Part III. ‘Right to life’ has been held to include many
freedoms. In Maneka Gandhi v. UOI, held that the expression ‘personal liberty’
in Art. 21 is of the widest amplitude & it covers a variety of rights which go to
constitute the personal liberty of man & some of them hv bn raised to the distinct
human rights & given addl. protection. If a law deprives a person of personal
liberty & prescribes a procedure for that purpose within the meaning of Art. 21, it
has to stand the test of Art. 19 & 14. The procedure contemplated by Art. 21
must answer the test of reasonableness in order to be in conformity with Art. 14.
It must be right, just & fair – not arbitrary, fanciful or oppressive; otherwise there
shd b no procedure at all & requirement of Art. 21 wud nt b satisfied.
In Kharak Singh v. State of U.P., held that right to life means not only
continuance of a person’s animal existence but a right to be in possession of
each of his organ, his arms, legs, etc. This means something more than mere
survival of animal existence. Right to life includes the right to basic necessities of
life & the right to carry on such functions & activities as constitute the bare
minimum expression of human-self, per Francis Muller v. Union Territory of Delhi.
Now, it has become a reservoir of human rights & interpreted to include:
(i) right to privacy, Kharak Singh v. State of U.P., which covers tapping of
telephone, People’s Union of Civil Liberties v. UOI;
(ii) right to livelihood, Olga Tellis v. Bby. Municipal Corpn.; it includes better
standard of life, hygienic conditions in work place & leisure; & it ensures to
workmen health & medical care during & after service.
(iii) right to education, Unni Krishnan v. State of A.P.;
(iv) right to travel abroad, Satwant Singh v. Asstt. Passport Officer;
(v) right to envmntl. protection, Vellore Citizen Welfare Forum v. UOI;
(vi) right to shelter; U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing
Society Ltd.;
(vii) right to have pollution free air & water, Indian Council for Enviro Legal
Action v. UOI & M.C. Mehta v. UOI; and
(viii) bonded labour must be identified, released & suitably rehabilitated,
Bandhua Mukti Morcha v. UOI.
In Joginder Kr v. State of UP, held that right of arrested person upon arrest to hv
someone informed about his arrest & right to consult privately with lawyer r
inherent in Art. 21 & 22. The arrest & detention of an honest judgment debtor in
civil prison, who has no means to pay the debt, in absense of mala fide &
dishonesty, violated Art. 11 of Intl. Covenant on Civil & Political Rights & Art. 21 :
Jolly George Verghese v. Bank of Cochin.
Right to have free legal aid to the accused at the State cost has been held to be
implicit in Art. 21. In Sunil Batra v. Delhi Admn., held the practice of keeping
under-trials with convicts in jails offends the test of fairness. The torture or use of
third degree method by police against an accused or under-trial is violative of Art.
21, per Sunil Batra (No. 2) v. Delhi Admn. In D.K. Basu v. State of W.B., held
any form of torture or cruel, inhuman or degrading treatment falls within the
inhibition of Art. 21. Speedy trial is also implicit in Art. 21, per Hussainara
Khatton (No. 1) v. State of Bihar. Furthermore, this right is available at all stages
of proceedings, i.e., investigation, enquiry, trial, appeal, revision & retrial.
In Charles Shobhraj v. Suptd. Central Jail, Tihar, held that prisoners also hv a no.
of rights which r included in the right to life. It means right to live with dignity.
Human dignity needs not to b lost even in prison setting. The treatment of a
human being, which offends human dignity, reduces the man to the level of
beast. Justice Krishna Iyer in Sunil Batra (No.1) obsvd., there is no iron-curtain
b/w the Constitution & the prisoners of this country; held that they r also entitled
to rights included in the right to life. Delay in execution of death sentence is also
violative of right u/Art. 21 & in such circumstances, death sentence may be
reduced to life imprisonment, per Triveniben v. State of Gujarat.
In Minerva Mills v. UOI, Art. 31C as amended by 42nd Amendment was
challenged on the ground that it destroys the basic feature of the Constn. The
SC struck down Art. 31C being unconstitutional. Thus, to give absolute primacy
to one over the other is to disturb the harmony of the Constitution, which is the
essential feature of the basic structure. The goals set out in Part IV have to be
achieved without the abrogation of the means provided by Part III. In Unni
Krishnan v. State of A.P., held that the FRs & DPSP r supplementary to each
other and the provisions in Part III should be interpreted having regard to the
Preamble & the DPSP.
In Bandhua Mukti Morcha v. UOI, held that though DPSP r nt enforceable by
courts, yet courts can’t direct legislature or executive to enforce them. Once a
legislation in pursuance of DPSP hs bn passed, courts can order the State to
enforce the law, particularly when non-enforcement of law leads to denial of FR.
Conclusion : DPSP hv bn drafted in flexible & general language & leave enough
leeway to various govts. in the country to frame their policies from time to time in
accordance with contemporary needs & circumstances to achieve the goals set
out therein. These have played a crucial role in legislative & administrative policy
making in the country. They have inspired the idea of socialist pattern of society.
While a no. of laws hs bn enacted to promote programmes & policies envisaged
by these DPSP, there has been failure of the administration by way of non-
administration, mal-administrative & mis-administration of these laws.
Introduction & Historical Background : The Directive Principles of State Policy
r guidelines to the Central and State Govts. of India to be kept in mind while
framing laws & policies. These r contained in Part IV (Art. 38 to 51) of the
Constitution of India & not enforceable by any court. The principles hv bn
inspired by the Directive Principles of the Constitution of Ireland. A Constitution
is not intended to be a static document in a developing society & its provisions
must lend themselves to meet the changing needs & requirements of a society.
The main idea is that they serve an educational purpose & might serve as
restraints on those who come in power. They could be held accountable for
ignoring them before the electorate if not before a court of law.
Now, we are living in an era of welfare state, which seeks to promote prosperity
& well-being of the people. The DPSP strengthen & promote this concept by
seeking to lay down some socio-economic goals which the Govt. has to strive to
achieve. The DPSP give directions to legislatures & executive in India as
regards the manner in which they should exercise their power. It shall be the
duty of the State to follow these principles both in the matter of administration as
well as in the making of laws.
Most of the DPSP aim at the establishment of economic & social democracy,
which is pledged for in the Preamble. The Preamble emphasizes that India
should be a socialist secular democratic republic, based on social, economic &
political justice. The Constitution-makers rightly perceived that political
democracy would be meaningless without economic justice. The DPSP,
therefore, spell out in greater detail the goal of economic democracy. Thus, they r
supplementary to the Preamble. They have played a crucial role in legislative &
administrative policy making in the country. They have inspired the idea of
socialist pattern of society.
Directive Principles & Fundamental Rights : The Constitution draws a
distinction b/w FRs & DPSP. The FRs r rights enforeable by legal action; while
DPSP r excluded from the purview of the courts. India has followed the plan of
the Irish Constitution. They r nt contained in USA Constitution.
Though the DPSP hv to run as subsidiary to the FRs, in determining the scope &
ambit of the rights & reasonableness of the restrictions imposed in exercise of
the rights, the court may not entirely ignore the DPSP, but should adopt the
principle of harmonious construction & should attempt to give effect to both as
much as possible, per Kerala Education Bill, 1957. But the DPSP can’t override
the provisions contained in Part III of the Constitution, per State of Madras v.
Champakam Dorairajan. Parts III & IV of the Constitution are supplementary to
each other, per Unni Krishan v. State of A.P. The sanction behind them is, in
fact, political. As Dr. Ambedkar observed in the Constituent Assembly, “If any
Govt. ignores them, they will certainly have to answer before the electorate at the
election time”. They impose positive obligations on the State. In course of time,
courts started giving some value to DPSP from a legal point of view. Where two
judicial choices r available, the construction in conformity with the social
philosophy in DPSP has preference. The courts also adopted the view that in
determining the scope & ambit of the FRs, the DPSP should not be completely
ignored & that the courts should adopt the principles of harmonious construction
& attempt to give effect to both as far as possible. Without making the DPSP
justiciable as such, the courts began to implement the values underlying them to
the extent possible.
The position before 1972 Amendment of the Constitution was that they were not
completely meaningless. However, the value of DPSP underwent a
metamorphosis. The first step was the enactment of Art. 31C which gave
primary importance to Art. 39(b), 39(c) & 31. The next step in the direction of
giving primacy to all the DPSP over the FRs was taken in 1976 when all DPSP
were given precedence over Art. 14, 19 & 31.
The State shall strive to promote the welfare of the people by securing &
protecting a social order. The 44th Amendment, 1978 widened the scope of Art.
38, which provided, “the State shall strive to minimize the inequalities in income
& endeavour to eliminate inequalities in status, facilities & opportunities, not only
amongst individuals, but also amongst groups of people residing in different
areas or engaged in different vocations”.
Principles of Policy to be followed by the State : Article 39 requires the State
to direct its policy towards securing :
(a) that the citizens, irrespective of sex, hv right to an adequate means
(b) that the ownership & control of the material resources are so
(c) that operation of the economic system does not result in the
(d) that there is equal pay for equal work for both men & women;
(e) that health & strength of workers, men & women & tender age of
of livelihood;
distributed as best to sub-serve the common good;
concentration of wealth to the common detriment;
(f) that children r given opportunities & facilities to develop in a healthy
children r not abused; that citizens r not forced by economic necessity
to enter avocations unsuited to their age or strength;
manner & that childhood & youth r protected against exploitation &
against moral & material abandonment.
Art. 39(b) & (c) r/w other relevant provisions contain the main objective of
building of a welfare society as also the egalitarian social order in the country.
The Constitution does not permit distinction b/w same class of workers. In
Hindustan Antibiotic v. Workmen, Art. 39(d) was judicially enforced & held that
equal pay for equal work was not a mere dogmatic slogan, but a goal attainable
through constitutional remedies & the enforcement of constitutional rights. In
Delhi Veterinary Association v. Union of Delhi, the SC laid down that the State
must pay equal pay for equal work & the pay structure of the employees of the
Govt. should also reflect many other social values.
In M.C. Mehta v. State of Tamil Nadu, held that in view of Article 39, the
employment of children within match factories directly connected with the
manufacturing process of the matches & fireworks can’t be allowed as it is
hazarduous. Children can, however, be employed in the process of packaging
but it should be done in area away from the place of manufacturing to avoid
exposure to accidents.
Free Legal Aid : Article 39A provides that the State shall secure that the
operation of the legal system promotes justice & shall provide free legal aid to
ensure that opportunities for securing justice are not denied to any citizen by
reason of economic or other disabilities.
In Hussainara Khatton & Ors. v. The Home Secretary State of Bihar (IV), the SC
observed that it is the constitutional right of every accused person unable to
engage a lawyer & secure legal service on a/c of reason such as poverty or
indigence, to have free legal services provided to him by the State, & the State is
under a constitutional mandate to provide a lawyer to such accused person if the
needs of justice so require. If free legal services are not provided to such an
accused, the trial itself may run risk of being vitiated as contravening Article 21.
In PUDR v. UOI, held that rule of law does not mean that the protection of law
must be available only to fortunate few, the poor too have civil & political right
though today it exists only on paper & not in reality.
In State of Maharashtra v. Manubhai Bagali Vachi, held that Art. 21 r/w Art. 39-A
casts a duty on the State to afford grants-in-aid to recognize private law colleges
& it can’t be whittled down in any manner either by pleading paucity of funds or
otherwise.
Village Panchayats : Art. 40 requires the State to take steps to organise village
panchayats to enable them to function as units of self-govt. & to produce
democracy at the grass roots. This provision doesn’t prescribe as to what
powers should be given to the panchayats or what their structure should be & so
the panchayat laws vary from one State to another.
Social Services : The State shall, within the limits of its economic capacity &
development, make effective provisions for securing the right to work, to
education & to public assistance in cases of unemployment, old age, sickness &
disablement, and in other cases of undeserved want. ‘Public assistance’ means
‘economic assistance’.
In Radhakrishna Mills v. S.I.T., held that Art. 41 places no disability on the State
to pay compensation to workers whose continuous employment has suffered as
a result of action on the part of the Govt. such as short supply of electricity. But
in Bennet Coleman v. UOI, observed that the duty to take effective steps to
educate the people within limits of its available economic resources includes
political education as well.
Conditions of Work : Art. 42 provides that the State shall make provision for
securing just & humane conditions of work & for maternity relief. In D.B.
Patanaik v. State of A.P. observed, DPSP (Art. 42) may benevolently be
extended to living conditions in jail.
Living Wage : Art. 43 requires that the State shall endeavour to secure govt.
cos. in public sector should not necessarily be different from cos. in private sector
as Arts. 39 & 43 would be disobeyed if distinction is made b/w the same class of
labourers on the ground that some of them are employed in state enterprises &
others in private enterprises.
Participation of Workers in Management of Industries : Art. 43A provides that
the State shall take steps to secure the participation of workers in the
management of undertakings, establishments or other organizations engaged in
any industry.
Uniform Civil Code : Art. 44 provides that the State shall endeavour to secure
for the citizens a uniform civil code throughout the territory of India. At present,
Hindus are governed by Hindu Law. Likewise, the Muslims are governed by
Mohammadan Law. As India has accepted the ideal of a secular State, this DP
seeks to replace the various systems of personal law by a uniform civil code. In
Mohd. Ahmad Khan v. Shah Bano, the SC observed, “A common civil code will
help the case of national integration by removing disparate loyalities to laws
which have conflicting ideologies.”
In Sarla Mudgal v. UOI, the SC directed the then PM to take fresh look at Art. 44,
which according to the SC, is imperative. But unfortunately, the Court while
hearing an appeal filed by one of the accused clarified that its direction was only
obiter dicta & not legally binding on the Govt.
Free & Compulsory Education for Children : Article 45 requires the State to
endeavour to provide, within ten years, for free & compulsory education for all
children until they complete the age of 14 years. Art. 45 is not confined to
primary education; it extends to providing free education upto an age of 14 years,
whatever the stage of education it may come to.
In Unnikrishan v. State of A.P., observed, ‘Right to Education’ means (a) every
child/citizen of this country has a right to free education until he completes 14
years, his right to education is circumscribed by the limits of the economic
capacity of the State & its development. Only Art. 45 speaks of a time. Art. 45
does not speak of the limits of its economic capacity & development as does Art.
41, which inter alia speaks of RTE.
Promotion of Educational and Economic Interests of Weaker Sections : Art.
46 obligates the State to promote with special care the educational & economic
interests of the weaker sections of the people, and, in particular, of SCs & STs &
to protect them from social injustice & all forms of exploitation.
Raising Standard of Living : The State is under an obligation to take measures
for raising standards of living. In Nashirwar v. State of MP, held dealing in liquor
can’t be regarded as ‘trade or business’ u/Art. 19(1)(g). Opium is a drug &
injurious to health. However, use of drugs for medicinal purposes has been
exempted, per Pritpal Singh v. Chief Comr.
Organisation of Agriculture & Animal Husbandry : U/Art. 48, the State shall
endeavour to organise agriculture & animal husbandry on modern & scientific
lines & shall take steps for preserving & improving the breeds and prohibiting the
slaughter of cows & calves. The directive for taking steps for preventing
slaughter of certain specified categories of animals is quite explicit & positive.
Protection of Wild Life : U/Art. 48A, the State shall endeavour to protect &
improve the environment & to safeguard forests & wild life of d country.
Protection of Monuments : Art. 49 obligates the State to protect every
monument or place or object of artistic or historic interest, declared to be of
national importance, from spoliation, disfigurement, destruction, removal,
disposal or export, as the case may be.
Separation of Judiciary from Executive : U/Art. 50, the State shall take steps
to separate judiciary from executive. In other words, judiciary be freed from
executive control. By & large, this goal has been achieved.
Promotion of International Peace : U/Art.51, State shall endeavour to –
(a) promote international peace & security;
(b) maintain just & honourable relations b/w nations;
(c) foster respect for intl. law & treaty obligations in the dealings of organised
people with one other; &
(d) encourage settlement of intl. disputes by arbitration.
Fundamental Duties : Rights & duties go together. The Constitution mentions
only the Rights, which r FRs. There r also DPSP, which again confer rights on
the citizens of India. Prior to 42nd Amendment of the Constitution, which came
into force on 01.02.1977, there was no provision in the Constitution dealing with
FDs of a citizen. Art. 51A does not contain provision for the enforcement of FDs.
The Swaran Committee suggested that the Parliament be empowered to impose
punishment for breach of FDs, which was, however, not accepted.
Enforcement by the State : Part IV contains a no. of human rights intended
to ensure socio-economic justice. Though they hv bn declared to be
fundamental in the governance of the country, yet they were not enforeable by
court. In the beginning, they did not receive the importance they deserved.
However, gradually they started getting importance. In re. Kerala Education Bill,
1957, held that an attempt must be made to harmonise the provisions of FRs
with DPSP as far as possible such as ‘equal pay for equal work’ has been held to
be a human right / FR.
It is not necessary that a right to be recognised as a human right is expressly
stated in Part III of the Constitution. New rights can be read into & inferred from
the rights stated in Part III. ‘Right to life’ has been held to include many
freedoms. In Maneka Gandhi v. UOI, held that the expression ‘personal liberty’
in Art. 21 is of the widest amplitude & it covers a variety of rights which go to
constitute the personal liberty of man & some of them hv bn raised to the distinct
human rights & given addl. protection. If a law deprives a person of personal
liberty & prescribes a procedure for that purpose within the meaning of Art. 21, it
has to stand the test of Art. 19 & 14. The procedure contemplated by Art. 21
must answer the test of reasonableness in order to be in conformity with Art. 14.
It must be right, just & fair – not arbitrary, fanciful or oppressive; otherwise there
shd b no procedure at all & requirement of Art. 21 wud nt b satisfied.
In Kharak Singh v. State of U.P., held that right to life means not only
continuance of a person’s animal existence but a right to be in possession of
each of his organ, his arms, legs, etc. This means something more than mere
survival of animal existence. Right to life includes the right to basic necessities of
life & the right to carry on such functions & activities as constitute the bare
minimum expression of human-self, per Francis Muller v. Union Territory of Delhi.
Now, it has become a reservoir of human rights & interpreted to include:
(i) right to privacy, Kharak Singh v. State of U.P., which covers tapping of
telephone, People’s Union of Civil Liberties v. UOI;
(ii) right to livelihood, Olga Tellis v. Bby. Municipal Corpn.; it includes better
standard of life, hygienic conditions in work place & leisure; & it ensures to
workmen health & medical care during & after service.
(iii) right to education, Unni Krishnan v. State of A.P.;
(iv) right to travel abroad, Satwant Singh v. Asstt. Passport Officer;
(v) right to envmntl. protection, Vellore Citizen Welfare Forum v. UOI;
(vi) right to shelter; U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing
Society Ltd.;
(vii) right to have pollution free air & water, Indian Council for Enviro Legal
Action v. UOI & M.C. Mehta v. UOI; and
(viii) bonded labour must be identified, released & suitably rehabilitated,
Bandhua Mukti Morcha v. UOI.
In Joginder Kr v. State of UP, held that right of arrested person upon arrest to hv
someone informed about his arrest & right to consult privately with lawyer r
inherent in Art. 21 & 22. The arrest & detention of an honest judgment debtor in
civil prison, who has no means to pay the debt, in absense of mala fide &
dishonesty, violated Art. 11 of Intl. Covenant on Civil & Political Rights & Art. 21 :
Jolly George Verghese v. Bank of Cochin.
Right to have free legal aid to the accused at the State cost has been held to be
implicit in Art. 21. In Sunil Batra v. Delhi Admn., held the practice of keeping
under-trials with convicts in jails offends the test of fairness. The torture or use of
third degree method by police against an accused or under-trial is violative of Art.
21, per Sunil Batra (No. 2) v. Delhi Admn. In D.K. Basu v. State of W.B., held
any form of torture or cruel, inhuman or degrading treatment falls within the
inhibition of Art. 21. Speedy trial is also implicit in Art. 21, per Hussainara
Khatton (No. 1) v. State of Bihar. Furthermore, this right is available at all stages
of proceedings, i.e., investigation, enquiry, trial, appeal, revision & retrial.
In Charles Shobhraj v. Suptd. Central Jail, Tihar, held that prisoners also hv a no.
of rights which r included in the right to life. It means right to live with dignity.
Human dignity needs not to b lost even in prison setting. The treatment of a
human being, which offends human dignity, reduces the man to the level of
beast. Justice Krishna Iyer in Sunil Batra (No.1) obsvd., there is no iron-curtain
b/w the Constitution & the prisoners of this country; held that they r also entitled
to rights included in the right to life. Delay in execution of death sentence is also
violative of right u/Art. 21 & in such circumstances, death sentence may be
reduced to life imprisonment, per Triveniben v. State of Gujarat.
In Minerva Mills v. UOI, Art. 31C as amended by 42nd Amendment was
challenged on the ground that it destroys the basic feature of the Constn. The
SC struck down Art. 31C being unconstitutional. Thus, to give absolute primacy
to one over the other is to disturb the harmony of the Constitution, which is the
essential feature of the basic structure. The goals set out in Part IV have to be
achieved without the abrogation of the means provided by Part III. In Unni
Krishnan v. State of A.P., held that the FRs & DPSP r supplementary to each
other and the provisions in Part III should be interpreted having regard to the
Preamble & the DPSP.
In Bandhua Mukti Morcha v. UOI, held that though DPSP r nt enforceable by
courts, yet courts can’t direct legislature or executive to enforce them. Once a
legislation in pursuance of DPSP hs bn passed, courts can order the State to
enforce the law, particularly when non-enforcement of law leads to denial of FR.
Conclusion : DPSP hv bn drafted in flexible & general language & leave enough
leeway to various govts. in the country to frame their policies from time to time in
accordance with contemporary needs & circumstances to achieve the goals set
out therein. These have played a crucial role in legislative & administrative policy
making in the country. They have inspired the idea of socialist pattern of society.
While a no. of laws hs bn enacted to promote programmes & policies envisaged
by these DPSP, there has been failure of the administration by way of non-
administration, mal-administrative & mis-administration of these laws.
Fundamental Duties
Fundamental Duties
The new part which consists of only one Art. 51-A was added to the
constitution by the 42nd Amendment, 1976. This Article for the first time
specifies a code of ten fundamental duties for citizens. Art. 51-A says that it
shall be the duty of every citizen of India:
(a) To abide by constitution and respect its ideals and institutions, the National
Flag and National Anthem;
(b) To cherish and follow the noble ideals which inspired our national struggle
for freedom;
(c) To uphold and protect and sovereignty, unity and integrity of India;
(d) To defend the country and render national service when called upon to do
so;
(e) 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;
(f) To value and preserve the right heritage of our composite nature;
(g) To protect and improve the natural environment including forests, lakes,
rivers and wild life, and to have compassion for living creature;
(h) To develop the scientific temper, humanism and the spirit of inquiry and
reform;
(i) To safeguard public property and to abjure violence;
(j) To strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels of endeavour and
achievements.
The constitution (86th amendment) Act, 2002 has added a new clause (k) to Art.
51-A which provides “who is parent or guardian to provide opportunities for
education to his child or as the case be, ward between the age of six and
fourteen years”.
Needs for Fundamental Duties:- Rights and duties are correlative. The
Fundamental Duties are, therefore, indeed to serve as a constant reminder to
every citizen that while the Constitution specifically conferred on them certain
Fundamental Rights, it also requires citizens to observe certain basic norms of
democratic conduct and democratic behaviour. It was claimed by the ruling
party the congress, that what the framers failed to do was being done now. The
omission is being rectified by providing a chapter on citizen’s duties. It was
argued that in India people lay emphasis only on rights and not on duties.
It is submitted that this view is wrong. The performance of one’s duties even in
partial disregard of one’s rights and privileges has been traditional in this
country. Since time immemorial the emphasis in Indian society in accordance
with the dictates of the ancient scriptures has been on the individual’s
“Kartavya”, this is,performance of one’s duties towards society, the country and
especially towards one’s parents. The Gita and Ramayana enjoin people to
perform their duties without caring for their rights or fruits.
These traditional duties have been given constitutional sanction. “If one takes
care to see, he will discover in the constitution not only his rights but also his
duties. A look at the constitution will also thus answer the complaint of some
persons that constitution has conferred rights on the individual but has not set
out the duties of the individuals towards the society. The Preamble of the
Constitution secures to all the citizens: “liberty of thought, expression, belief,
faith and worship.” These are fundamental rights of the citizens. The rest of the
Preamble emphasises only the duties, “justice, socio economic and political”. In
addition to this, the fundamental rights guaranteed by the Constitution are not
absolute rights. The state is empowered to impose reasonable restriction and
curtail these rights in the interest of society. Restitutions may sometimes
amount to prohibition.
Enforcement of Duties:-the duties incorporated in the constitution by the 42nd
Amendment are statutory duties and shall be enforceable by law. Parliament, by
law, will provide penalties to be imposed for failure to fulfil those duties and
obligations. The success of this provision would, however, depend much upon
the manner in which and the person against whom these duties would be
enforced.
For the proper enforcement of duties, it is necessary that it should be known to
all. Most of the people of this country are illiterate and not politically conscious
what they owe to society and country. Homes, universities, officers and their
places of work should all be made centres for imparting in the performance of
their obligations.
In M.C.Mehtavs Union of India: (1983) 1 SCC 471, the SC has held that
u/Art. 51-A(g) it is the duty of the central government to introduce compulsory
teaching of lessons at least for one hour in a week on protection and
improvement of natural environment in all the educational institutions of the
country. It directed the central government to get textbooks written on that
subject and distribute them on the educational institutions free of cost. In order
to rouse amongst the people, the consciousness of cleanliness of environment, it
suggested the desirability of organising, keep the city clean week, keep the
town clean, keep the village clean week, in every city, town and village
throughout India atleast once in a year.
Fundamental Duties- An aid to interpretation of Constitutional provisions
In AIIMS Students Union vs AIIMS: AIR 2001 SC 3262, speaking about the
importance of fundamental duties enshrined in Art. 51-A while striking down
the institutional reservation of 33% in AIIMS coupled with 50% reservation
discipline wise as violative of Art. 14 of the Constitution, the SC said they are
equally important like fundamental rights but it cannot overlook as “duties” in
para IV A is prefixed by the same word “fundamental” which was prefixed by
the founding fathers of the Constitution to “right” in para III.
In Aruna Roy vs Union Of India: AIR 2002 SC 3176, the validity of national
Curriculum framework for school education was challenged on the ground that
it was violative of Art.28 of the constitution and anti-secular. It provides
imparting of value development education relating to basic of all religions. The
court held, that the NCFSF does not mention of imparting “religious
instructions” as prohibited u/Art. 28.
Accordingly the court held that such education is neither violative of Art. 28 of
the Constitution nor is against the concept of secularism.
2. Parliamentary Privileges
The privileges of the parliament and its members are such conventions and
practices which evolved in England as a consequence of the constant struggle
which the Commons had to put against the Crown, the Country and the Lords.
These have been described by the English Authorities in constitution as the
important part of the law and custom of the parliament of English. In English,
conventions have developed adequately and whenever we in India, fail to find a
solution of a problem arising in our Parliament in this respect, we have a look at
the conventions in England for that purposes. So far, the conventions have not
developed to that extent and adequate provisions have also not been made in
this regard in the constitution itself.
According to May, the parliamentary privileges are defined as, “some of the
peculiar rights enjoyed by each house collectively as a constituent part of the
parliament and by the members of each house individually without which they
could at discharge their functions and which exceed those possessed by other
bodies or individuals”
Parliamentary Privileges or the legislative privileges connote certain rights
occurring to each house of Parliament collectively and also to members
individuality without which it would not be possible to maintain either
independence of action or the dignity and efficiency of a sovereign legislature.
Art 105 and 194 of the constitution of India related to the privileges, powers
and immunities of Parliament and its members and the state legislature and their
members respectively.
Privileges are attached not only to House collectively but even to individual
members of the House, the reason being that no house can function effectively
unless its members functions effectively and without any interference from any
quarter. Privileges are conferred on a House so that it may vindicate its
authority, prestige and power and protect its members from any molestation or
obstruction in the performance of their functions as members of their House.
Privileges of a legislature exist mainly for its protection and maintenance of its
independence and dignity.
The privileges of a House have two aspects – (i) external and (ii) internal.
They refrain anybody from outside the House to interfere with its working. This
means that the freedom of speech and action of outsiders are limited to some
extent. The privileges also restrain the members from doing something which
may amount to an abuse of their position.
The Indian Constitution – makers appreciated the need to confer certain
privileges to the legislature in India. The Constitutions does not however,
exhaustively enumerate the legislative privileges. It specifically defines only a
few privileges but the rest of the privileges – of the legislatures in India shall be
those which were enjoyed by the House of Commons on the date of
constitution. The ideas was to confer on the legislatures in India very broad
privileges, as broad as widest privileges as compared to any other legislatures in
the world.
The relevant provisions in the Constitution defining legislative privileges are
Art. 105 and 194. Art. 105 relates to parliament while Art. 194 relates to the
state legislatures. Both these provisions are couched practically in similar
language and therefore, any discussion on Art. 105 will apply mutates to Art.
194. Art. 105 as it stood prior to the Constitution ( 42nd amendment) Act, 1976,
ran as follows:
(i) Subject to the provisions of this Constitution and rules, and standing
(ii) No member of parliament shall be liable to any proceedings in any court
(iii) In other respects, the powers privileges and immunities of each House of
(iv) The provisions of clause (1), (2) and (3) shall apply in relation to person
orders regulating the procedure of parliament, there shall be freedom of
speech in Parliament.
in respect of any things said or any vote given by him in parliament or
any committee thereof, and no person shall be so liable in respect of the
publication by or under the authority of either House of Parliament any
report, papers, votes or proceedings.
Parliament and of the members and the committees of each House, shall
be such as many from time to time be defined by Parliament by Law, and
until so defined, shall be those of the House of Commons of the
Parliament, of the United Kingdom, and of its members and committees,
at the commencement of this Constitution.
who by virtue of this Constitution have the right to speak in and
otherwise to take part in the proceedings of, a House of Parliament or any
committee therefore as they apply in relation to members of Parliament.
3. Parliamentary privileges and fundamental rights
There has been some confusion on the question whether the fundamental rights
control in any way the privileges which the house enjoy u/Art. 105 (3) and which
is to prevail in case of a conflict between such a privilege and fundamental rights.
In GunupativsNafisul Hassan: AIR 1954 SC 836, the SC ordered the release of
the editor of “Bitz”, arrested on a charge of contempt of the House under the
speaker’s warrant, on the ground that he had not been produced before a legislature
within 24 hrs of his arrest as required by Art. 22(2) of the Constitution. This
created the impression that the fundamental rights would control parliamentary
privileges. In the Searchlight case i.e., M.S.M. Sharma vsSinha: AIR 1959 SC
395, the SC held by majority that the privileges enjoyed by a House of Parliament
u/Art. 105(3) were not subject to Art. 19(1)(a) and therefore, a House was entitled
to prohibition contravenes the fundamental rights of speech and expression u/Art.
19(1).Gunupati was held not binding as it was not a considered opinion on the
subject. The court observed that Art. 105(3) was not declared to be “subject to the
constitution”, and therefore, it was as supreme as provision of the constitution
including the fundamental right. Any inconsistency between Art. 105(3) which was
of a special nature.Though the court in searchlight was concerned specifically with
the question of applicability of Art. 19(1)(a) to the area of legislative privileges, an
impression got around, because of certain observations made by the court and the
way in which court treated the earlier case of Gunupati that, perhaps all
fundamental rights were so applicable. Reconsidering the question of mutual
relationship between the fundamental rights and legislative privileges in Keshav
Singhcase: AIR 1965 SC 745, the SC held that the searchlight case excluded only
Art. 19(1)(a) and not other fundamental rights, from controlling parliamentary
privileges. It held that Art. 21 would apply to parliamentary privileges and a person
would be free to come to the court for a writ of habeas corpus on the ground that
he had been deprived of his personal liberty not in accordance with law but for
capricious or mala fide reason. The court open the question whether any other
fundamental right would apply to legislative privileges as it was not pertinent to
the issue in hand later disposing of the keshav Singh case (Keshavsinghvs Speaker
Legislative Assembly: AIR 1965 All. 349), the Allahabad HC held that when the
legislature acted under the rules framed by it laying down the procedure for
enforcing its powers to commit for contempt, that would be compliance of Art. 231
requiring procedure to be laid down by law for deprivation of personal liberty. It
was also held that Art. 22(2)has no application when a person has been adjudged
guilty of contempt of the House and has been detained in pursuance of such an
adjudication. Thus, the position appears to be that it is wrong to suppose that no
fundamental right, applies to the area of legislative privileges. Some fundamental
rights like Art. 19(1)(a) do apply. Perhaps Art.21 do apply, while the position with
regard to others, e.g. Art. 22(1) & 22(2) is not clear. There is, however, no doubt
that if parliament were to act, would not be free from controlling effect of the
fundamental right. Such provisions of the law as contravene fundamental rights
would be invalid (G. SubraManiumvs Speaker Legilative Assembly: AIR 1969
Mad. 10).
4. Directive Principles of State Policy
Introduction:-part IV of the constitution contains, certain principles called
Directive Principle, which are fundamental in the governance of the country and
the state is under duty to apply these principles in making law, although they are
not enforceable by court. This novel feature of the constitution is borrowed from
the constitution of Ireland, which had copied it from the Spanish Constitution.
Ivor Jennings calls it was the “Philosophy of Fabian Socialism”. According to
G.N. Joshi, the part IV of the constitution, containing, DPSP, “constitutes a very
comprehensive political, social & economic programme for a modern Democratic
State.”
At one time it was thought that the state was mainly concerned with the
maintenance of law and order and the protection of life, liberty and property of the
subject. Such a restrictive role of the state is no longer a valid concept, today we
are living in an era of a welfare state, which has to promote the prosperity and
well-being of the people. The Directive Principles lay down certain economic and
social policies to be pursued by the various governments in India; they impose
certain obligation on the state to take positive action in certain directions in order
to promote the welfare of the people and achieve economic democracy.
Underlying object behind the Directive Principle:-the Directive Principles aare the
ideals, which the Union and the State Governments must keep in mind while they
formulate policy or pass a law. They lay down certain social, economic and
political principles, suitable to peculiar conditions prevailing in India.
Classification of the Directives:- The Directives may be classified in to the
following groups:
(A) Social and Economic Charter
1. Social order based on justice: Art. 38(1) provides that the state shall
strive to promote the welfare of the people by securing and protecting a
social, economic and political justice.
Art. 38(2) further elaborated the state’s duty inserted by the 44th
Amendment. 44th Amendment provides that the state shall, in particular,
strive to minimise inequalities in income and endeavour to
eliminateinequalities in status, facilities and opportunities, not only
amongst individuals but also amongst groups of people residing in
different area or engaged in different vocations. The new clause aims at
equality in all spheres of life. It would enable the state to have a national
policy on wages and eliminate inequalities in various spheres of life.
2. Principles of policy, to be followed by the state for securing economic
justice: Art. 39 directs the state to secure:
(a) Equal right of men and women to adequate means of livelihood.
(b) Distribution of ownership and control of the material resources of the
(c) To ensure that the economic system should not result in concentration
(d) Equal pay for equal work for both men and women.
(e) To protect health and strength of workers and tender age of children
community to the common good.
of wealth and means of production to the common detriment.
(f) That children are given opportunities and facilities to develop in a
and to ensure that they are not forced by economic necessity to enter
avocations unsuited to their age or strength.
healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and against
moral and material abandonment.
Clause (f) was modified by the Constitution (42nd Amendment) Act,
1976, with a view to emphasis the constructive role of the state with
regard to the children. Distributive justice is common aim of Art. 38 &
39. They propose to promote equality in wider import and create
circumstances to avoid injustice at the social and economic levels. In
M.C.Mehtavs State of Tamil Nadu: (1991) 1 SCC 283,it has been held
that in view of Art. 39 the employment of children within the match
factories directly connected with the manufacturing process of matches
and fireworks cannot be allowed as it is hazardous. Children can,
however, be employed in the process of packing but it should be done in
area away from the place of manufacturing to avoid exposure to
accidents.
In an another landmark judgment in M.C.MehtavsStae of Tamil Nadu:
AIR 1997 SC 699, known as (child labour abolition case) a three judges
bench of the SC has held that children below the age of 14 cannot be
employed in any hazardous industry, or mines or other work.
Equal pay for equalwork: Pursuant to Art. 39(d) Parliament has enacted
the Equal Remuneration Act, 1976. The directive contained Art. 39(d)
and the Act passed thereto can be judicially enforceable, by the court. In
Randhir Singh vs UOI: AIR 1982 SC 879, the SC has held that the
principle of “Equal pay for equal work though not a fundamental right” is
certainly a constitutional goal and, therefore, capable of enforcement
through constitutional remedies u/Art. 32 of the constitution. The
doctrine of equal pay for equal work is equally applicable to persons
employed on daily wages basis. They are also entitled to the same wages
as other permanent employees in the department employed to do the
identical work.
In State of Haryana vsRajpal Sharma, AIR 1997 SC 449, it has been
held that the teachers employed in privately managed aided schools in
State of Haryana are entitled to the Salary and dearness allowance as is
paid to teachers employed in Government schools.
(B) Social Security Charter
1. Equal justice and free legal aid Art. 39A
2. Right to work, education and public assistance
in certain cases. Art. 41
Resultantly the SC declared in Mohini Jain case
that the right to education be equated with a fundamental
right and it should be read to the Art. 21, because
the right to life means a dignified life which has
no meaning without education.
3. Just and human conditions of work Art. 42
4. Living wage for workers Art. 43
5. Participation of workers in management Art. 43A
6. Provision for early childhood care and education Art. 45
7. Promotion of educational and economic interest Art. 46
8. Duty of the stage to raise the level of nutrition Art. 47
of industries.
to children below the age of six years
of SCs and STs and other weaker section
and the standard of living and improvement of
public health.
In HussainaraKhatoonvs State of Bihar: AIR 1979 SC 1369, the SC held that
right to free legal right is essential ingredient of “reasonable fair & just” procedure
and implicit in guarantee of Art. 21. This is the constitutional right of every
accused person who is unable to engage lawyer due to poverty. The state is under
mandate to provide a lawyer to an accused person if the circumstances of the case
and needs of justice so require, provided, of course, the accused person does not
object to the provision of such lawyer.
In a notable judgment in State of Maharashtra vsManubhaiBagajiVashi: (1995) 5
SCC 730, the SC has held that Art 21 read with Art. 39-A casts a duty on the state
to afford grants in aid to recognised private law colleges, similar to other facilities,
which qualify for receipt of the grant. The aforesaid duty cast on the state cannot
be whittled down in any manner, either by pleading paucity of funds or otherwise.
The right to free legal aid and speedy trial are guaranteed fundamental rights u/Art.
21. Art. 39-A provides “equal justice” and “free legal aid”. The state shall secure
that the operation of the system promotes justice.
( C) Community Welfare Charter
1. Uniform Civil Code: Art. 44 requires the state to secure for the citizens a
uniform civil code throughout the territory of India.
In a historic judgment in SarlaMudgalvs UOI: (1995) 3 SCC 635, SC has
directed the Prime Minister NarsimhaRao to take fresh look at Art. 44 of the
Constitution which enjoins the state to secure a uniform civil code which,
accordingly to the court is imperative for both protection of the oppressed
and promotion of national unity and integrity. The court directed the Union
Government through the Secretary to Ministry of Law and Justice, to file an
affidavit by August 1995 indicating the steps taken and efforts made, by the
government, towards securing a uniform civil code for the citizens of India.
The above direction was given by the court while dealing with case where
the question for consideration was whether a Hindu husband under Hindu
Law, after conversation to Islam, without dissolving the first marriage, can
solemnise a second marriage. The court has held that such a marriage will be
illegal and the husband can be prosecuted for bigamy u/s. 494 of IPC. Court
further held that a Hindu Marriage continues to exist even after one of the
spouse converted to Islam. There is no automatic dissolution of Hindu
Marriage. It can on be dissolved by a decree of divorce on any of the
grounds mentioned in section 13of the Hindu Marriage Act. Accordingly,
the court held that the second marriage of Hindu after his conversion to
Islam was void in terms of section 494 IPC and the husband was liable to be
prosecuted for bigamy.
As regards the question of “Uniform Civil Code” the Division bench(Kuldip
Singh And R.M. Sahai, JJ.) in their separate but concurrent judgements said
that since 1950 a number of Governments have come and gone but they have
failed to make any efforts towards implementing the constitutional mandate
u/Art. 44 of the constitution. Consequently, the problem today is that many
Hindus have changed their religion and have converted to Islam only for the
purpose of escaping the consequence of bigamy. This is so because Muslim
law permits more than one wife and to the extent of four. Kuldip Singh, J.,
said that Art. 44 is based on the concept that there is no necessary
connection between religion and personal law in a civilized society.
Marriage, succession and like matters are of a secular nature and therefore,
they can be guaranteed by law. No religion permits deliberate distortion, the
judges declared. Much apprehension prevails about bigamy in Islam itself.
In many Islamic countries as in Syria, Tunisia, Morocco, Pakistan, Iran and
other Islamic countries have codified their personal law to check its abuse.
This judgment of the court has aroused the hope that one of the greatest evil
of Indian Society will be removed. But unfortunately the court, while
hearing an appeal filed by one of the accused in the above case, clarified that
its direction was only an obiter dicta and not legally binding on the
government. This clarification was given by Mr. Justice Kuldip Singh who
had directed the government to take immediate steps for implementing the
mandate of Art. 44 of the constitution. Even before the clarification of the
court the Prime Minister had told to the Muslim Ulemas of Rampur, U.P.
that his government would not implement the constitutional mandate u/Art.
44 of the constitution.
2. Organisation of agriculture and animal husbandry: Art. 48 directs the
state to take steps to organise agriculture and animal husbandry on modern
and scientific lines. In particular, it should take steps for preserving and
improving the breeds, and prohibiting the slaughter of cows and calves and
other milk and draught cattle.
3. Protection and improvement of forests and wild life: Art. 48-A requires
the state to take steps to protect and improve the environment and to
safeguard the forests and wild life of the country. In M.C. Mehta (II) vs
UOI: (1988) 1 SCC 471, the SC, relying on Art. 48-A gave directions to the
central and the state governments and various local bodies and Boards under
the various statutes to take appropriate steps for the prevention and control
of pollution of water.
4. Protection of monuments and places and objects of national
importance: Art. 49 requires the state to protect every monument or place
or object of artistic or historic interest (declared by law or under law made
by parliament) to be of national importance from spoliation, disfigurement,
destruction, removal, disposal or export. Pursuant to this, parliament has
enacted the Ancient and Historical Monuments and Archaeological Sites and
Remains (Declaration of National Importance) Act, 1951.
5. Separation of Judiciary from Executive: Art. 50 requires the state to take
steps to separate the Judiciary from the Executive in the public services of
the state. To promote the rule of law, this is very essential.
6. Promotion of International peace and security: Art. 51 provides that the
state should strive to (a) promote international peace and security; (b)
maintain just and honourable relations between nations; (c) foster respect for
international law and treaty obligations in the dealings of organised peoples
with one another; and (d) encourage settlement of international disputes by
arbitration.
The Protection of Human Rights Act, 1993: Pursuant to the direction
enshrined in Art. 51 of the constitution and International Commitments,
Parliament has passed the Protection of Human Rights Act, 1993. The Act
provides for the setting of a National Human Rights Commission and
Human Rights courts to meet the growing concern for human rights in the
country and abroad. Similar commission may be set up in the state also.
7. Organisation of village Panchayats Art. 40: The object of this Article is to
introduce democracy at the grass root level.
Implementation of the Directive Principles
As we know, the Directive Principles do not enjoy judicial sanctions as is
the case with fundamental rights. Thus, the implementation of these
principles depends upon the sweet will and available resources of the state.
However, since these principles aim at the establishment of a welfare state of
India, the successive governments have adopted measures to implement
them through separate legislative measures.
The constitution has been amended, successively (eg. 1st, 4th, 17th, 24th, 25th,
42nd. 44th amendments) to modify those fundamental rights by reason of
whose existence the state was experiencing difficulty in effective agrarian,
economic and social reforms which are envisaged by the directive principles.
The unspectacular implementation of the directive principles is mainly on
account of the resource crush and lack of political will or foresight. Poverty,
eradication, education, betterment of the backward classes conditions are a
few areas where the directives have particularly failed to show results.
Though implementation has been far from satisfactory, the state is showing
genuine will to implement the directive principles. In electoral politics, no
government may with impunity, ignore welfare-politics with regard to public
health, education, economic equality, position of women, children and
backward classes. In totality the directive principles operate well in the
planning process, but still have not been fully translated into action. It
cannot be denied that various governments have put in some efforts in this
direction.
The directive in Art. 39(b) has influenced legislators to fix land ceilings,
remove intermediaries such as zamindar, abolish hereditary proprietors, etc.
and made the tiller of the soil real owners of the land. The enactment of the
Hindu Succession Act (1950) have been important steps to implement the
directive principles of Uniform Civil Code.
In order to raise the standard of the poor particularly in rural areas as
prescribed in Art. 47, the government of India has launched various schemes
such as community development programme of 1952, IRDP, Drought Prone
Area Programme, Desert Development Programme and National Rural
Employment Guarantee Programme.
Difference/Relationship between DPSP and Fundamental Rights
The relationship or difference between DPSP and fundamental rights are as
follows:
1. The directive principles cannot be enforced by the courts; they are
declaratory while fundamental rights are enforced by the courts; they are
mandatory.
2. The directive principles and instrument of institutions of the government
while the fundamental rights are limitation upon the state actions.
3. The directive principles contains positive commands to the state to
promote a social and welfare state while the fundamental rights contain
negative injunctions to the state no to do various things.
4. The directive principles set the guidelines, for achieving socialistic goals
through democratic methods while the fundamental rights guarantees
some basic rights to individuals.
5. The directive principles are required to be implemented by legislation;
while fundamental rights are not required to be implemented by
legislation.
6. 25ht amendment 1971 added Art. 31-C in the constitution; which
provided that a law for implementing directives contained in Art. 39(b)
and (c) could not be struck down on the ground that it contravened rights
conferred by Art. 14, 19 or 31.
7. 42nd amendment, 1976 widened the scope of Art. 31-C so as to cover all
directive principles. Thus it gave precedence to all the directive principles
over the fundamental right contained u/Art. 14, 19 or 31. However, this
portion of 42nd amendment was struck down by SC in Minerva Millsvs
UOI. Thus, it is inoperative now.
The leading cases on the relationship between the fundamental rights and the
DPSP are as follows:
1. State of Madras vsChampakamDorairajan, AIR 1951 SC 228: in this
case the order of Madras government was challenged; which fixed quotas
for admission to medical and engineering colleges for different
communities. The government contended that the order was passed u/Art.
46 of the constitution.
The court held that, “the DPSP have to conform and run as subsidiary to
the chapter of fundamental rights”, because the latter are enforceable in
the principles cannot override the fundamental rights. The court held that
the order of Madras Court was valid.
2. In RE Kerala Education Bill, AIR 1957 SC 956, the court observed
that though the directive principles cannot override the fundamental
rights, nevertheless in determining the scope and ambit of rights the court
may adopt the principles of harmonious construction and should attempt
to give effect to both as much as possible.
3. Keshava Nanda Bharativs State of Kerala, AIR 1973 SC 1461: In this
case, insertion of Art. 31-C was questioned. The SC by 7-6 majority
overruled the Golaknath’s case which denied parliament the power to
amend fundamental rights of citizens. The court observed that the
fundamental rights and the DPSP are meant to supplement one another. It
can well be said that the directives prescribed the goal to be attained and
fundamental rights laid down the means by which the goal is to be
achieved.
Supporting the amendments Mathew J. explain the importance of the
DPSP, thus:
“I think there are right which are inherent in human beings
because they are human beings whether you call them natural
rights or by some other application is immaterial. As the
preamble indicates, it was to secure the basic human rights like
liberty and equality that the people gave into themselves the
constitution and these basic rights are essential features of the
constitution; the constitution was also enacted by the people to
secure justice – political, social and economic. Therefore, the
moral rights embodied in part IV of the constitution are equally
an essential feature of it, the only difference being that the moral
rights embodied in part IV are not enforceable as against the
state be a citizen in a court of law in case state fails to
implement its duty, but nevertheless they are fundamental in the
governance of the country and all the organs of the state
including the judiciary, are bound to enforce those directives.
The fundamental rights themselves have no fixed content most of
them are mere empty vessels into which each generation must
pour its content in the light of its experience. Restriction,
abridgement, curtailment and even abrogation of these rights in
circumstances not visualized by the constitution-makers might
become necessary.”
Delivering the leading majority judgment Sikri C.J. said, “ the
expression amendment of constitution” in Art. 368 means any change
in any of the provisions of constitution within the broad contours of
the preamble and the constitution to carry out the objectives in the
preamble and the directive principles, applied to fundamental rights
also. It would mean that while fundamental rights cannot be
abrogated, reasonable abridgement of fundamental rights can be
affected in the public interest.
The Chief Justice said, “if this meaning is to be given, it would
enable parliament to adjust fundamental rights in order to secure what
the directive principles direct to be accomplished, while maintaining
the freedom and dignity of every citizen.
4. Minerva Millsvs UOI, AIR 1980 SC 1789: In this case, Art. 31-C as
amended by 42nd amendment was challenged on the ground that it
destroys the “basic features” of the constitution. The SC struck down
Art. 31-C as amendment by 42nd amendment as unconstitutional.
The majority observed that the constitution is founded on the bed rock
of the balance between part III and IV. To give absolute primacy to
one over the other is to disturb the harmony of the constitution, which
is the essential feature of the basic structure. The goals set out in Part
IV have to be achieved without the abrogation of the means provided
by part III.
5. State of Tamil Nadu vs Abu KavurBai, AIR 1984 SC 626: In this
case the SC held that although the directive principles are not
enforceable yet the court should make a real attempt at harmonizing
and reconciling the directive principles and the fundamental rights
and any collision between the two should be avoided as far as
possible.
6. BandhuaMuktiMorchavs UOI, AIR 1984 SC 802: In this case, the
SC has held that although the directive principles are enforceable by
the court and the courts cannot direct the legislature or executive to
enforce them, once a legislation in pursuance of them has been
7. Unni Krishna vs State of A.P., [1993 (1) SCC 645]: In this case, the
passed, the courts can order the state to enforce the law, particularly
when no-enforcement of law leads to denial of a fundamental right.
SC held that the fundamental rights and directive principles are
supplementary and complementary to each other and the provisions in
part III should be interpreted having regard to the preamble and
directive principles.
5. Rights of the Minorities
There are many theocratic countries where equal rights are not extended toall of
its citizens. They have categorized citizens according to their believes. The
rights are also attached differently, we must thank the fathers of our constitution
who envisioned equal rights to all citizens and added special rights to Religious
and Linguistic Minorities. The Indian constitution guarantees equal rights to all
its citizens, violation of which by the State or Central Government can be
challenged in the High Court or Supreme Court as per the Article 32 of the
Constitution, such cases are taken up with utmost urgency. Article 14 of the
constitution states that, ‘the State shall not deny to any pers on equality before
the law or the equal protection of the laws within territory of India.’
It gives equal status to all citizens in freedom and dignity. It further makes clear
in Article 15, ‘the state shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth, or any of them, and it offers,
‘equal access to public facilities.’ The 93rd amendment added a new clause -
Clause 5 - to Article 15. This enables the enactment of laws, makingspecial
provisions for the socially and educationally backward classes, theScheduled
Castes and the Scheduled Tribes in educational institutions including private
educational institutions, except in minority institutions.
It is good to understand the Directive Principles and Fundamental Rights.
‘Fundamental rights are legally enforceable and guaranteed rights but directive
principles are not enforceable in any court of law. But under article 31-C, a DP
may be framed as law even if it abridges fundamental rights. The 42nd
amendment act allowed DPs to usurp FPs.’ Therefore the reservation policy is a
directive principle and it can be formulated as per the requirements. It makes
clear that the policy on reservation is a directive principle to help asocially
week entity to become better.
The constitution positively undermined the division of opportunities on the
basis of birth to any particular entity. It provides equal opportunities in
employments which is made clear in Article 16 ‘there shall be equality of
opportunity for all citizens in matters relating to employment or appointment to
any office under the state’. It also spells out in clear terms that, ‘no citizen shall
on grounds only of religion, race, caste, sex, descent, place of birth, resident or
any of them be ineligible for or discriminated against in any respect of any
employment or office under the State.’ It is also to be noted that the constitution
provides an additional provision to the government to enact laws to make sure
that no section of thesociety is left out. The Article 16(4) point out that
‘Nothing in this article shall prevent the State from making any provision for
the reservation of posts in favour of any backward class of citizens, which in
the opinion of state is not adequately represented in the services under the
state’. The constitution has not defined in clear terms what does it mean by
backwardness and how do we determine the backwardness. It has definitely
raised questions.
Education is seen as the only means to progress for an individual and society at
large. So the Article 29 states that ‘no citizen shall be denied admission into
any educational institution maintained by the State or receiving aid out of the
State funds on ground only of religion, race, caste, language, or any of them.’ It
gives a feeling that unaided educational institutions does not bind by this
Article. But opportunity is equally distributed to all.
The constitution of India is very clear in terms of Minority rights. The Indian
Constitution very well protects the minorities and it provides opportunity to
develop to its fullness. The recent communal clashesand accusations on
Minorities raises a question that whether the constitutionalrights are exercised
well? There is no political will or leadership to pursue the cause of the Minority
Community.
The Constitution nowhere defines the terms 'minority', nor does it lay down
sufficient indicia to the test for determination of a group as minority.
Confronted, perhaps, with the fact that the concept of minority, lie its problem,
was intercalate, the framers made no efforts to bring it within the confines of a
formulation. Even in the face of doubts being expressed over the advisability of
leaving vague justiciable rights to undefined minorities, the members of the
Constituent Assembly made no attempt to define the term while article 23 of
the Draft Constitution, corresponding to present articles 29 and 30, was being
debated, and, presumably left it to the wisdom of the courts to supply the
omission.
However, as the following would show, the opinions of the courts on the first
question appear to be the result of a half-hearted attempt, and, only indicate the
futility of depending on them in any search for an answer to the second
question.
What is a Minority? The word minority has not been defined in the
Constitution. The Motilal Nehru Report (1928) showed a prominent desire to
afford protection to minorities, but did not define the expression. The Sapru
Report (1945) also proposed, inter alia, a Minorities Commission but did not
define Minority. The U.N. Sub-Commission on Prevention of Discrimination
and Protection of Minorities has defined minority as under:
1) The term 'minority' includes only those non-documents group of the
population which possess and wish to preserve stable ethnic, religious or
linguistic traditions or characteristics markedly different from those of the rest
of the population;
2) Such minorities should properly include the number of persons sufficient by
themselves to preserve such traditions or characteristics; and
3) Such minorities should be loyal to the state of which they are nationals.
The initial courtroom attempt to answer the first question was made in In re
Education Bill where the Supreme Court, through S.R. Das C.J., suggesting the
techniques of arithmetic tabulation, held that the minority means a "community,
which is numerically less than 50 percent" of the total population. This
statistical criterion prevail with the Kerela High Court also which, in
A.M.Patroni v. Kesavan , defined minority to mean the same thing as it meant
to the Supreme Court.
The 'definition' refers to group of individual who are particularly smaller as the
majority in a defined area. It however does not indicate as to what factor of
distinction, subjective or objective are to be taken as the test for distinguishing
a group from the rest. Thus, while considering 'minority', a numerically smaller
group, as against the majority in a defined area, some place emphasis upon
certain characteristics commonly possessed by the members constituting the
minority and, to them, these characteristics serves as objective factors of
distinction. In this sense the term used to cover "racial, religious or linguistic
sections of the population within a State which differ in these respects from the
majority of the population."
Minority in other sense also means, a group constituting a minority group have
a feeling of belonging to one common unit, a sense of akinness or community,
which distinguishes from those belonging to the majority of the inhabitants.
They are "group held together by ties of common descent, language or religious
faith and feeling themselves different in these respects from the majority of the
inhabitants of the given political entity." There are also those who define
minority in terms of relationship between the dominant groups and minority. To
them it is much more important "to understand the genesis of the relationship
between dominant group and minority then it is to know the marks by the
possession of which people is identified as member of either." Rose defined
minority as a "group of people differentiated from others in the same society by
race, nationality, religion, or language - who both think of themselves as a
differentiated group and are though of by others as a differentiated group with
negative connotation."
Thus most of the definitions explained above place emphasis either upon
certain common characteristics present among the members of the groups
which serve as the marks of distinction and such objective test, and it is only in
some cases that the factor of relationship between the dominant and non
dominant group is regarded as the main determinant of minority status which,
in turn, at least some cases, renders relative numbers in and out of the group
concerned as irrelevant for definitional purpose.
A 'consciousness' of the difference with the majority on the basis of certain
characteristics is, therefore, considered as a distinguishing mark, and as such a
subjective element. thus, the definition which lays emphasis upon certain
subjective factors such as 'feeling' or 'consciousness' provide a test which is too
vague and uncertain, and more psychological in nature than real. Every
situation may not necessarily involve the assumption that the group in order to
deserve the title of 'minority' must be distinguishable from the majority by the
presence of the feeling or consciousness of its being different from the majority.
A group distinguishable from others by the possession of certain objective
characteristics, such as language, may not have a feeling or consciousness of its
distinct status of being counting as minority. The most acceptable definitions,
given by the Human Rights Commission, is not beyond the reach of argument.
That definition appears to be confined to those non dominant groups only
which, apart from having certain objective characteristics that are distinctively
of their own, wish to preserve the distinctive identities and are not willing to be
assimilated with the rest of the population.
No definition comes out to be comprehensive to cover all the varied situations,
illustrates the difficulty experienced in assigning limits to concept of minority.
This must remain the possible explainable reason why courts have not ventured
to formulate a general definition.
Indeed, as far as the limited purpose of article 30 is concerned, such a venture
would have been rather unnecessary too. For, religion and language being the
criteria indicated in article 30, a pre-condition for the latter acceptability, the
Constitution itself tends to confine the tasks of the courts to the ascertainment
whether the group claiming constitutional protection is the group identifiable by
the characteristics of religion or language and is numerically non dominant. The
courts have therefore, only to be sure for themselves that the basis of claim to
protection is ether religion or language.
Interpreting the words, "based on religion" in article 30, the Delhi High Court
rightly pointed out that the words would mean that "the only or the principal
basis pf the 'minority' must be their adherence to one of the many
religions…and that the other features of the minority are subordinate to the
main feature, namely, its separateness because of the religion." A similar
interpretation can also be placed on the words 'based on language'. That being
so, it can be concluded that for the purpose of article 30, a majority means a
non-dominant collectively distinguishable from the majority of population by
the objective factors of religion or language or language or a combination of
Constituent Assembly Debate:The whole debate in the Constituent Assembly
on article 23 of the Draft Constitution which later assumed the shape of the
present article 29 and 30, revolve round this issue: what rights could or should
be conceded to minorities? The reference to minorities was a reference to none
other than Indian minorities existing in India. The original draft of the
fundamental rights submitted to the Constituent assembly on April 16, 1947 by
the Sub-Committee on Fundamental Rights did not contain any provision
corresponding to article 30(1) and did not even refer to the word minority. The
letter submitted by K.M. Munshi to the Minorities Sub-Committee on the same
date when, along with some other rights, the rights now forming part of article
30(1) was proposed, made a reference on the term "national minorities".
The Drafting committee, however, sought, to make a distinction between the
rights of any section of the citizen to conserve its language, script or culture and
the right of the minorities based on religion or language to establish and
administer educational institutions of their choice and for this the committee
omitted the word 'minority' in the earlier part of the draft article 23
corresponding to article 29, while it retained the word in the latter part of the
draft article 23 which now forms part of the article 30(1).
Ambedkar sought to explain the reason the reason for substitution in the Draft
Constitution of the word minority by the words "any section" observing:
It will be noted that the term minority was used therein not in the technical
sense of the word 'minority' as we have been accustomed to use it for the
purpose of certain political safeguards, such as representation in the
Legislature, representation in the service and so on. The word is used not
merely to indicate the minority in the technical sense of the word, it is also used
to cover minorities which are not minorities in the technical sense, but which
are nonetheless minorities in the culture and linguistic sense. That is the reason
why we dropped the word "minority" because we felt that the word might be
interpreted in the narrow sense of the term when the intention of this
House….was to use the word 'Minority' in a much wider sense so as to give
cultural protection to those who were technically not minorities but minorities
nonetheless.
Ambedkar's explanation that the right was available not only to minorities in
the 'technical sense' but also to minorities in the 'wider sense' has an obvious
reference only to that part of Draft article 23 which now forms part of article
29(1) and not to that which is now clause (1) of article 30. His expiation,
therefore, may be taken to be an attempt to broaden the scope of clause (1) of
article 29 only so as to include within the term 'minority' other minority groups
also, as contemplated and illustrated by him, and thus to confine article 30(1) to
those minorities which he described as minorities in the technical sense, were
politically recognized and the most prominent amongst them were represented
in the Constituent Assembly also.
The whole problem, as far as this part of constitution is concerned, that engaged
considerable time and efforts of the framers was to achieve a consensus an a
constitutional arrangement, between the numerically dominant majority
considered as such on the national scene and the minorities referred to above- a
solution which could give the minorities a feeling of security against
discrimination, and security against interference with those characteristics
which had divided them apart from the majority. And, it is too obvious to be
noted that, at no stage was any section of this majority ever treated as 'minority'.
If these assumptions as accepted as truly reflecting the intention of those who
drafted and incorporate these provision in the constitutional document, with a
wishful hope that they were rendering a constitutional solution to the problem
of Indian minorities, it may be argued that where a minority is the historical or
national context and its claim is based on religion it must be defined and
ascertain in terms of the population of the whole country, irrespective of its
being in numerical majority in any particular state; and, where a group in not a
minority considered as such in the national context, but is still definable as
'minority' under Ambedkar's stretched meaning of the term, it may be
ascertained with reference to the population of the state concerned. The
argument is correct, it is submitted, if the provision in the question are viewed
against the historical prospective in which they were adopted, and are construed
to carry into effect the true spirit and intention of the constitution.
Protection of Interest of Minorities:Article 29 of the Constitution of India
defines the protection of interest of minorities: -
1) Any section of the citizen residing in the territory of India or any part thereof
having a distinct language, script or culture of its own shall have right to
conserve the same.
2) No citizen shall be denied admission into any educational institution
maintained by the State receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them.
Clause (1) gives protection to every section of the citizens having distinct
language, script or culture by guaranteeing their right to conserve the same. If
such section desires to preserve their own language and culture, the state would
not stand in their way. A minority community can effectively conserve its
language, script or culture by and through educational institutions and therefore
necessary concomitant to the right to conserve its distinctive language, script or
culture and that is what is conferred on all minorities by article 30(1). But
article 29(1), neither controls the scope of article 30(1) nor is controlled by that
article. The scope of the two is different. Article 29(1) is not confined to
minorities but extends to all sections of citizens. Similarly article 30(1) is not
confined to those minorities, which have 'distinct language, script or culture' but
extends to all religious and linguistic minorities. Further, article 30(1) gives
only the right to establish and administer educational institutions of minorities'
choice while article 29(1) gives a very general right 'to conserve' the language,
script or culture. Thus, the right under article 30(1) need not be exercised for
conserving language, script or culture.
Clause (2) relates to admission into educational institutions, which are
maintained or aided by state funds. No citizen shall be denied admission in such
institutions on grounds only of religion, race, caste, language or any of them.
Article 15 prohibits discrimination against citizen on ground of religion, etc.
but the scope of two articles is different. Firstly, article 15(1) protects all
citizens against the state where as the protection of article 29(2) extends to the
state or anybody who denies the right conferred by it.
Secondly, article 15 protects all citizens against discrimination generally but
article 29(2) is a protection against a particular species of wrong, namely,
denial of admission into educational institutions maintained or aided by the
state. Finally, the specific grounds on which discrimination is prohibited are not
the same in two articles. 'Place of birth' and 'sex' do not occur in article 29(2),
while 'language' is not mentioned in article 15.
The right to admission into an educational institution is a right, which is an
individual citizen, has as a citizen and not as a member of a community or class
of citizen. Hence a school run by a minority, if it is aided by state funds, cannot
refuse admission to children belonging to other communities. But the minority
community may reserve up to 50% of the seats for the members of its own
community in an educational institution established and administered by it even
if the institution is getting aid from the State. The state, however, cannot direct
minority educational institutions to restrict admission to the members of their
own communities. Article 29(2), however, does not confer a legal right on the
members belonging to other communities to freely profess, practice and
propagate their religion within the precincts of a college run by a minority
community. Article 29(2) cannot be invoked where refusal of admission to a
student is on the ground of his not possessing requisite qualifications or where a
student is expelled from an institution for acts of indiscipline.
To overcome the conflict with article 15 as well as article 29 the Constitution
(First Amendment) Act, 1951, added clause (4) to article 15 to the effect that
nothing in article 15 and article 29(2) shall prevent state from making any
special provision for the advancement of any socially and educationally
backward classes of citizen or for the schedule caste and the schedule tribes.
The state is empowered to reserve seats in state colleges for socially and
educationally backward classes of citizen or for SC and ST.
Rights of Minority to Establish and Administer Educational Institutions:Article
30 of the Constitution of India defines Rights of Minority to Establish and
Administer Educational Institutions: -
1) All minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.
[1-A) In making any law providing for the compulsory acquisition of any
property of an educational institution establish and administered by a minority,
referred in clause (1), the State shall ensure that the amount fixed by or
determined under such law for the acquisition of such property is such as would
not restrict or abrogate the right guaranteed under that clause.]
2) 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.
Clause (1) gives rights to all minorities based on religion or language the right
to establish and administer educational institution of their own choice. Article
29 and 30 are grouped together it will wrong to restrict the rights of minority to
establish and administer educational institution concerned with language script
and culture of the minorities. The reasons are: Firstly, article 29 confers the
fundamental rights on any section of the citizen which will include the majority
also where as article 30(1) confers all rights on all minorities. Secondly, article
29(1) is concerned with language, script or culture, whereas article 30(1) deals
with minorities based on religion or language. Thirdly, article 29(1) is concern
with the right to conserve language, script or culture, whereas article 30(1)
deals with right to establish and administer educational institutions of the
minorities of their choice. Fourthly, the conservation of language, script or
culture under article 29(1) may be by means wholly unconnected with
educational institutions, and similarly establishment and administer educational
institutions by a minority under article 30(1) may be unconnected with any
motive to conserve language, script or culture. A minority may administer an
institution for religious education, which is wholly unconnected with any
question of conserving language, script or culture. It may be that article 29(1)
and article 30(1) overlap, but the former cannot limit the width of the latter. The
scope of article 30 rests on the fact that right to establish and administer
educational institution of their own choice is guaranteed only to linguistic or
religious minorities, and no other section of citizens has such a right. Further
article 30(1) gives the right to linguistic minorities irrespective of their religion.
It is, therefore, not at all possible to exclude secular education from article 30.
The expression 'minority' in article 30 remains undefined though the court has
observed that it refers to any community which is numerically less than 50% of
the population of a particular state as a whole when a law in consideration of
which the question of minority right is to be determined as a State law. A
community, which is minority in specific area of the State though a majority in
the state as a whole, would not be treated as minority for the purpose of this
article. A minority could not also be determined in relation to entire population
of the country. If it was a state law, the minorities must be recognized in
relation of that state. But the fact that the expression minority an article 30(1) is
used to distinct from 'Any section of citizen' in article 29(1) lends support to the
view that article 30(1) deals with national minorities or minorities recognized in
the context of entire nation. In that case, however, article 30(1) would become
inapplicable to the national majority even if it is a minority in any particular
state, e.g., Hindus in Punjab or Jammu and Kashmir.
Although article 30(1) does not speak of citizens, the minority competent to
claim the protection of that article must be a minority of person residing in
India. 'The minority under article 30 must necessarily mean those who farm a
distinct and identifiable group of citizen in India'. Article 30(1) does not confer
upon foreigners not residents in India the right to set up educational institutions
of their choice. The right conferred on minorities is to establish educational
institutions of their choice. It does not say that minority based on religion
should establish educational institutions for teaching of their own language
alone. The article leave it to their choice to establish such educational
institutions as will serve both the purpose, namely, the purpose of conserving
their religion, language, or culture, and also the purpose of giving a thorough
general education to their children. Minorities are, however, not entitled to have
educational institutions exclusively for their benefit.
In D. A. V. College v. State Of Punjab, it was observed that, a linguistic
minority for the purpose of art. 30(1) is one which must at least have a separate
spoken language. It is not necessary that that language should also have a
distinct script for those who speak it to be a linguistic minority. Religious or
linguistic minorities should be determined only in relation to the particular
legislation which is sought to be impugned, namely that if it is the State
Legislature these minorities have to be determined in relation to the population
of the State. AryaSamajis have a distinct script of their own, namely Devnagri
therefore they are entitled to invoke the right guaranteed under art. 29(1)
because they are a section of citizens having a distinct script and under art.30(1)
because of their being a religious minority. Sub-sections (2) and (3) of s. 4 do
not in our view offend by themselves any of the rights of the petitioners either
under art. 29(1) or art.30(1) of the Constitution. Nowhere there is a mandate for
compelling Colleges affiliated to it either to study the religious teachings of
Guru Nanak or to adopt in any way the culture of the Sikhs.
Thus religious or linguistic minorities should be determined only in relation to
the particular legislation which is sought to be impugned, namely that if it is the
State Legislature these minorities is to be determined in relation to the
population of the State.
It was held that, religious instruction is that which is imparted for inculcating
the tenets, the rituals, the observances, ceremonies and modes of worship of a
particular sect or denomination. To provide for academic study of life and
teaching or the philosophy and culture of any great saint of India in relation to
or the impact on the Indian and world civilizations cannot be considered as
making provision for religious instructions. The State of Punjab is created as a
unilingual State with Punjabi as its language and if provision is made for study
of Punjabi language that does not furnish a ground for discrimination nor can
the provision for study of the life and teachings of Guru Nanak afford any cause
for complaint on grounds of violation of art. 14 of the Constitution. The right to
form association implies that several individuals get together and form
voluntarily an association with a common aim, legitimate purpose and having a
community of interest. The right extends inter alia to the formation of an
association or Union. Section 5 of the impugned Act does not effect the right of
D.A.V. College Trust and Society to form an association. Therefore, there is no
infringement of art. 19(1)(c).
The right conferred on minorities is to establish educational institutions of their
choice. It does not say that minority based on religion should establish
educational institutions for teaching of their own language alone. The article
leave it to their choice to establish such educational institutions as will serve
both the purpose, namely, the purpose of conserving their religion, language, or
culture, and also the purpose of giving a thorough general education to their
children. Minorities are, however, not entitled to have educational institutions
exclusively for their benefit.
Clause (2) is only a phase of non-discrimination clause of the constitution and
does not derogate provisions made in clause (1). The clause is expressed in
negative terms: the state is therefore enjoined not to discriminate in granting aid
to educational institutions on the ground that the management of the institutions
is in the hands of minority, religious or linguistic. The clause does not mean
that the state is competent otherwise to discriminate so as to impose restrictions
upon the substance of rights to establish and administer educational institutions
by minorities. The rights established by article 30 (1) is intended to be a real
right for the protection of the minorities in the matter of setting up of education
institution of their choice.
Kerla Education Bill CaseThe article first came up for interpretation before a
seven judge Constitution Bench constituted to consider the reference made by
the President under article 143 in In re Kerla Education Bill sponsored by the
Communist Government of the state which was stoutly opposed by Christians
and Muslims. Chief justice S.R. Das delivered the majority opinion. He spoke
for six judges- the sole dissent by justiceVenkataramaAiyar being confined to
the question whether minority institutions were entitled also to recognition and
state aid as part of the right guaranteed by article 30(1). C. J. Das held, inter
a) An institution, in order to be entitled to the protection, need not deny
admission to members of other communities.
b) It is not necessary that an institution run by religious minority should impart
only religious education or that one run by the linguistic minority should teach
language only. Institution imparting general secular education is equally
protected. The minority has a right to give "a thorough, good general
education".
c) Grant of aid or recognition to such institution cannot be made dependent on
their submitting to such stringent conditions as amount to surrendering their
right to administer to them. However the right to administer does not include
the right to misadministration reasonable regulations can be made.
d) Regulation prescribing the qualifications for teachers was held reasonable.
Those relating to protection and security of teachers and to reservation in favor
of backward classes which covered government schools and aided schools
alike, were "perilously near violating that right", but "at present advised" were
held to be permissible regulations. Provision centralizing recruitment of
teachers through State Public Service Commission and taking over the
collection of fees etc. were held to be destructive of rights of minorities to
manage the institutions.
Clauses of the Bill, which authorized the taking over of management in the
event of specified failings, in effect, annihilated the minorities' right to
administer educational institutions of their choice.
Minority Rights flow from Articles 14,15,19(1)(2) 21, & 26 (a). Thus while it is
true that it is only the minorities whose right to establish and administer
educational institutions is mentioned n article 30(i) it dos not follow the same is
denied to the majority communities. It was considered necessary like a special
mentioned for the right of minorities by way of extra assurance to it is not
correct to say that minorities were considered backward and needed
concessions though article 30(i) to bring them up. The object was to make that
they will not be discriminated against. It was not intended to pamper as favored
communities. It should follow therefore form articles 14 and 15 majority
communities have right to similar treatment at the hands of the in the matter of
recognition affiliation government aid or non displacement management in
respect of educational institutions established by majority as accorded to
minority institutions of course condition can and to be imposed in regard to aid,
affiliation and recognition in order to ensure standard of teaching but the same
have to be uniformly onerous and not be so drastic as to involve surrender by
the community or founder or management of its right to establish and
administer the institution.
The thesis that the majority in a system of adult franchise hardly needs any
action it can look after itself and protect its interests any measure wanted by
majority can without much difficulty be brought on the statute book because
majority can bet that done by giving a mandate to the elected representatives
only the minorities who need protection is with the utmost respect to the
anguished judge to naive to command acceptance. Modern parliamentary
democracy are run on a party system which in India the more so in the post
mandal is built largely on the basis of caste and communal co9nbination
Government are returned to power not on the basis of issues or mandates.
Managements functional institution do not work for a vote bank while their
teachers do that. Religions majority namely Hindus are not a homogeneous
monolith. It is a much-divided society. There are caster and sub caste division
and the same court defence to the legislative and executive wisdom on article
has no made things easier electoral arithmetic has led to all sorts of and
combination.
Apart from articles 15 and 15(I) this right to establish and administer
educational institutions also flows as seen above form articles 19(i) (g) and
26(a), which make no distinction between majority and minority communities.
The right of students to education as a fundamental right under article 21, also
simples that they as well as their parents have the right to choice of institutions
in which they would like the former to be educated. Every community has a
right to found and administer educational and other charitable institutional and
to run them according subject perceptions of what is best of the community and
for the institution subject of perceptions of what is best for the community and
for the distinction for religion or language minority or majority.
The only consequence of this will be that provisions relating to displacing of
managements through statutory schemes of administration or through take over
of institutions and appointment of authorized controllers and also those
divesting the management of the powers of appointment and discipline
pertaining to teachers will have to be treated as unconstitutional in so far as
they relate to majority institutions too to the same extent as they have been
treated vis-à-vis minority institutions and it will not be such a bad thing from
the educational angle either the ground reality is that just as nationalization of
many private industries on ground of mismanagement by industrialists has
proved counter productive. so also has the taking over of the management
institutions. The cause for interference in each case was the acts of
mismanagement and dissipation on the party of private mil owners or school
college managers. But the bureaucrats displacing them have by and large not
felt any commitment to the industry institution at all and have succumbed to
political pressures with the result that things have only worsened instead of
improving. That is why they are now being re-privatized it is only though de
politicization of control over the institutions that the management can be better
and more evenly disciplined. Deprivation of management of their power in
regard to appointment and discipline of teachers has likewise led to a steep fall
in discipline and standard. Many teachers do not care to listen even to their
principal or head of department what to say of the management. Absenteeism
indulgence in private tuitions and running of coaching schools are the order of
the day. Of course regulatory provision to the same extent not more noels as
have been accepted to be necessary for the protection of teacher of minority
institutions would in any case continue in relation to teachers of majority
institutions also. The trend the work over is now for less and less of
government. If misadministration can be prevented in the case of minority
institutions without emasculating the management the same should be minority
institution too. As per Ray C.J. in St. Xavier's and per Jag Mohan Reddy J. all
institution irrespective of any denominational distinction should be places of
workshop of learning for students
Conclusion: The courts, however, seem to have been persuaded by practical
compulsion rather than be swayed away by a feeling of faithfulness to the spirit.
Their course of opinion seems to have been determined by some of the
followings:
i. That provisions in question seeks to protect minorities against state action,
which term includes laws and also under them, executive actions.
ii. That ours being a federal democratic system, political and legislative
processes operate not only from the national center of power but also from the
iii. That these states are autonomous in their respective legislative spheres-and
laws are passed by majority votes.
iv. That minorities, considered as much on the national level, do constitute
numerical majority in some states.
v. That these majorities may, by their laws, deny the protection to the non-
dominant group which the Constitution so emphatically seeks to secure.
vi. That these majorities may, by their numerically strength, overshadowed the
distinct shadow the distinct characteristics and individuality of the non-
dominant groups, and the latter may have to live under a psychological fear of
being discriminated and overwhelmed.
vii. That it was this fear in some sections of some minorities at least, which had
pervaded the politics the politics of pre-partition India, and that it was on this
premise that minority rights were demanded and conceded in Constitution
Assembly.
viii. That it is this fear, which still continues to be the core component of the
minority component.
ix. That the assurance to protection for minorities can tell its true meaning only
when a non-dominant group in a state is define and ascertain as 'minority'
where the law in question is a state law, eve though the group happens to be a
part of the 'majority', considered a majority in the context of the whole country.
x. That the same reason that became the basis for article 29 and 30 to find a
place in the category of justiciable Fundamental Rights must be valid in this
situation also.
The new part which consists of only one Art. 51-A was added to the
constitution by the 42nd Amendment, 1976. This Article for the first time
specifies a code of ten fundamental duties for citizens. Art. 51-A says that it
shall be the duty of every citizen of India:
(a) To abide by constitution and respect its ideals and institutions, the National
Flag and National Anthem;
(b) To cherish and follow the noble ideals which inspired our national struggle
for freedom;
(c) To uphold and protect and sovereignty, unity and integrity of India;
(d) To defend the country and render national service when called upon to do
so;
(e) 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;
(f) To value and preserve the right heritage of our composite nature;
(g) To protect and improve the natural environment including forests, lakes,
rivers and wild life, and to have compassion for living creature;
(h) To develop the scientific temper, humanism and the spirit of inquiry and
reform;
(i) To safeguard public property and to abjure violence;
(j) To strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels of endeavour and
achievements.
The constitution (86th amendment) Act, 2002 has added a new clause (k) to Art.
51-A which provides “who is parent or guardian to provide opportunities for
education to his child or as the case be, ward between the age of six and
fourteen years”.
Needs for Fundamental Duties:- Rights and duties are correlative. The
Fundamental Duties are, therefore, indeed to serve as a constant reminder to
every citizen that while the Constitution specifically conferred on them certain
Fundamental Rights, it also requires citizens to observe certain basic norms of
democratic conduct and democratic behaviour. It was claimed by the ruling
party the congress, that what the framers failed to do was being done now. The
omission is being rectified by providing a chapter on citizen’s duties. It was
argued that in India people lay emphasis only on rights and not on duties.
It is submitted that this view is wrong. The performance of one’s duties even in
partial disregard of one’s rights and privileges has been traditional in this
country. Since time immemorial the emphasis in Indian society in accordance
with the dictates of the ancient scriptures has been on the individual’s
“Kartavya”, this is,performance of one’s duties towards society, the country and
especially towards one’s parents. The Gita and Ramayana enjoin people to
perform their duties without caring for their rights or fruits.
These traditional duties have been given constitutional sanction. “If one takes
care to see, he will discover in the constitution not only his rights but also his
duties. A look at the constitution will also thus answer the complaint of some
persons that constitution has conferred rights on the individual but has not set
out the duties of the individuals towards the society. The Preamble of the
Constitution secures to all the citizens: “liberty of thought, expression, belief,
faith and worship.” These are fundamental rights of the citizens. The rest of the
Preamble emphasises only the duties, “justice, socio economic and political”. In
addition to this, the fundamental rights guaranteed by the Constitution are not
absolute rights. The state is empowered to impose reasonable restriction and
curtail these rights in the interest of society. Restitutions may sometimes
amount to prohibition.
Enforcement of Duties:-the duties incorporated in the constitution by the 42nd
Amendment are statutory duties and shall be enforceable by law. Parliament, by
law, will provide penalties to be imposed for failure to fulfil those duties and
obligations. The success of this provision would, however, depend much upon
the manner in which and the person against whom these duties would be
enforced.
For the proper enforcement of duties, it is necessary that it should be known to
all. Most of the people of this country are illiterate and not politically conscious
what they owe to society and country. Homes, universities, officers and their
places of work should all be made centres for imparting in the performance of
their obligations.
In M.C.Mehtavs Union of India: (1983) 1 SCC 471, the SC has held that
u/Art. 51-A(g) it is the duty of the central government to introduce compulsory
teaching of lessons at least for one hour in a week on protection and
improvement of natural environment in all the educational institutions of the
country. It directed the central government to get textbooks written on that
subject and distribute them on the educational institutions free of cost. In order
to rouse amongst the people, the consciousness of cleanliness of environment, it
suggested the desirability of organising, keep the city clean week, keep the
town clean, keep the village clean week, in every city, town and village
throughout India atleast once in a year.
Fundamental Duties- An aid to interpretation of Constitutional provisions
In AIIMS Students Union vs AIIMS: AIR 2001 SC 3262, speaking about the
importance of fundamental duties enshrined in Art. 51-A while striking down
the institutional reservation of 33% in AIIMS coupled with 50% reservation
discipline wise as violative of Art. 14 of the Constitution, the SC said they are
equally important like fundamental rights but it cannot overlook as “duties” in
para IV A is prefixed by the same word “fundamental” which was prefixed by
the founding fathers of the Constitution to “right” in para III.
In Aruna Roy vs Union Of India: AIR 2002 SC 3176, the validity of national
Curriculum framework for school education was challenged on the ground that
it was violative of Art.28 of the constitution and anti-secular. It provides
imparting of value development education relating to basic of all religions. The
court held, that the NCFSF does not mention of imparting “religious
instructions” as prohibited u/Art. 28.
Accordingly the court held that such education is neither violative of Art. 28 of
the Constitution nor is against the concept of secularism.
2. Parliamentary Privileges
The privileges of the parliament and its members are such conventions and
practices which evolved in England as a consequence of the constant struggle
which the Commons had to put against the Crown, the Country and the Lords.
These have been described by the English Authorities in constitution as the
important part of the law and custom of the parliament of English. In English,
conventions have developed adequately and whenever we in India, fail to find a
solution of a problem arising in our Parliament in this respect, we have a look at
the conventions in England for that purposes. So far, the conventions have not
developed to that extent and adequate provisions have also not been made in
this regard in the constitution itself.
According to May, the parliamentary privileges are defined as, “some of the
peculiar rights enjoyed by each house collectively as a constituent part of the
parliament and by the members of each house individually without which they
could at discharge their functions and which exceed those possessed by other
bodies or individuals”
Parliamentary Privileges or the legislative privileges connote certain rights
occurring to each house of Parliament collectively and also to members
individuality without which it would not be possible to maintain either
independence of action or the dignity and efficiency of a sovereign legislature.
Art 105 and 194 of the constitution of India related to the privileges, powers
and immunities of Parliament and its members and the state legislature and their
members respectively.
Privileges are attached not only to House collectively but even to individual
members of the House, the reason being that no house can function effectively
unless its members functions effectively and without any interference from any
quarter. Privileges are conferred on a House so that it may vindicate its
authority, prestige and power and protect its members from any molestation or
obstruction in the performance of their functions as members of their House.
Privileges of a legislature exist mainly for its protection and maintenance of its
independence and dignity.
The privileges of a House have two aspects – (i) external and (ii) internal.
They refrain anybody from outside the House to interfere with its working. This
means that the freedom of speech and action of outsiders are limited to some
extent. The privileges also restrain the members from doing something which
may amount to an abuse of their position.
The Indian Constitution – makers appreciated the need to confer certain
privileges to the legislature in India. The Constitutions does not however,
exhaustively enumerate the legislative privileges. It specifically defines only a
few privileges but the rest of the privileges – of the legislatures in India shall be
those which were enjoyed by the House of Commons on the date of
constitution. The ideas was to confer on the legislatures in India very broad
privileges, as broad as widest privileges as compared to any other legislatures in
the world.
The relevant provisions in the Constitution defining legislative privileges are
Art. 105 and 194. Art. 105 relates to parliament while Art. 194 relates to the
state legislatures. Both these provisions are couched practically in similar
language and therefore, any discussion on Art. 105 will apply mutates to Art.
194. Art. 105 as it stood prior to the Constitution ( 42nd amendment) Act, 1976,
ran as follows:
(i) Subject to the provisions of this Constitution and rules, and standing
(ii) No member of parliament shall be liable to any proceedings in any court
(iii) In other respects, the powers privileges and immunities of each House of
(iv) The provisions of clause (1), (2) and (3) shall apply in relation to person
orders regulating the procedure of parliament, there shall be freedom of
speech in Parliament.
in respect of any things said or any vote given by him in parliament or
any committee thereof, and no person shall be so liable in respect of the
publication by or under the authority of either House of Parliament any
report, papers, votes or proceedings.
Parliament and of the members and the committees of each House, shall
be such as many from time to time be defined by Parliament by Law, and
until so defined, shall be those of the House of Commons of the
Parliament, of the United Kingdom, and of its members and committees,
at the commencement of this Constitution.
who by virtue of this Constitution have the right to speak in and
otherwise to take part in the proceedings of, a House of Parliament or any
committee therefore as they apply in relation to members of Parliament.
3. Parliamentary privileges and fundamental rights
There has been some confusion on the question whether the fundamental rights
control in any way the privileges which the house enjoy u/Art. 105 (3) and which
is to prevail in case of a conflict between such a privilege and fundamental rights.
In GunupativsNafisul Hassan: AIR 1954 SC 836, the SC ordered the release of
the editor of “Bitz”, arrested on a charge of contempt of the House under the
speaker’s warrant, on the ground that he had not been produced before a legislature
within 24 hrs of his arrest as required by Art. 22(2) of the Constitution. This
created the impression that the fundamental rights would control parliamentary
privileges. In the Searchlight case i.e., M.S.M. Sharma vsSinha: AIR 1959 SC
395, the SC held by majority that the privileges enjoyed by a House of Parliament
u/Art. 105(3) were not subject to Art. 19(1)(a) and therefore, a House was entitled
to prohibition contravenes the fundamental rights of speech and expression u/Art.
19(1).Gunupati was held not binding as it was not a considered opinion on the
subject. The court observed that Art. 105(3) was not declared to be “subject to the
constitution”, and therefore, it was as supreme as provision of the constitution
including the fundamental right. Any inconsistency between Art. 105(3) which was
of a special nature.Though the court in searchlight was concerned specifically with
the question of applicability of Art. 19(1)(a) to the area of legislative privileges, an
impression got around, because of certain observations made by the court and the
way in which court treated the earlier case of Gunupati that, perhaps all
fundamental rights were so applicable. Reconsidering the question of mutual
relationship between the fundamental rights and legislative privileges in Keshav
Singhcase: AIR 1965 SC 745, the SC held that the searchlight case excluded only
Art. 19(1)(a) and not other fundamental rights, from controlling parliamentary
privileges. It held that Art. 21 would apply to parliamentary privileges and a person
would be free to come to the court for a writ of habeas corpus on the ground that
he had been deprived of his personal liberty not in accordance with law but for
capricious or mala fide reason. The court open the question whether any other
fundamental right would apply to legislative privileges as it was not pertinent to
the issue in hand later disposing of the keshav Singh case (Keshavsinghvs Speaker
Legislative Assembly: AIR 1965 All. 349), the Allahabad HC held that when the
legislature acted under the rules framed by it laying down the procedure for
enforcing its powers to commit for contempt, that would be compliance of Art. 231
requiring procedure to be laid down by law for deprivation of personal liberty. It
was also held that Art. 22(2)has no application when a person has been adjudged
guilty of contempt of the House and has been detained in pursuance of such an
adjudication. Thus, the position appears to be that it is wrong to suppose that no
fundamental right, applies to the area of legislative privileges. Some fundamental
rights like Art. 19(1)(a) do apply. Perhaps Art.21 do apply, while the position with
regard to others, e.g. Art. 22(1) & 22(2) is not clear. There is, however, no doubt
that if parliament were to act, would not be free from controlling effect of the
fundamental right. Such provisions of the law as contravene fundamental rights
would be invalid (G. SubraManiumvs Speaker Legilative Assembly: AIR 1969
Mad. 10).
4. Directive Principles of State Policy
Introduction:-part IV of the constitution contains, certain principles called
Directive Principle, which are fundamental in the governance of the country and
the state is under duty to apply these principles in making law, although they are
not enforceable by court. This novel feature of the constitution is borrowed from
the constitution of Ireland, which had copied it from the Spanish Constitution.
Ivor Jennings calls it was the “Philosophy of Fabian Socialism”. According to
G.N. Joshi, the part IV of the constitution, containing, DPSP, “constitutes a very
comprehensive political, social & economic programme for a modern Democratic
State.”
At one time it was thought that the state was mainly concerned with the
maintenance of law and order and the protection of life, liberty and property of the
subject. Such a restrictive role of the state is no longer a valid concept, today we
are living in an era of a welfare state, which has to promote the prosperity and
well-being of the people. The Directive Principles lay down certain economic and
social policies to be pursued by the various governments in India; they impose
certain obligation on the state to take positive action in certain directions in order
to promote the welfare of the people and achieve economic democracy.
Underlying object behind the Directive Principle:-the Directive Principles aare the
ideals, which the Union and the State Governments must keep in mind while they
formulate policy or pass a law. They lay down certain social, economic and
political principles, suitable to peculiar conditions prevailing in India.
Classification of the Directives:- The Directives may be classified in to the
following groups:
(A) Social and Economic Charter
1. Social order based on justice: Art. 38(1) provides that the state shall
strive to promote the welfare of the people by securing and protecting a
social, economic and political justice.
Art. 38(2) further elaborated the state’s duty inserted by the 44th
Amendment. 44th Amendment provides that the state shall, in particular,
strive to minimise inequalities in income and endeavour to
eliminateinequalities in status, facilities and opportunities, not only
amongst individuals but also amongst groups of people residing in
different area or engaged in different vocations. The new clause aims at
equality in all spheres of life. It would enable the state to have a national
policy on wages and eliminate inequalities in various spheres of life.
2. Principles of policy, to be followed by the state for securing economic
justice: Art. 39 directs the state to secure:
(a) Equal right of men and women to adequate means of livelihood.
(b) Distribution of ownership and control of the material resources of the
(c) To ensure that the economic system should not result in concentration
(d) Equal pay for equal work for both men and women.
(e) To protect health and strength of workers and tender age of children
community to the common good.
of wealth and means of production to the common detriment.
(f) That children are given opportunities and facilities to develop in a
and to ensure that they are not forced by economic necessity to enter
avocations unsuited to their age or strength.
healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and against
moral and material abandonment.
Clause (f) was modified by the Constitution (42nd Amendment) Act,
1976, with a view to emphasis the constructive role of the state with
regard to the children. Distributive justice is common aim of Art. 38 &
39. They propose to promote equality in wider import and create
circumstances to avoid injustice at the social and economic levels. In
M.C.Mehtavs State of Tamil Nadu: (1991) 1 SCC 283,it has been held
that in view of Art. 39 the employment of children within the match
factories directly connected with the manufacturing process of matches
and fireworks cannot be allowed as it is hazardous. Children can,
however, be employed in the process of packing but it should be done in
area away from the place of manufacturing to avoid exposure to
accidents.
In an another landmark judgment in M.C.MehtavsStae of Tamil Nadu:
AIR 1997 SC 699, known as (child labour abolition case) a three judges
bench of the SC has held that children below the age of 14 cannot be
employed in any hazardous industry, or mines or other work.
Equal pay for equalwork: Pursuant to Art. 39(d) Parliament has enacted
the Equal Remuneration Act, 1976. The directive contained Art. 39(d)
and the Act passed thereto can be judicially enforceable, by the court. In
Randhir Singh vs UOI: AIR 1982 SC 879, the SC has held that the
principle of “Equal pay for equal work though not a fundamental right” is
certainly a constitutional goal and, therefore, capable of enforcement
through constitutional remedies u/Art. 32 of the constitution. The
doctrine of equal pay for equal work is equally applicable to persons
employed on daily wages basis. They are also entitled to the same wages
as other permanent employees in the department employed to do the
identical work.
In State of Haryana vsRajpal Sharma, AIR 1997 SC 449, it has been
held that the teachers employed in privately managed aided schools in
State of Haryana are entitled to the Salary and dearness allowance as is
paid to teachers employed in Government schools.
(B) Social Security Charter
1. Equal justice and free legal aid Art. 39A
2. Right to work, education and public assistance
in certain cases. Art. 41
Resultantly the SC declared in Mohini Jain case
that the right to education be equated with a fundamental
right and it should be read to the Art. 21, because
the right to life means a dignified life which has
no meaning without education.
3. Just and human conditions of work Art. 42
4. Living wage for workers Art. 43
5. Participation of workers in management Art. 43A
6. Provision for early childhood care and education Art. 45
7. Promotion of educational and economic interest Art. 46
8. Duty of the stage to raise the level of nutrition Art. 47
of industries.
to children below the age of six years
of SCs and STs and other weaker section
and the standard of living and improvement of
public health.
In HussainaraKhatoonvs State of Bihar: AIR 1979 SC 1369, the SC held that
right to free legal right is essential ingredient of “reasonable fair & just” procedure
and implicit in guarantee of Art. 21. This is the constitutional right of every
accused person who is unable to engage lawyer due to poverty. The state is under
mandate to provide a lawyer to an accused person if the circumstances of the case
and needs of justice so require, provided, of course, the accused person does not
object to the provision of such lawyer.
In a notable judgment in State of Maharashtra vsManubhaiBagajiVashi: (1995) 5
SCC 730, the SC has held that Art 21 read with Art. 39-A casts a duty on the state
to afford grants in aid to recognised private law colleges, similar to other facilities,
which qualify for receipt of the grant. The aforesaid duty cast on the state cannot
be whittled down in any manner, either by pleading paucity of funds or otherwise.
The right to free legal aid and speedy trial are guaranteed fundamental rights u/Art.
21. Art. 39-A provides “equal justice” and “free legal aid”. The state shall secure
that the operation of the system promotes justice.
( C) Community Welfare Charter
1. Uniform Civil Code: Art. 44 requires the state to secure for the citizens a
uniform civil code throughout the territory of India.
In a historic judgment in SarlaMudgalvs UOI: (1995) 3 SCC 635, SC has
directed the Prime Minister NarsimhaRao to take fresh look at Art. 44 of the
Constitution which enjoins the state to secure a uniform civil code which,
accordingly to the court is imperative for both protection of the oppressed
and promotion of national unity and integrity. The court directed the Union
Government through the Secretary to Ministry of Law and Justice, to file an
affidavit by August 1995 indicating the steps taken and efforts made, by the
government, towards securing a uniform civil code for the citizens of India.
The above direction was given by the court while dealing with case where
the question for consideration was whether a Hindu husband under Hindu
Law, after conversation to Islam, without dissolving the first marriage, can
solemnise a second marriage. The court has held that such a marriage will be
illegal and the husband can be prosecuted for bigamy u/s. 494 of IPC. Court
further held that a Hindu Marriage continues to exist even after one of the
spouse converted to Islam. There is no automatic dissolution of Hindu
Marriage. It can on be dissolved by a decree of divorce on any of the
grounds mentioned in section 13of the Hindu Marriage Act. Accordingly,
the court held that the second marriage of Hindu after his conversion to
Islam was void in terms of section 494 IPC and the husband was liable to be
prosecuted for bigamy.
As regards the question of “Uniform Civil Code” the Division bench(Kuldip
Singh And R.M. Sahai, JJ.) in their separate but concurrent judgements said
that since 1950 a number of Governments have come and gone but they have
failed to make any efforts towards implementing the constitutional mandate
u/Art. 44 of the constitution. Consequently, the problem today is that many
Hindus have changed their religion and have converted to Islam only for the
purpose of escaping the consequence of bigamy. This is so because Muslim
law permits more than one wife and to the extent of four. Kuldip Singh, J.,
said that Art. 44 is based on the concept that there is no necessary
connection between religion and personal law in a civilized society.
Marriage, succession and like matters are of a secular nature and therefore,
they can be guaranteed by law. No religion permits deliberate distortion, the
judges declared. Much apprehension prevails about bigamy in Islam itself.
In many Islamic countries as in Syria, Tunisia, Morocco, Pakistan, Iran and
other Islamic countries have codified their personal law to check its abuse.
This judgment of the court has aroused the hope that one of the greatest evil
of Indian Society will be removed. But unfortunately the court, while
hearing an appeal filed by one of the accused in the above case, clarified that
its direction was only an obiter dicta and not legally binding on the
government. This clarification was given by Mr. Justice Kuldip Singh who
had directed the government to take immediate steps for implementing the
mandate of Art. 44 of the constitution. Even before the clarification of the
court the Prime Minister had told to the Muslim Ulemas of Rampur, U.P.
that his government would not implement the constitutional mandate u/Art.
44 of the constitution.
2. Organisation of agriculture and animal husbandry: Art. 48 directs the
state to take steps to organise agriculture and animal husbandry on modern
and scientific lines. In particular, it should take steps for preserving and
improving the breeds, and prohibiting the slaughter of cows and calves and
other milk and draught cattle.
3. Protection and improvement of forests and wild life: Art. 48-A requires
the state to take steps to protect and improve the environment and to
safeguard the forests and wild life of the country. In M.C. Mehta (II) vs
UOI: (1988) 1 SCC 471, the SC, relying on Art. 48-A gave directions to the
central and the state governments and various local bodies and Boards under
the various statutes to take appropriate steps for the prevention and control
of pollution of water.
4. Protection of monuments and places and objects of national
importance: Art. 49 requires the state to protect every monument or place
or object of artistic or historic interest (declared by law or under law made
by parliament) to be of national importance from spoliation, disfigurement,
destruction, removal, disposal or export. Pursuant to this, parliament has
enacted the Ancient and Historical Monuments and Archaeological Sites and
Remains (Declaration of National Importance) Act, 1951.
5. Separation of Judiciary from Executive: Art. 50 requires the state to take
steps to separate the Judiciary from the Executive in the public services of
the state. To promote the rule of law, this is very essential.
6. Promotion of International peace and security: Art. 51 provides that the
state should strive to (a) promote international peace and security; (b)
maintain just and honourable relations between nations; (c) foster respect for
international law and treaty obligations in the dealings of organised peoples
with one another; and (d) encourage settlement of international disputes by
arbitration.
The Protection of Human Rights Act, 1993: Pursuant to the direction
enshrined in Art. 51 of the constitution and International Commitments,
Parliament has passed the Protection of Human Rights Act, 1993. The Act
provides for the setting of a National Human Rights Commission and
Human Rights courts to meet the growing concern for human rights in the
country and abroad. Similar commission may be set up in the state also.
7. Organisation of village Panchayats Art. 40: The object of this Article is to
introduce democracy at the grass root level.
Implementation of the Directive Principles
As we know, the Directive Principles do not enjoy judicial sanctions as is
the case with fundamental rights. Thus, the implementation of these
principles depends upon the sweet will and available resources of the state.
However, since these principles aim at the establishment of a welfare state of
India, the successive governments have adopted measures to implement
them through separate legislative measures.
The constitution has been amended, successively (eg. 1st, 4th, 17th, 24th, 25th,
42nd. 44th amendments) to modify those fundamental rights by reason of
whose existence the state was experiencing difficulty in effective agrarian,
economic and social reforms which are envisaged by the directive principles.
The unspectacular implementation of the directive principles is mainly on
account of the resource crush and lack of political will or foresight. Poverty,
eradication, education, betterment of the backward classes conditions are a
few areas where the directives have particularly failed to show results.
Though implementation has been far from satisfactory, the state is showing
genuine will to implement the directive principles. In electoral politics, no
government may with impunity, ignore welfare-politics with regard to public
health, education, economic equality, position of women, children and
backward classes. In totality the directive principles operate well in the
planning process, but still have not been fully translated into action. It
cannot be denied that various governments have put in some efforts in this
direction.
The directive in Art. 39(b) has influenced legislators to fix land ceilings,
remove intermediaries such as zamindar, abolish hereditary proprietors, etc.
and made the tiller of the soil real owners of the land. The enactment of the
Hindu Succession Act (1950) have been important steps to implement the
directive principles of Uniform Civil Code.
In order to raise the standard of the poor particularly in rural areas as
prescribed in Art. 47, the government of India has launched various schemes
such as community development programme of 1952, IRDP, Drought Prone
Area Programme, Desert Development Programme and National Rural
Employment Guarantee Programme.
Difference/Relationship between DPSP and Fundamental Rights
The relationship or difference between DPSP and fundamental rights are as
follows:
1. The directive principles cannot be enforced by the courts; they are
declaratory while fundamental rights are enforced by the courts; they are
mandatory.
2. The directive principles and instrument of institutions of the government
while the fundamental rights are limitation upon the state actions.
3. The directive principles contains positive commands to the state to
promote a social and welfare state while the fundamental rights contain
negative injunctions to the state no to do various things.
4. The directive principles set the guidelines, for achieving socialistic goals
through democratic methods while the fundamental rights guarantees
some basic rights to individuals.
5. The directive principles are required to be implemented by legislation;
while fundamental rights are not required to be implemented by
legislation.
6. 25ht amendment 1971 added Art. 31-C in the constitution; which
provided that a law for implementing directives contained in Art. 39(b)
and (c) could not be struck down on the ground that it contravened rights
conferred by Art. 14, 19 or 31.
7. 42nd amendment, 1976 widened the scope of Art. 31-C so as to cover all
directive principles. Thus it gave precedence to all the directive principles
over the fundamental right contained u/Art. 14, 19 or 31. However, this
portion of 42nd amendment was struck down by SC in Minerva Millsvs
UOI. Thus, it is inoperative now.
The leading cases on the relationship between the fundamental rights and the
DPSP are as follows:
1. State of Madras vsChampakamDorairajan, AIR 1951 SC 228: in this
case the order of Madras government was challenged; which fixed quotas
for admission to medical and engineering colleges for different
communities. The government contended that the order was passed u/Art.
46 of the constitution.
The court held that, “the DPSP have to conform and run as subsidiary to
the chapter of fundamental rights”, because the latter are enforceable in
the principles cannot override the fundamental rights. The court held that
the order of Madras Court was valid.
2. In RE Kerala Education Bill, AIR 1957 SC 956, the court observed
that though the directive principles cannot override the fundamental
rights, nevertheless in determining the scope and ambit of rights the court
may adopt the principles of harmonious construction and should attempt
to give effect to both as much as possible.
3. Keshava Nanda Bharativs State of Kerala, AIR 1973 SC 1461: In this
case, insertion of Art. 31-C was questioned. The SC by 7-6 majority
overruled the Golaknath’s case which denied parliament the power to
amend fundamental rights of citizens. The court observed that the
fundamental rights and the DPSP are meant to supplement one another. It
can well be said that the directives prescribed the goal to be attained and
fundamental rights laid down the means by which the goal is to be
achieved.
Supporting the amendments Mathew J. explain the importance of the
DPSP, thus:
“I think there are right which are inherent in human beings
because they are human beings whether you call them natural
rights or by some other application is immaterial. As the
preamble indicates, it was to secure the basic human rights like
liberty and equality that the people gave into themselves the
constitution and these basic rights are essential features of the
constitution; the constitution was also enacted by the people to
secure justice – political, social and economic. Therefore, the
moral rights embodied in part IV of the constitution are equally
an essential feature of it, the only difference being that the moral
rights embodied in part IV are not enforceable as against the
state be a citizen in a court of law in case state fails to
implement its duty, but nevertheless they are fundamental in the
governance of the country and all the organs of the state
including the judiciary, are bound to enforce those directives.
The fundamental rights themselves have no fixed content most of
them are mere empty vessels into which each generation must
pour its content in the light of its experience. Restriction,
abridgement, curtailment and even abrogation of these rights in
circumstances not visualized by the constitution-makers might
become necessary.”
Delivering the leading majority judgment Sikri C.J. said, “ the
expression amendment of constitution” in Art. 368 means any change
in any of the provisions of constitution within the broad contours of
the preamble and the constitution to carry out the objectives in the
preamble and the directive principles, applied to fundamental rights
also. It would mean that while fundamental rights cannot be
abrogated, reasonable abridgement of fundamental rights can be
affected in the public interest.
The Chief Justice said, “if this meaning is to be given, it would
enable parliament to adjust fundamental rights in order to secure what
the directive principles direct to be accomplished, while maintaining
the freedom and dignity of every citizen.
4. Minerva Millsvs UOI, AIR 1980 SC 1789: In this case, Art. 31-C as
amended by 42nd amendment was challenged on the ground that it
destroys the “basic features” of the constitution. The SC struck down
Art. 31-C as amendment by 42nd amendment as unconstitutional.
The majority observed that the constitution is founded on the bed rock
of the balance between part III and IV. To give absolute primacy to
one over the other is to disturb the harmony of the constitution, which
is the essential feature of the basic structure. The goals set out in Part
IV have to be achieved without the abrogation of the means provided
by part III.
5. State of Tamil Nadu vs Abu KavurBai, AIR 1984 SC 626: In this
case the SC held that although the directive principles are not
enforceable yet the court should make a real attempt at harmonizing
and reconciling the directive principles and the fundamental rights
and any collision between the two should be avoided as far as
possible.
6. BandhuaMuktiMorchavs UOI, AIR 1984 SC 802: In this case, the
SC has held that although the directive principles are enforceable by
the court and the courts cannot direct the legislature or executive to
enforce them, once a legislation in pursuance of them has been
7. Unni Krishna vs State of A.P., [1993 (1) SCC 645]: In this case, the
passed, the courts can order the state to enforce the law, particularly
when no-enforcement of law leads to denial of a fundamental right.
SC held that the fundamental rights and directive principles are
supplementary and complementary to each other and the provisions in
part III should be interpreted having regard to the preamble and
directive principles.
5. Rights of the Minorities
There are many theocratic countries where equal rights are not extended toall of
its citizens. They have categorized citizens according to their believes. The
rights are also attached differently, we must thank the fathers of our constitution
who envisioned equal rights to all citizens and added special rights to Religious
and Linguistic Minorities. The Indian constitution guarantees equal rights to all
its citizens, violation of which by the State or Central Government can be
challenged in the High Court or Supreme Court as per the Article 32 of the
Constitution, such cases are taken up with utmost urgency. Article 14 of the
constitution states that, ‘the State shall not deny to any pers on equality before
the law or the equal protection of the laws within territory of India.’
It gives equal status to all citizens in freedom and dignity. It further makes clear
in Article 15, ‘the state shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth, or any of them, and it offers,
‘equal access to public facilities.’ The 93rd amendment added a new clause -
Clause 5 - to Article 15. This enables the enactment of laws, makingspecial
provisions for the socially and educationally backward classes, theScheduled
Castes and the Scheduled Tribes in educational institutions including private
educational institutions, except in minority institutions.
It is good to understand the Directive Principles and Fundamental Rights.
‘Fundamental rights are legally enforceable and guaranteed rights but directive
principles are not enforceable in any court of law. But under article 31-C, a DP
may be framed as law even if it abridges fundamental rights. The 42nd
amendment act allowed DPs to usurp FPs.’ Therefore the reservation policy is a
directive principle and it can be formulated as per the requirements. It makes
clear that the policy on reservation is a directive principle to help asocially
week entity to become better.
The constitution positively undermined the division of opportunities on the
basis of birth to any particular entity. It provides equal opportunities in
employments which is made clear in Article 16 ‘there shall be equality of
opportunity for all citizens in matters relating to employment or appointment to
any office under the state’. It also spells out in clear terms that, ‘no citizen shall
on grounds only of religion, race, caste, sex, descent, place of birth, resident or
any of them be ineligible for or discriminated against in any respect of any
employment or office under the State.’ It is also to be noted that the constitution
provides an additional provision to the government to enact laws to make sure
that no section of thesociety is left out. The Article 16(4) point out that
‘Nothing in this article shall prevent the State from making any provision for
the reservation of posts in favour of any backward class of citizens, which in
the opinion of state is not adequately represented in the services under the
state’. The constitution has not defined in clear terms what does it mean by
backwardness and how do we determine the backwardness. It has definitely
raised questions.
Education is seen as the only means to progress for an individual and society at
large. So the Article 29 states that ‘no citizen shall be denied admission into
any educational institution maintained by the State or receiving aid out of the
State funds on ground only of religion, race, caste, language, or any of them.’ It
gives a feeling that unaided educational institutions does not bind by this
Article. But opportunity is equally distributed to all.
The constitution of India is very clear in terms of Minority rights. The Indian
Constitution very well protects the minorities and it provides opportunity to
develop to its fullness. The recent communal clashesand accusations on
Minorities raises a question that whether the constitutionalrights are exercised
well? There is no political will or leadership to pursue the cause of the Minority
Community.
The Constitution nowhere defines the terms 'minority', nor does it lay down
sufficient indicia to the test for determination of a group as minority.
Confronted, perhaps, with the fact that the concept of minority, lie its problem,
was intercalate, the framers made no efforts to bring it within the confines of a
formulation. Even in the face of doubts being expressed over the advisability of
leaving vague justiciable rights to undefined minorities, the members of the
Constituent Assembly made no attempt to define the term while article 23 of
the Draft Constitution, corresponding to present articles 29 and 30, was being
debated, and, presumably left it to the wisdom of the courts to supply the
omission.
However, as the following would show, the opinions of the courts on the first
question appear to be the result of a half-hearted attempt, and, only indicate the
futility of depending on them in any search for an answer to the second
question.
What is a Minority? The word minority has not been defined in the
Constitution. The Motilal Nehru Report (1928) showed a prominent desire to
afford protection to minorities, but did not define the expression. The Sapru
Report (1945) also proposed, inter alia, a Minorities Commission but did not
define Minority. The U.N. Sub-Commission on Prevention of Discrimination
and Protection of Minorities has defined minority as under:
1) The term 'minority' includes only those non-documents group of the
population which possess and wish to preserve stable ethnic, religious or
linguistic traditions or characteristics markedly different from those of the rest
of the population;
2) Such minorities should properly include the number of persons sufficient by
themselves to preserve such traditions or characteristics; and
3) Such minorities should be loyal to the state of which they are nationals.
The initial courtroom attempt to answer the first question was made in In re
Education Bill where the Supreme Court, through S.R. Das C.J., suggesting the
techniques of arithmetic tabulation, held that the minority means a "community,
which is numerically less than 50 percent" of the total population. This
statistical criterion prevail with the Kerela High Court also which, in
A.M.Patroni v. Kesavan , defined minority to mean the same thing as it meant
to the Supreme Court.
The 'definition' refers to group of individual who are particularly smaller as the
majority in a defined area. It however does not indicate as to what factor of
distinction, subjective or objective are to be taken as the test for distinguishing
a group from the rest. Thus, while considering 'minority', a numerically smaller
group, as against the majority in a defined area, some place emphasis upon
certain characteristics commonly possessed by the members constituting the
minority and, to them, these characteristics serves as objective factors of
distinction. In this sense the term used to cover "racial, religious or linguistic
sections of the population within a State which differ in these respects from the
majority of the population."
Minority in other sense also means, a group constituting a minority group have
a feeling of belonging to one common unit, a sense of akinness or community,
which distinguishes from those belonging to the majority of the inhabitants.
They are "group held together by ties of common descent, language or religious
faith and feeling themselves different in these respects from the majority of the
inhabitants of the given political entity." There are also those who define
minority in terms of relationship between the dominant groups and minority. To
them it is much more important "to understand the genesis of the relationship
between dominant group and minority then it is to know the marks by the
possession of which people is identified as member of either." Rose defined
minority as a "group of people differentiated from others in the same society by
race, nationality, religion, or language - who both think of themselves as a
differentiated group and are though of by others as a differentiated group with
negative connotation."
Thus most of the definitions explained above place emphasis either upon
certain common characteristics present among the members of the groups
which serve as the marks of distinction and such objective test, and it is only in
some cases that the factor of relationship between the dominant and non
dominant group is regarded as the main determinant of minority status which,
in turn, at least some cases, renders relative numbers in and out of the group
concerned as irrelevant for definitional purpose.
A 'consciousness' of the difference with the majority on the basis of certain
characteristics is, therefore, considered as a distinguishing mark, and as such a
subjective element. thus, the definition which lays emphasis upon certain
subjective factors such as 'feeling' or 'consciousness' provide a test which is too
vague and uncertain, and more psychological in nature than real. Every
situation may not necessarily involve the assumption that the group in order to
deserve the title of 'minority' must be distinguishable from the majority by the
presence of the feeling or consciousness of its being different from the majority.
A group distinguishable from others by the possession of certain objective
characteristics, such as language, may not have a feeling or consciousness of its
distinct status of being counting as minority. The most acceptable definitions,
given by the Human Rights Commission, is not beyond the reach of argument.
That definition appears to be confined to those non dominant groups only
which, apart from having certain objective characteristics that are distinctively
of their own, wish to preserve the distinctive identities and are not willing to be
assimilated with the rest of the population.
No definition comes out to be comprehensive to cover all the varied situations,
illustrates the difficulty experienced in assigning limits to concept of minority.
This must remain the possible explainable reason why courts have not ventured
to formulate a general definition.
Indeed, as far as the limited purpose of article 30 is concerned, such a venture
would have been rather unnecessary too. For, religion and language being the
criteria indicated in article 30, a pre-condition for the latter acceptability, the
Constitution itself tends to confine the tasks of the courts to the ascertainment
whether the group claiming constitutional protection is the group identifiable by
the characteristics of religion or language and is numerically non dominant. The
courts have therefore, only to be sure for themselves that the basis of claim to
protection is ether religion or language.
Interpreting the words, "based on religion" in article 30, the Delhi High Court
rightly pointed out that the words would mean that "the only or the principal
basis pf the 'minority' must be their adherence to one of the many
religions…and that the other features of the minority are subordinate to the
main feature, namely, its separateness because of the religion." A similar
interpretation can also be placed on the words 'based on language'. That being
so, it can be concluded that for the purpose of article 30, a majority means a
non-dominant collectively distinguishable from the majority of population by
the objective factors of religion or language or language or a combination of
Constituent Assembly Debate:The whole debate in the Constituent Assembly
on article 23 of the Draft Constitution which later assumed the shape of the
present article 29 and 30, revolve round this issue: what rights could or should
be conceded to minorities? The reference to minorities was a reference to none
other than Indian minorities existing in India. The original draft of the
fundamental rights submitted to the Constituent assembly on April 16, 1947 by
the Sub-Committee on Fundamental Rights did not contain any provision
corresponding to article 30(1) and did not even refer to the word minority. The
letter submitted by K.M. Munshi to the Minorities Sub-Committee on the same
date when, along with some other rights, the rights now forming part of article
30(1) was proposed, made a reference on the term "national minorities".
The Drafting committee, however, sought, to make a distinction between the
rights of any section of the citizen to conserve its language, script or culture and
the right of the minorities based on religion or language to establish and
administer educational institutions of their choice and for this the committee
omitted the word 'minority' in the earlier part of the draft article 23
corresponding to article 29, while it retained the word in the latter part of the
draft article 23 which now forms part of the article 30(1).
Ambedkar sought to explain the reason the reason for substitution in the Draft
Constitution of the word minority by the words "any section" observing:
It will be noted that the term minority was used therein not in the technical
sense of the word 'minority' as we have been accustomed to use it for the
purpose of certain political safeguards, such as representation in the
Legislature, representation in the service and so on. The word is used not
merely to indicate the minority in the technical sense of the word, it is also used
to cover minorities which are not minorities in the technical sense, but which
are nonetheless minorities in the culture and linguistic sense. That is the reason
why we dropped the word "minority" because we felt that the word might be
interpreted in the narrow sense of the term when the intention of this
House….was to use the word 'Minority' in a much wider sense so as to give
cultural protection to those who were technically not minorities but minorities
nonetheless.
Ambedkar's explanation that the right was available not only to minorities in
the 'technical sense' but also to minorities in the 'wider sense' has an obvious
reference only to that part of Draft article 23 which now forms part of article
29(1) and not to that which is now clause (1) of article 30. His expiation,
therefore, may be taken to be an attempt to broaden the scope of clause (1) of
article 29 only so as to include within the term 'minority' other minority groups
also, as contemplated and illustrated by him, and thus to confine article 30(1) to
those minorities which he described as minorities in the technical sense, were
politically recognized and the most prominent amongst them were represented
in the Constituent Assembly also.
The whole problem, as far as this part of constitution is concerned, that engaged
considerable time and efforts of the framers was to achieve a consensus an a
constitutional arrangement, between the numerically dominant majority
considered as such on the national scene and the minorities referred to above- a
solution which could give the minorities a feeling of security against
discrimination, and security against interference with those characteristics
which had divided them apart from the majority. And, it is too obvious to be
noted that, at no stage was any section of this majority ever treated as 'minority'.
If these assumptions as accepted as truly reflecting the intention of those who
drafted and incorporate these provision in the constitutional document, with a
wishful hope that they were rendering a constitutional solution to the problem
of Indian minorities, it may be argued that where a minority is the historical or
national context and its claim is based on religion it must be defined and
ascertain in terms of the population of the whole country, irrespective of its
being in numerical majority in any particular state; and, where a group in not a
minority considered as such in the national context, but is still definable as
'minority' under Ambedkar's stretched meaning of the term, it may be
ascertained with reference to the population of the state concerned. The
argument is correct, it is submitted, if the provision in the question are viewed
against the historical prospective in which they were adopted, and are construed
to carry into effect the true spirit and intention of the constitution.
Protection of Interest of Minorities:Article 29 of the Constitution of India
defines the protection of interest of minorities: -
1) Any section of the citizen residing in the territory of India or any part thereof
having a distinct language, script or culture of its own shall have right to
conserve the same.
2) No citizen shall be denied admission into any educational institution
maintained by the State receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them.
Clause (1) gives protection to every section of the citizens having distinct
language, script or culture by guaranteeing their right to conserve the same. If
such section desires to preserve their own language and culture, the state would
not stand in their way. A minority community can effectively conserve its
language, script or culture by and through educational institutions and therefore
necessary concomitant to the right to conserve its distinctive language, script or
culture and that is what is conferred on all minorities by article 30(1). But
article 29(1), neither controls the scope of article 30(1) nor is controlled by that
article. The scope of the two is different. Article 29(1) is not confined to
minorities but extends to all sections of citizens. Similarly article 30(1) is not
confined to those minorities, which have 'distinct language, script or culture' but
extends to all religious and linguistic minorities. Further, article 30(1) gives
only the right to establish and administer educational institutions of minorities'
choice while article 29(1) gives a very general right 'to conserve' the language,
script or culture. Thus, the right under article 30(1) need not be exercised for
conserving language, script or culture.
Clause (2) relates to admission into educational institutions, which are
maintained or aided by state funds. No citizen shall be denied admission in such
institutions on grounds only of religion, race, caste, language or any of them.
Article 15 prohibits discrimination against citizen on ground of religion, etc.
but the scope of two articles is different. Firstly, article 15(1) protects all
citizens against the state where as the protection of article 29(2) extends to the
state or anybody who denies the right conferred by it.
Secondly, article 15 protects all citizens against discrimination generally but
article 29(2) is a protection against a particular species of wrong, namely,
denial of admission into educational institutions maintained or aided by the
state. Finally, the specific grounds on which discrimination is prohibited are not
the same in two articles. 'Place of birth' and 'sex' do not occur in article 29(2),
while 'language' is not mentioned in article 15.
The right to admission into an educational institution is a right, which is an
individual citizen, has as a citizen and not as a member of a community or class
of citizen. Hence a school run by a minority, if it is aided by state funds, cannot
refuse admission to children belonging to other communities. But the minority
community may reserve up to 50% of the seats for the members of its own
community in an educational institution established and administered by it even
if the institution is getting aid from the State. The state, however, cannot direct
minority educational institutions to restrict admission to the members of their
own communities. Article 29(2), however, does not confer a legal right on the
members belonging to other communities to freely profess, practice and
propagate their religion within the precincts of a college run by a minority
community. Article 29(2) cannot be invoked where refusal of admission to a
student is on the ground of his not possessing requisite qualifications or where a
student is expelled from an institution for acts of indiscipline.
To overcome the conflict with article 15 as well as article 29 the Constitution
(First Amendment) Act, 1951, added clause (4) to article 15 to the effect that
nothing in article 15 and article 29(2) shall prevent state from making any
special provision for the advancement of any socially and educationally
backward classes of citizen or for the schedule caste and the schedule tribes.
The state is empowered to reserve seats in state colleges for socially and
educationally backward classes of citizen or for SC and ST.
Rights of Minority to Establish and Administer Educational Institutions:Article
30 of the Constitution of India defines Rights of Minority to Establish and
Administer Educational Institutions: -
1) All minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.
[1-A) In making any law providing for the compulsory acquisition of any
property of an educational institution establish and administered by a minority,
referred in clause (1), the State shall ensure that the amount fixed by or
determined under such law for the acquisition of such property is such as would
not restrict or abrogate the right guaranteed under that clause.]
2) 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.
Clause (1) gives rights to all minorities based on religion or language the right
to establish and administer educational institution of their own choice. Article
29 and 30 are grouped together it will wrong to restrict the rights of minority to
establish and administer educational institution concerned with language script
and culture of the minorities. The reasons are: Firstly, article 29 confers the
fundamental rights on any section of the citizen which will include the majority
also where as article 30(1) confers all rights on all minorities. Secondly, article
29(1) is concerned with language, script or culture, whereas article 30(1) deals
with minorities based on religion or language. Thirdly, article 29(1) is concern
with the right to conserve language, script or culture, whereas article 30(1)
deals with right to establish and administer educational institutions of the
minorities of their choice. Fourthly, the conservation of language, script or
culture under article 29(1) may be by means wholly unconnected with
educational institutions, and similarly establishment and administer educational
institutions by a minority under article 30(1) may be unconnected with any
motive to conserve language, script or culture. A minority may administer an
institution for religious education, which is wholly unconnected with any
question of conserving language, script or culture. It may be that article 29(1)
and article 30(1) overlap, but the former cannot limit the width of the latter. The
scope of article 30 rests on the fact that right to establish and administer
educational institution of their own choice is guaranteed only to linguistic or
religious minorities, and no other section of citizens has such a right. Further
article 30(1) gives the right to linguistic minorities irrespective of their religion.
It is, therefore, not at all possible to exclude secular education from article 30.
The expression 'minority' in article 30 remains undefined though the court has
observed that it refers to any community which is numerically less than 50% of
the population of a particular state as a whole when a law in consideration of
which the question of minority right is to be determined as a State law. A
community, which is minority in specific area of the State though a majority in
the state as a whole, would not be treated as minority for the purpose of this
article. A minority could not also be determined in relation to entire population
of the country. If it was a state law, the minorities must be recognized in
relation of that state. But the fact that the expression minority an article 30(1) is
used to distinct from 'Any section of citizen' in article 29(1) lends support to the
view that article 30(1) deals with national minorities or minorities recognized in
the context of entire nation. In that case, however, article 30(1) would become
inapplicable to the national majority even if it is a minority in any particular
state, e.g., Hindus in Punjab or Jammu and Kashmir.
Although article 30(1) does not speak of citizens, the minority competent to
claim the protection of that article must be a minority of person residing in
India. 'The minority under article 30 must necessarily mean those who farm a
distinct and identifiable group of citizen in India'. Article 30(1) does not confer
upon foreigners not residents in India the right to set up educational institutions
of their choice. The right conferred on minorities is to establish educational
institutions of their choice. It does not say that minority based on religion
should establish educational institutions for teaching of their own language
alone. The article leave it to their choice to establish such educational
institutions as will serve both the purpose, namely, the purpose of conserving
their religion, language, or culture, and also the purpose of giving a thorough
general education to their children. Minorities are, however, not entitled to have
educational institutions exclusively for their benefit.
In D. A. V. College v. State Of Punjab, it was observed that, a linguistic
minority for the purpose of art. 30(1) is one which must at least have a separate
spoken language. It is not necessary that that language should also have a
distinct script for those who speak it to be a linguistic minority. Religious or
linguistic minorities should be determined only in relation to the particular
legislation which is sought to be impugned, namely that if it is the State
Legislature these minorities have to be determined in relation to the population
of the State. AryaSamajis have a distinct script of their own, namely Devnagri
therefore they are entitled to invoke the right guaranteed under art. 29(1)
because they are a section of citizens having a distinct script and under art.30(1)
because of their being a religious minority. Sub-sections (2) and (3) of s. 4 do
not in our view offend by themselves any of the rights of the petitioners either
under art. 29(1) or art.30(1) of the Constitution. Nowhere there is a mandate for
compelling Colleges affiliated to it either to study the religious teachings of
Guru Nanak or to adopt in any way the culture of the Sikhs.
Thus religious or linguistic minorities should be determined only in relation to
the particular legislation which is sought to be impugned, namely that if it is the
State Legislature these minorities is to be determined in relation to the
population of the State.
It was held that, religious instruction is that which is imparted for inculcating
the tenets, the rituals, the observances, ceremonies and modes of worship of a
particular sect or denomination. To provide for academic study of life and
teaching or the philosophy and culture of any great saint of India in relation to
or the impact on the Indian and world civilizations cannot be considered as
making provision for religious instructions. The State of Punjab is created as a
unilingual State with Punjabi as its language and if provision is made for study
of Punjabi language that does not furnish a ground for discrimination nor can
the provision for study of the life and teachings of Guru Nanak afford any cause
for complaint on grounds of violation of art. 14 of the Constitution. The right to
form association implies that several individuals get together and form
voluntarily an association with a common aim, legitimate purpose and having a
community of interest. The right extends inter alia to the formation of an
association or Union. Section 5 of the impugned Act does not effect the right of
D.A.V. College Trust and Society to form an association. Therefore, there is no
infringement of art. 19(1)(c).
The right conferred on minorities is to establish educational institutions of their
choice. It does not say that minority based on religion should establish
educational institutions for teaching of their own language alone. The article
leave it to their choice to establish such educational institutions as will serve
both the purpose, namely, the purpose of conserving their religion, language, or
culture, and also the purpose of giving a thorough general education to their
children. Minorities are, however, not entitled to have educational institutions
exclusively for their benefit.
Clause (2) is only a phase of non-discrimination clause of the constitution and
does not derogate provisions made in clause (1). The clause is expressed in
negative terms: the state is therefore enjoined not to discriminate in granting aid
to educational institutions on the ground that the management of the institutions
is in the hands of minority, religious or linguistic. The clause does not mean
that the state is competent otherwise to discriminate so as to impose restrictions
upon the substance of rights to establish and administer educational institutions
by minorities. The rights established by article 30 (1) is intended to be a real
right for the protection of the minorities in the matter of setting up of education
institution of their choice.
Kerla Education Bill CaseThe article first came up for interpretation before a
seven judge Constitution Bench constituted to consider the reference made by
the President under article 143 in In re Kerla Education Bill sponsored by the
Communist Government of the state which was stoutly opposed by Christians
and Muslims. Chief justice S.R. Das delivered the majority opinion. He spoke
for six judges- the sole dissent by justiceVenkataramaAiyar being confined to
the question whether minority institutions were entitled also to recognition and
state aid as part of the right guaranteed by article 30(1). C. J. Das held, inter
a) An institution, in order to be entitled to the protection, need not deny
admission to members of other communities.
b) It is not necessary that an institution run by religious minority should impart
only religious education or that one run by the linguistic minority should teach
language only. Institution imparting general secular education is equally
protected. The minority has a right to give "a thorough, good general
education".
c) Grant of aid or recognition to such institution cannot be made dependent on
their submitting to such stringent conditions as amount to surrendering their
right to administer to them. However the right to administer does not include
the right to misadministration reasonable regulations can be made.
d) Regulation prescribing the qualifications for teachers was held reasonable.
Those relating to protection and security of teachers and to reservation in favor
of backward classes which covered government schools and aided schools
alike, were "perilously near violating that right", but "at present advised" were
held to be permissible regulations. Provision centralizing recruitment of
teachers through State Public Service Commission and taking over the
collection of fees etc. were held to be destructive of rights of minorities to
manage the institutions.
Clauses of the Bill, which authorized the taking over of management in the
event of specified failings, in effect, annihilated the minorities' right to
administer educational institutions of their choice.
Minority Rights flow from Articles 14,15,19(1)(2) 21, & 26 (a). Thus while it is
true that it is only the minorities whose right to establish and administer
educational institutions is mentioned n article 30(i) it dos not follow the same is
denied to the majority communities. It was considered necessary like a special
mentioned for the right of minorities by way of extra assurance to it is not
correct to say that minorities were considered backward and needed
concessions though article 30(i) to bring them up. The object was to make that
they will not be discriminated against. It was not intended to pamper as favored
communities. It should follow therefore form articles 14 and 15 majority
communities have right to similar treatment at the hands of the in the matter of
recognition affiliation government aid or non displacement management in
respect of educational institutions established by majority as accorded to
minority institutions of course condition can and to be imposed in regard to aid,
affiliation and recognition in order to ensure standard of teaching but the same
have to be uniformly onerous and not be so drastic as to involve surrender by
the community or founder or management of its right to establish and
administer the institution.
The thesis that the majority in a system of adult franchise hardly needs any
action it can look after itself and protect its interests any measure wanted by
majority can without much difficulty be brought on the statute book because
majority can bet that done by giving a mandate to the elected representatives
only the minorities who need protection is with the utmost respect to the
anguished judge to naive to command acceptance. Modern parliamentary
democracy are run on a party system which in India the more so in the post
mandal is built largely on the basis of caste and communal co9nbination
Government are returned to power not on the basis of issues or mandates.
Managements functional institution do not work for a vote bank while their
teachers do that. Religions majority namely Hindus are not a homogeneous
monolith. It is a much-divided society. There are caster and sub caste division
and the same court defence to the legislative and executive wisdom on article
has no made things easier electoral arithmetic has led to all sorts of and
combination.
Apart from articles 15 and 15(I) this right to establish and administer
educational institutions also flows as seen above form articles 19(i) (g) and
26(a), which make no distinction between majority and minority communities.
The right of students to education as a fundamental right under article 21, also
simples that they as well as their parents have the right to choice of institutions
in which they would like the former to be educated. Every community has a
right to found and administer educational and other charitable institutional and
to run them according subject perceptions of what is best of the community and
for the institution subject of perceptions of what is best for the community and
for the distinction for religion or language minority or majority.
The only consequence of this will be that provisions relating to displacing of
managements through statutory schemes of administration or through take over
of institutions and appointment of authorized controllers and also those
divesting the management of the powers of appointment and discipline
pertaining to teachers will have to be treated as unconstitutional in so far as
they relate to majority institutions too to the same extent as they have been
treated vis-à-vis minority institutions and it will not be such a bad thing from
the educational angle either the ground reality is that just as nationalization of
many private industries on ground of mismanagement by industrialists has
proved counter productive. so also has the taking over of the management
institutions. The cause for interference in each case was the acts of
mismanagement and dissipation on the party of private mil owners or school
college managers. But the bureaucrats displacing them have by and large not
felt any commitment to the industry institution at all and have succumbed to
political pressures with the result that things have only worsened instead of
improving. That is why they are now being re-privatized it is only though de
politicization of control over the institutions that the management can be better
and more evenly disciplined. Deprivation of management of their power in
regard to appointment and discipline of teachers has likewise led to a steep fall
in discipline and standard. Many teachers do not care to listen even to their
principal or head of department what to say of the management. Absenteeism
indulgence in private tuitions and running of coaching schools are the order of
the day. Of course regulatory provision to the same extent not more noels as
have been accepted to be necessary for the protection of teacher of minority
institutions would in any case continue in relation to teachers of majority
institutions also. The trend the work over is now for less and less of
government. If misadministration can be prevented in the case of minority
institutions without emasculating the management the same should be minority
institution too. As per Ray C.J. in St. Xavier's and per Jag Mohan Reddy J. all
institution irrespective of any denominational distinction should be places of
workshop of learning for students
Conclusion: The courts, however, seem to have been persuaded by practical
compulsion rather than be swayed away by a feeling of faithfulness to the spirit.
Their course of opinion seems to have been determined by some of the
followings:
i. That provisions in question seeks to protect minorities against state action,
which term includes laws and also under them, executive actions.
ii. That ours being a federal democratic system, political and legislative
processes operate not only from the national center of power but also from the
iii. That these states are autonomous in their respective legislative spheres-and
laws are passed by majority votes.
iv. That minorities, considered as much on the national level, do constitute
numerical majority in some states.
v. That these majorities may, by their laws, deny the protection to the non-
dominant group which the Constitution so emphatically seeks to secure.
vi. That these majorities may, by their numerically strength, overshadowed the
distinct shadow the distinct characteristics and individuality of the non-
dominant groups, and the latter may have to live under a psychological fear of
being discriminated and overwhelmed.
vii. That it was this fear in some sections of some minorities at least, which had
pervaded the politics the politics of pre-partition India, and that it was on this
premise that minority rights were demanded and conceded in Constitution
Assembly.
viii. That it is this fear, which still continues to be the core component of the
minority component.
ix. That the assurance to protection for minorities can tell its true meaning only
when a non-dominant group in a state is define and ascertain as 'minority'
where the law in question is a state law, eve though the group happens to be a
part of the 'majority', considered a majority in the context of the whole country.
x. That the same reason that became the basis for article 29 and 30 to find a
place in the category of justiciable Fundamental Rights must be valid in this
situation also.
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