Summary

Polity Class 14

A brief overview of the previous class (05:00 PM)

ARTICLE 20 OF THE INDIAN CONSTITUTION (05:03 PM)

b) No person shall be prosecuted and punished for the same offence more than once. It is known as "No double jeopardy".
c) No person accused of any offence shall be compelled to be a witness against himself. It means "No self-incrimination".
It means that nobody can force one to give evidence against oneself.
But there are limitations that are imposed
The first provisions (No ex post facto law) are applicable only in the case of criminal laws but not to civil laws or tax laws i.e. the government can have retrospective tax legislation.
[* A law should come into effect after it is passed. Retrospective taxation is against the principle of natural justice]
SC had come out with a judgment in the Vodafone tax dispute with the Government of India. In order to overcome the SC judgment, Parliament has passed retrospective tax legislation. It led to conflict between Vodafone and GoI. It has also adversely impacted FDI coming into India.
Finally, the GoI had reached an agreement with Vodafone wherein the government would return the tax paid by Vodafone and Vodafone would withdraw the case.
As part of improving the ease of doing business, the government has removed retrospective tax legislation from our tax laws.

ARTICLE 21 OF THE INDIAN CONSTITUTION (05:30 PM)

Article 21- Protection of life and personal liberty.
Article 21 declares that no person shall be deprived of his life or personal liberty except according to the procedure established by law.
This right is available to both citizens as well as non-citizens/ aliens.

The political history of Article 21 (05: 33 PM)

Our constitutional forefathers were committed to FRs of citizens. FRs protected citizens from arbitrary actions of the state.
In a society, there will always be a conflict between Individual self-interest v/s societal welfare.
Individual self-interest is reflected in FRs. Western liberal philosophy is more inclined toward the self-interest of the individual.
So we included the Right to property in FR, as we were guided by Individual self-interest.
When there is a conflict between Individual self-interest v/s societal welfare, We need to give importance to Societal welfare.
[* Why?- In society, Human beings are always interdependent. We need to sacrifice some of our self-interests for the welfare of society. ]
If the conflict is between DPSP and FR, then-
The government has said that we must give importance to DPSP as well.
Our constitution gave importance to FR.
This conflict immediately started after independence, as Government wanted to bring land reforms.
Acharya Binoba Bhave started the Bhoodan movement, but it was not successful. So the government came out with the land ceiling Act. It was struck down by SC as the Right to property was a Fundamental right.
The government added the IXth schedule to our constitution. Any legislation which is part of the IXth schedule can not be scrutinized by Judicray for its constitutionality.
At that time, Judiciary remained passive. [* Why?- Our judiciary at the time said that the government is enforcing its socialist agenda]
All the leaders at that time were part of the Indian national movement and they already sacrificed too much so the judiciary did not interfere in the socialist agenda.
This is the time, the Procedure established by law was enforced.
The procedure established by law (05:57 PM)
It is a British feature. In the UK, the parliament is sovereign, and it has an unwritten constitution.
It means the judiciary will not interfere in the functioning of the legislature and it will only check whether the executive is implementing the law as per the procedure.
The judiciary will only look into whether the procedure was followed or not. They will not look into the content and intent of the law.
In India, the constitution is supreme.
When parliament came out with the IXth schedule, it was against the FR.
But SC in the A K Gopalan case, mentioned the procedure established by law and followed the British method.
By the early 1960s, the Indian economy was facing a severe crisis. This is the time Professor Robert Malthus gave his population theory.
Food production grows in Arithmetic progression whereas population grows in Geometric progression. In time, the country will not be able to feed its population and the country will collapse.
The same thing happened in India, the population was growing and food grain production was not increasing.
India got free food grain from the USA, under the PL-480 scheme. It was called "Ship to Mouth condition"
The economic model was not a success, In this scenario, Judiciary came to the rescue.
In the famous Golaknath case of 1967, SC changed its previous stance (doctrine of prospective overruling) by stating that in case of conflict between FRs and DPSP in the future, fundamental rights will be given importance.
Indira Gandhi's government came out with Privy Purses Abolition. This ordinance was challenged in SC and it was struck down by SC.
Indira Gandhi's government decided to do Nationalization of banks, and again it was struck down by SC.
In 1971, elections were held, and Gareebi hatao was the theme.
24th Constitutional Amendment was passed- the heading of Article 368 was changed from Procedure to amend the constitution to power to amend the constitution.
This Constitutional amendment Act can not be called a LAW under Article 13 of the Indian constitution.
SC reacted in the Keshavanand Bharti case, 1973, by stating that parliament can amend any part of the constitution including FRs. It also stated that parliament can not amend the Basic structure of the constitution. The basic structure will be defined in a case-by-case basis by SC.
SC in the Maenka Gandhi case, came out with Due process of Law.

ARTICLE 21- A BRIEF HISTORY (06:43 PM)

Immediately after the commencement of the constitution, the country witnessed conflict between the FRs and DPSPs. While FRs focussed on individuals, and the political and civil freedoms of people, DPSPs emphasized on collective economic and cultural freedoms of society.
Parliament had come out with the 1st Amendment to the constitution that restricted the scope of Article 13 by adding the IXth schedule to the constitution.
SC in the famous A K Gopalan case, 1950 has defined Article 21 in a narrow manner. It said that protection against the state under Article 21 is available only in case of arbitrary executive action and not from arbitrary legislative action.
SC has ruled that it was strictly following British legal practices wherein parliament has the sovereign power to make any legislation. The role of the judiciary is restricted to only to procedure established by law i.e. it means the judiciary will look into only whether the executive has implemented the law according to the procedure mentioned. Judiciary would not go into either the content of legislation or the intent behind the legislation.
Situation post-Keshavanand Bharti case
Maenka Gandhi's passport was confiscated. The government argued that if the person would be travelling abroad and causing harm to the interest of the country then the passport can be confiscated. It was an arbitrary action by the state.
SC, in Maenka Gandhi's case, SC came out with Due process of law. It was a feature of the American system earlier. SC stated that it will not only look at the procedure but also will look at the Intention behind the law. It opened the floodgates of judicial activism.
It also expanded the scope of Article 21- It said every person has the right to have a DIGNIFIED life.
SC in Maenka Gandhi v/s UOI case 1978 has ruled that the Right to life and personal liberty also includes the right to have Dignified Existence. It has expanded the scope of Article 21 by introducing the concept of Due process of law i.e. Judiciary would not restrict itself to procedure established by law but also look into the content and the intent behind the implementation.
The judiciary can question arbitrary legislative action also as part of due process of law.
From 1978 onwards, SC expanded the scope of Article 21 to include the Right to health, Right to livelihood, Right against inhuman treatment, Right to travel abroad, Right against bonded labour, Right to education, Right to sleep, Right to marriage, Right to information, Right to sustainable development, Right to Free legal aid, Right of women to be treated with decency and dignity, Right to forget, and Right to privacy, and so on.

ARTICLE 22 OF THE INDIAN CONSTITUTION (07:18 PM)

Protection against Arrest and Detention.
Article 22 grants protection to persons who are arrested or detained. There are two different types of detention
a) Punitive detention
b) Preventive detention
Punitive detention is to punish a person for an offence committed by him after trial and conviction in a court.
Preventive detention means the detention of a person without trial and conviction by a court. Its objective is to prevent a person from committing an offence in the near future. It is only a precautionary measure and is based on suspicion.
Punitive detention (07:29 PM)
When a person is arrested under ordinary laws, Article 22 grants certain rights
a) Right to be informed on the grounds of arrest.
b) Right to consult and be defended by a lawyer.
c) Right to be produced before a magistrate within 24 hours, excluding travel time.
d) Right to be released after 24 hours unless the magistrate extends the period of detention.
These safeguards are not available to an enemy alien or a person arrested under preventive detention law.
SC also ruled that the safeguards are not available in other situations like being arrested due to failure to pay income tax, being arrested under the orders of a court, and in case of deportation of an alien.
Preventive detention
It is available both to citizens and aliens.
The detention of a person cannot exceed 3 months period unless an advisory board consisting of judges of HC find sufficient reason for extending detention.
The person must be informed about the reasons for his detention however, the facts which are considered to be against the public interest need not be disclosed.
The person should be given to make a representation against the detention order.
How can government detain one?- On a mere suspicion that one may cause harm to the security of the nation, the threat to public order.
Parliament has the power to make legislation on preventive detention connected with the Defense, Foreign affairs, and security of India.
Both Parliament, as well as the state legislative assembly, can concurrently make a law on preventive detention for reasons connected with the security of the state, Maintenance of Public order, and maintenance of supplies & essential services.
Since Independence, many preventive detention laws have been enacted by parliament (07:46 PM)
Maintenance of Internal Security Act(MISA)
NSA 1980- National security Act.
Prevention of Black marketing and maintenance of supplies of essential commodities Act 1980. It is still in operation
UAPA, unlawful activities prevention Act 1967, amended in 2004, 2008, 2012, and 2019.
No democratic country in the world has preventive detention as part of its constitution. USA and UK have removed them.
The UK had preventive detention during the world wars but later it was removed. The USA never had preventive detention.
Question:- Discuss important SC judgments related to Article 21 and also analyze their impact on the scope of article 21. (10 marks/ 150 words)

The Topic for the next class:- Article 23 of the Indian constitution.