1
Summary
Polity Class 17

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

WRITS (05:05 PM)

  • MANDAMUS
  • The writ of mandamus can not be issued against a private individual or a body
  • It can not be issued when the duty is discretionary and not mandatory. 
  • To enforce departmental instruction that does not possess statutory force. 
  • It can not be issued against the President of India or the state Governors. 
  • It can not be against the Chief Justice of the HC acting in his judicial capacity. 
  • To enforce a contractual obligation. 
  • PROHIBITION
  • It means "To Forbid"
  • It is issued by an HC to a lower court or to a tribunal to prevent the latter from exceeding its jurisdiction that it does not possess. While Mandamus directs activities, Prohibition directs inactivities. 
  • Prohibition can be issued only against Judicial and Quasi-Judicial bodies. [Judicial bodies- SC, HC, Sessions court, etc; Semi-judicial bodies/Quasi-judicial bodies- Tribunals, They do not have full judicial powers. They have the power of Civil court i.e. they can impose fines. ]
  • It can not be issued against Administrative bodies, Legislative bodies, and Private individuals. 
  • CERTIORAI (05:20 PM)
  • It means "To be Certified"
  • It is issued by a higher court to a lower court or to a tribunal to either transfer a case pending before the lower court to a higher court or to quash the order of a Lower court. 
  • It can be issued in case of excess jurisdiction or lack of jurisdiction or error of law. 
  • While Prohibition is preventive in nature, Certiorari is both preventive as well as curative. 
  • It can be issued only against Judicial and Quasi-judicial bodies and not against administrative bodies, legislative bodies, and private individuals. 
  • QUO WARRANTO
  • It means "By What Authority or Warrant"
  • It is issued by the court to enquire into the legality of the claim of a person to a public office. 
  • This writ can be issued only in case of substantive public office of a permanent character created by a statute or by a constitution. 
  • It can not be issued against Private offices or Ministerial offices.  

ARTICLE 33 OF THE INDIAN CONSTITUTION (05:49 PM)

  • It empowers the parliament to restrict or to abrogate the FRs of the members of the armed forces, Paramilitary forces, Police forces, Intelligence agencies, and other forces. 
  • It is conferred only on Parliament and not one state legislature. Any law made by the parliament can not be questioned in any court. 

ARTICLE 34 OF THE INDIAN CONSTITUTION (05:55 PM)

  • It provides for the restrictions on FRs while Martial law is in operation in any area within the territory of the country. 
  • It can not be challenged in any court on the grounds of violation of FRs. 
  • This concept of martial law is taken from the British Legal system. There is no specific provision in the constitution that authorizes the executive to declare martial law. It is imposed under extraordinary circumstances. 
  • Military authorities are given extraordinary powers under Martial law. 
  • Army can impose restrictions on the Rights of civilians when martial law is in operation. 
  • SC has ruled that the imposition of Martial law does not automatically result in the suspension of Habeas Corpus. 

MARTIAL LAW V/S EMERGENCY (06:04 PM)

  • Martial law affects only FRs whereas national emergency affects not only FRs but also center-state relations and the functioning of the parliament also. 
  • Martial law suspends Government and ordinary courts. Whereas, Government and ordinary courts can continue in the National Emergency
  • Martial law can be imposed to restore the breakdown of law & order, Whereas, A national emergency can be imposed for war, external aggression, or an Armed rebellion. 
  • Martial law is imposed in some specific area/ territory of the country Whereas, a national emergency can be imposed either in the whole of the country or in any part of the country. 
  • Martial law has no specific provision in the constitution. It is implicit in Article 34. Whereas, National Emergency has specific provisions in the constitution under Article 352. 

ARTICLE 35 OF THE INDIAN CONSTITUTION (06:12 PM)

  • It gives powers to parliament to make laws to give effect to certain specified FRs. It contains the following provisions. 
  • 1) Parliament can prescribe Residence as a condition for certain employments. 
  • 2) Parliament can empower courts other than SC and HCs to issue writs (Article 32)
  • 3) Parliament can restrict the application of FRs to members of the Armed forces. 
  • 4) During martial law parliament can indemnify any public servant for any act done during the operation of Martial law. 
  • 5) Parliament can also prescribe Punishment for those acts that are declared offensive under FRs- Untouchability, trafficking in Human beings, and forced labor.

ARTICLE 31 OF THE INDIAN CONSTITUTION (06:20 PM)

  • It is originally a right to property. 
  • Right to the property is part of Article 19 (1)(f) and Article 31. 
  • 44th Constitutional Amendment removed the right to property from FRs by repealing Article 19(1)(f) and Article 31 from Part III of the Constitution. 
  • It was included in new article 300A in part XII of the constitution. It is only an ordinary legal right and is not an FR. 
  • FRs v/s Ordinary legal rights
  • Ordinary legal rights can be regulated by Parliament without any constitutional amendment. It can be done through ordinary law passed by the parliament. In the case of FR, they can be amended only with a special majority in both LS and RS. 
  • In the case of ordinary legal rights the aggrieved person cannot directly move SC but one can approach HCs. In the case of FRs, they can approach SC directly. 
  • Parliament can amend FRs but this power is not absolute. The judiciary can declare them as Null and Void if they violate the basic structure of our constitution.
  • In the case of FRs, the judiciary can protect citizens from both executive as well as legislative actions and in the case of ordinary legal rights they can be protected only against executive actions

RIGHT TO PROPERTY (06:33 PM)

  • Under Article 19(1)(f), every citizen has the right to acquire, hold and dispose of property 
  • Under Article 31, every person, citizen or non-citizen has the right against deprivation of his property i.e. no person shall be deprived of his property except by authority of law. The state can acquire property only on two conditions
  • a) It should be for public purposes. 
  • b) It should provide compensation to the owners of the land. 

DIRECTIVE POLICY OS STATE POLICIES (07:00 PM)

  • Our constitution makers were criticized for not including Gandhian ideologies so they added DPSPs to include the Gandhian ideologies. 
  • DPSPs are borrowed from the Irish constitution. They provide moral and ethical guidelines to the state while formulating public policies. 
  • Part IV of our constitution contains DPSPs from Articles 36 to 51. They resemble the instrument of instruction contained in the GOI Act 1935. 
  • They are comprehensive in nature covering social, economic, and political aspects of governance.
  • Since they are only directives, they are non-justiciable but they help the judiciary in examining the constitutional validity of a law. For example- Judiciary can declare a law as constitutionally valid if it gives effect to DPSPs even if it imposes reasonable restrictions on Article 19 and Article 14. 
  • Article 36 of the Indian constitution. 
  • It defines state and the definition of state is the same as under Article 12.  
  • Article 37 of the Indian constitution 
  • Application of the principles contained in part IV shall not be enforceable by any court. It means DPSPs are non-justiciable in a court of law. 
  • Article 38 of the Indian constitution 
  • It is socialistic in its orientation. Its objective is to reduce inequalities between people and regions
  • India must focus on BRD i.e. Balanced regional development. The states are not at the same level of development. There are "islands of prosperity in the ocean of poverty"
  • Article 39 of the Indian constitution (07:16 PM)
  • It is also socialistic in its orientation
  • a) Article 39 (a)- Citizens, men, and women equally have the right to an adequate means of livelihood. Examples- Pradhan Mantri Kaushal Vikas Yojana, Skill India mission etc
  • b) Article 39 (b)- The ownership and control of the material resources of the community are so distributed as best to subserve the common good- Example- land ceiling legislation, land reforms
  • c) Article 39 (c)-That the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. 
  • d) Article 39 (d)-That there is equal pay for equal work for both men and women. Example- Payment of Wages Act
  • e) Article 39 (e)-That the health and strength of workers, men, and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Example- Factories Act. 
  • f) Article 39 (f)- That children are given opportunities and facilities to develop in a healthy manner 
  • Article 39A of the Indian constitution 
  • It was inserted by 42nd Constitutional amendment. 
  • It talks about equal justice and Free legal aid to protect weaker sections of society
  • Article 40 of the Indian constitution 
  • Organization of village Panchayats
  • Article 41 of the Indian constitution 
  • Right to work, to education, and to public assistance in cases of Unemployment, old age, and sickness
  • Right to work- NREGA, Right to education- RTE Act. 
  • Article 42 of the Indian constitution 
  • Provision for just and humane conditions of work and maternity relief. 
  • Article 43 of the Indian constitution 
  • Living wage for workers. 
  • Workers should be paid minimum wages to have a decent standard of life. 
  • Article 43 A of the Indian constitution 
  • It was inserted by 42nd Constitutional amendment. 
  • Participation of workers in the management of Industries. 
  • Article 43B of the Indian constitution 
  • Promotion of cooperative societies. 
  • It was inserted by 97th CAA in 2011
  • Article 44 of the Indian constitution 
  • Uniform civil code
  • Article 45 of the Indian constitution 
  • Provision for early childhood care and education to children below the age of six years. 
  • Article 46 of the Indian constitution 
  • Promotion of educational and economic interests of scheduled caste, scheduled tribes, and other weaker sections. 
  • Article 47 of the Indian constitution 
  • The state must raise the level of nutrition and the standard of living and must also improve public health. 
  • Example- A mid-day meal scheme, Food Security Act, PMJAY
  • Article 48 of the Indian constitution 
  • Organisation of agriculture and animal husbandry. 
  • It includes the prohibition of cow slaughter. 
  • Article 48 A of the Indian constitution 
  • It was added by the 42nd CAA. 
  • Protection and improvement of the environment and safeguarding of forests and wildlife. 
  • Article 49 of the Indian constitution 
  • Protection of monuments of national importance
  • Article 50 of the Indian constitution 
  • Separation of the judiciary from the executive 
  • Article 51 of the Indian constitution
  • Promotion of International peace and security. 

UNIFORM CIVIL CODE (07:40 PM)

  • Before the advent of the Britishers, India was governed by Islamic laws i.e. Sharia and Hindu laws. 
  • Britishers brought certain reforms in the Hindu society (Widow remarriage, marriage, etc) which were not liked by the orthodox class and the 1857 revolt happened. 
  • After 1857, the power was transferred from Company to the crown.
  • 1860- IPC, CrPC etc were brought and reforms were taken. They have prescribed different kinds of punishment committed by people. The punishment was same for each person belonging to any caste, religion etc. 
  • Civil laws= Marriage, divorce & Alimony, inheritence, adoption & maintenance, Succession, Property etc
  • Country was already partitioned on the religious lines so we needed to give assurance to the minorities that their interest can be safeguarded. 
  • Why reservations given to women failed?
  • Patriarchial society in India
  • Women do not act as powerful pressure groups which can influence the electoral outcomes [* Whereas SC, ST, and OBC act as powerful pressure groups]
  • Political Populism in the country.   

The topic for the next class: is- Uniform Civil Code, Fundamental Duties and Q&A discussion.