The Constitution of India
The Constitiution of India occupies a place of pride in legal and political circles. It is flaunted as being one of the world’s liberal constitutions, besides being the legthiest written document, consisting of 395 articles in all, covering subjects ranging from citizenship, constitution of the union and states and the relationsip between the two, to elections, emergency provisions, special provisions for certain classes and constitutional amendments.
However, since is adoption on November 26, 1949, and 60 amendments later, the Constitution as it stands today, is a watered down version of the original. Within a short span of 41 years, it has been amended as many as sixty times, out of which fifty four amendments were initiated by the Congress Government alone, with the result that with each new amendment, the Executive and Legislature annexed more and more power for themselves while seeking to subjugate the authority of the judiciary, that is to say, the Supreme Court and the High Courts, and thereby undermining the sanctity of the Constitution itself.
The Preamble to the Constitution deelares that the supreme document draws its authority and power from the collective will of the PEOPLE. But how many Indians are actively aware of this, or of their fundamental rights to live in dignity? How many Indians, and particularly those in power, have endeavouted to live upto the expectations of Pandit Nehru’s motion of pledge which he had made in the Consitution Hall at midnight of August 14, 1947:
"Long years ago, we made a tryst with destiny and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially. At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom. A moment comes, but rarely in history, when we step out from suppressed finds utterance. It is fitting that at this moment we take the pledge of dedication to the ervice of India and her people, and to the still larger causeet humanity."
It is now 41 years since we got out freedom, but have we kept the tryst with destiny that Nehru spoke about? The present day reality of exploitation, corruption and violence is a far cry from the higher kind of freedom that Tagore envisioned in his poem, ‘Where the mind is without fear’. Independence, the five year plans, and Government’s welfare schemes have mainly resulted in the rich getting richer and the poor poorer: thereby serving only to widen the gulf between the rich minority and the poor majority. Capitalism in theguise of socialism, like the proverbial wolf in sheep’s clothing, is busy accentuating these barriers, with the result that the middle and higher classes are completely alicnated from the needs and problems of the poor.Since we claim that our democracy rests on the bedrock of the Constitution, let us study it further : (See box).
The Preamble to the Constitution of India
We, the people of India, having solemnly resolved to constitute India into a Sovereign, Socialist*, Secular*, Demoeratic Republic and to secure to all citizens :
- JUSTICE, social, economie and political;
- LIBERTY of thought, expression, belief, faith and worship;
- EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity* of the Nation;
In our Constituent Assembly this twenty-sixth day of November, 1949, do hereby adopt, enact and give to ourselves this constitution.
* Inserted by the Constitution (Forty-second Amendment) Act, 1976, Sec. 2, (w.e.f. 3.1.1977).
The Preamble, the Fundamental Rights and the Directive Principles reflect the spirit of the constitution, and the administration or translating into action of the Constiution, is done through its three arms, viz. The Legislature, the Executive and the Judiciary.
The Three Arms of the Constitution : Legislature, Executive and Judiciary
It is concerned primarily with making laws, through the Parliament and the State Legislatures. Laws here include substantive and procedural laws, rules, regulations, bylaws etc. All legislative proposals originate in the form of Bills in either House of Parliament -- with the exception of Money Bills. Every Bill undergoes three stages before it is enacted as a law :
- Introduction of the Bill;
- Discussion of the principles of the Bill in detail; and
- Discussion on whether is should be passed.
Now, obviously all this takes time and while passing any Bill, the Constitution specifies that there should be a minimum of 55 members in the Lok Sabha and 24 in the Rajya Sabha present. However, most of the bils in the Lok Sabha are rushed through in the absence of quorum, and this has of late become almost a tradition. A Bill amending the Constitution is a serious matter and must comply with the procedure laid down in Article 368 (2) of the Constitution. But what happens in reality is an altogether different story. In June 1975, for example, the Allahabad High Court found Mrs. Indira Gandhi, then Prime Minister, guilty of having committed corrupt electoral practices, and consequently declared her disqualified as a member of the Lok Sabha for a period of six years. Alarmed at this, Mrs. Gandhi introduced a constitutional amendment Bill, which in effect directed the Supreme Court to allow Mrs. Gandhi’s appeal against the Allahbad High Court’s verdict. The Bill was introduced in the Lok Sabha on August 7, 1975. The Lok Sabha on August 8th. On the 9th of August it was ratified by the requisite number of State Assemblies and the President gave his assent to the Bill on August 10th. On August 11th, 1975 the Act was gazetted and came into force the same day! Here it was not only a question of quorum, but of the extreme haste with which the Parliament was ‘misused’ by Mrs. Gandhi to pass a consitutional amendment act within a record time of four days only to place herself above the ment act within a record time of four days only to place herself above the law, which in effect amounted to the Parliament placing itself above the Constitution -- a situation not even dreamed of by the Founding Fathers!
It stands for the government of the ruling party of the country. It is composed of the Prime Minister and his cabinet colleagues, and the various government departments and bureaucratic set up of the country. The Executive is vested with poweres, duties andresponsibilities to see that the laws made by the Legislature are enforced and implemented, and in general govern the country. It is accountable to the people through the Lok Sabha.
Although the Executive is supposed to be subserfient to thelegislature, in reality it is opposite. During Mrs. Gandhi’s rule, it became quite obvious that she alone, could sway the whole Parliament and take the law into her own hands and place herself above the Constitution. She it was who imposed the infamous Emergency on midnight of June 25, 1975 for a period of 19 months, without even consulting her cabinet colleagues. A single indivdual, voted by the people and expected to hold the office in trust for them was personified with the State, and placed above the laws of the land.
The role of the judiciary is to act as the guardian of the Constitution and it is the final aurhority to be referred to in any case of dispute or confliet concerning legal matters, or in the running of this democraey. It provides redress against injustices, through the courts which are ranked in a single hierarchy with the Supreme Court at the top. Although the judiciary, or the Supreme Court is not expected to interfere with the day-to -day functioning of the government and the policies it makes, in the larger interests of the people, it can and should pass judgements and voice its opinion and conecrn without fear or favour.
During Mrs. Gandhi’s rule, the executive not only controlled the legislature, but also sought to subjugate the authority of the judiciary -- particularly the High Courts and the Supreme Court through the draconian Forty Second Amendment Act of 1976, now repealed. However, in a landmark judgement in 1967, the Supreme Court in the Golaknath case (AIR 1967 SC 1643) led by Chief Justice Subba Rao struck down 17 Central and State enacted statutes holding that any amendment under Article 368, is "law" for the purpose of Article 13 (2) and if such amendment in fringes upon any of the fundamental rights, they are void, thereby establishing the supremacy of the judiciary and ensuring the protection of the fundamental rights.
Articles 14-32 of our Constiution guarantees certain basic human rights to all the citizens of India, known as the fundamental rights. They are based on the universal human need to grow into the fullness of life and to discover, realise and live the meaning of life in each individyal’s unique way. They are not privileges or favours but rights. However, since they are not cannot be absolute or unlimited, their exeercise can be reasonably restricted by the state on various grounds. Any citizen whose fundamental right is violated, can find redress directly from the Supreme Court through the legal remedies provided in the Constitution. The fundamental rights may be summarised as follows :
|Right to equality |
|Right to freedom |
|Protection against conviction|
|Protection of life and personal liberty|
|Protection against arrest and detention|
|Right against exploitation|
|Right to freedom of religion|
|Cultural and educational rights|
|Rights to constitutional remedies |
|Source : P.D. Mathew. Do you know your fundamental rights ? ISI Booklet, New Delhi, 1995|
Let us briefly go over these rights.
Rights to Equality :
Articles 14-18 guarantee the following rights :
Article 14 : Equality before the law or equal protection of the laws.
It means that :
- Every person, whatever be their rank or condition, is subject to the jurisdiction of the ordinary courts.
- No one is above the law and every person may sue or be sued.
- Equal protection shall be secured to all persons (Indian citizens as well as foreigners, including juristic persons) within the territory of India, in the enjoyment of their rights and privileges, without discrimination
Article 15 : Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
While Article 14 may be related to the Preamble to the Constitution, directly embodying the ideal of equality, Article 15 to 18 enact particular application of the rule. The right guaranteed by Article 15 is conferred on citizens of India alone. If the State discriminates against its citizens on grounds only of religion, race, caste, sex, place of birth, or any of them, then the citizen so discriminated against, can move the High Court and Supreme Court to challenge the law or State action and have it struck down, by the court, as violative of Article 15. This article congers on citizens the fundamental right of access to shop, public restaurants, hotels and places of public entertainment, to the use of wells, tanks, bathing ghats, roads and places of public resort maintained by the State and dedicated to the use of general public, irrespective of caste, creed, sex or place of birth of the citizen. Futhermore, Article 15 (3) allows the State to make special laws for women and children and for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes [Article 15(4)].
Article 16 : Equality of opportunity in public employment :
This article guarantees to all citizens equal opportunities in matters of employment or appointment to any office under the State. No citizen can be discriminated against on grounds only of religion, race, caste, creed, sex, descent, place of birth, residence or any of them.
Article 17 : Abolition of Untouchability :
This article declares that ‘untouchability’ is abolished and its practice in any form is forbidden. Any person who practices untouchability is guilty of an offence and is punishable under the Protection of Civil Rights Act 1955. [Also known as Untouchability (Offences) Act, 1955]. See box below.
. . . For he dared to ride a horse
(Times of India, Bhopal Feb. 19, 1988)
A Harijan bridgroom was beaten up and his marriage procession attacked by caste Hindus at Korotha village in Shivpuri district, all because he dared to ride a horse on his marriage day. A Harijan riding a horse even on his marriage day is considered as an affront by the caste Hindus. The Harijan bridegroom, Mr. Ashok Jatav, was rudely overthrown from the horse and beaten up. The marriage party was stoned, and the lights in the procession were broken. Five persons were injured in the melee. The police arrived belatedly on the scene and arrested eight persons in this connection.
The matter was rasied in the Vidhan Sabha through a calling attention motion. Mr. Sunderlal Patwan (BJP) said it was shocking that even 40 years after Independence, a Harijan bridegroom riding a horse on his marriage day was resented by caste Hindus. He accused the police of merely performing a formality as the arrested persons were immediately released on bail. The police should have taken prevention action in the form of providing protection to the Harijan bridegroom, he said.
Source : Legal News and Views. Vol. II. No.4 (April 1988), p. 17
Article 18 : Prohibition on the State from conferring titles, except academic and military titles.
Here it must be noted that the Constitution prohibits conferment of titles (not awards, e.g. the Bharat Ratna, Padma Shri, Padma Bhushan etc.). It also prohibits Indian citizens from accepting titles from foreign states. e.g. Sir, Lord etc. During the Janta regime from 1977 to August 1979, no civilian titles were conferred -- a policy consistent with the spirit of Article 18. However, the conferment of civilian titles was revived in 1980, and continues to date. In August 1988, formed Prime Minister Morarji Desi was conferred by Pakistan, its highest civilian title, Nishane -i-Pakistan.
So, everyone is equal in the eyes of the law. That is the theory. However, in practice, we often see that the law tilts in favour of those who are in power. Our role then should be to be aware of and exposed these things whenever they happen. For example, backward classes (BC) are entitled to reservation of seats. But often individuals who are not BC, pose as BC in order to get the special privileges. This should be exposed along with those authorities who issue fake certificates of income and caste, in return for a remuneration.
The right to freedom guaranteed under Article 19 includes the following rights :
- freedom of speech and expression;
- freedom of assembly without arims;
- freedom to form associations/unions;
- freedom to move freely throughtout India;
- freedom to reside and settle in any part of Inida; and
- freedom to practice any profession or to carry on any occuption.
These liberties are not absolute and may be limited by the State, e.g. my right to move anywhere does not enable me to enter another’s private property. They are all subject to reasonable restrictions, in the interest of decency, public order, security of the state, sovereignty and integrity of India, contempt of court, friendly relations with foreign states. Freedom of the press falls within freedom of speech and expression and is available to the same extent. Freedom of assembly, similarly includes right to assemble peacefully without arms, right to hold meetings, and right to take out processions, so long as they are peaceful, no problem.
Can freedom guaranteed under Article 19 be suspended?
Article 358 provides that during proclamation of Emergency, any or all the above rights can be suspended, except Article 21. These rights are also automatically dissolved on the imposition of curfew, or the imposition of Section 144 of the Criminal Procedure Code.
A striking example of the manner in which the Government curded the freedom of the press recently was the raids on the Indian Express offices. Although ostensibly meant as an investigation into the financial lapses on the part of the IE Management, the raids were meant primarily as punitive, for exposing the weaknesses in Rajiv Gandhi’s governement.
Article 20. Protection in Respect of Conviction for Offences
According to this :
- You can be convicted only if you have violated a law which was in force at the time that the act was committed;
- The penalty you receive for your crime must be proportionate to the seriousnessof your crime;
- You cannot be prosecuted and punished more than once for the same offence; and
- You cannot be conpelled to be a witness against yourself, or in other words, you cannot be forced to confess guilt.
This article is intended to protect all persons accused of an offence against being convicted without lawful reason. There was an instance where in one village, the local police used to scare the wits out of villagers, by confronting then with fake warrants, and threatening to arrest them, if they did not pay up. The villagers were illiterate and did not know that the warrants were fake, and would pay up. This went on for some time, till a social activist enlightened them of the fact. Except in the case of a cognizable offence, no policeman can arrest you without a warrant from the court, signed by the magistrate, authorising the particular police official to carry out the arrest.
Article 21. Protection of Life and Personal Liberty
No person shall be deprived of his life or personal liberty, except according to the procedure established by law. This is the fundamental right to live in dignity and freedom. Recently it has been expanded to mean adequate shelter and housing, in view of the subhuman living conditions of millions in this country. See box below for an explanation of this.
Closely related with this fundamental right is the right to private defense. If you are accosted by a thief or murderer who intends to kill you or steal your property, you are entitled to protect yourself even at the cost of injuring or killing your assailant. However if it is a police official who has a court order to arrest you, then in that case, this right is not vaild, obviously.
Housing - A Basic Problem
In the wake of the International Year of Shelter for the Homeless, (1987), a lot of needed attention was focussed on a hitherto neglected area. Two movements started as a result of it, in India. The Government responded with a Draft National Housing Policy (DNHP) and as a feedback to it, the National Campaign for Housing Rights evolved (NCHR), comprising of activist groups and organisations throughout India, which are actively campaigning for a Bill for Housing Rights.
Noted advocate Anand Grover, while outlining the background to the two proposals, say that the problem of housing is growing daily, and it is doubtful as to what extent the proposals will be able to deal with it.
The type of development policies followed by the State over the post-independence era, he says, resulted in larger and larger number of people in the rural areas being displaced from their homes, unable to cke out an existence. The devastating effects of it are being felt acutely all over the country. Large scale development projects like dams, by submerging forests or opening up mines has rendered the poor, who could cke out a living from land,or forest, not only without the means of a livelihood, but also without homes, points our Mr. Grover. Housing in recent times has become a top priority concern for social activists.
As a result of the situation,the rural people are pressurised into migrating to urban metropolises to earn two meals a day. The annual housing need in Bombay itself which was 45,000 units per year in the 1971-81 decade is likely to go up to 80,000 units per year by 2000 A.D. This excludes existing slums and dilapidated buildings which need to be replaced.
The result of this gap between the housing supply and demand is that many are forced to live in unauthorised shelters -- the slums. And despite the provisions of the Slums Act, most of these unauthorisied shelters lack the basic amenities like roads, electricity, water, sanitation, sewage etc.
During A.R. Antulay’s Chief Ministership, he openly restored to the demolition of hutments and deportation of slum and pavement dwellers. However, following the famous SC judgement on the PIL writ petition by Olga Tellis,the policy of the State has been to resort to low profile demolitions, without attracting the public eye.
A major criticism levelled against the DNHP is that the major thrust of the DNHP seems to be geared towards increasing private building activity, supporting it by institutional finance. It claims to provide `affordable shelter’ to the homeless, but a glance through shows that it does not do anything for the homeless who cannot afford to buy this affordable shelter. In other words, housing will be available to only those people who can afford to take loans.
Thus there is a growing realisation among activitists groups and the homeless that the law as it stands today does not help them and what is needed is a law which provides fro a basic right to housing for all.
The NCHR has prepared a Draft Approach Paper, towards the same, which was presented to the 1st National Counsltation held in Bombay at the beginning of May 1987.
The DAP recognises that the conditions relating to housing are fast deteriorating, and that existing laws are inadequate to deal with them.
- It proposes that as housing is fundamental, a constitutional amendment should be introduced to include a fundamental right to a place to live in security and dignity.
- It recognizes that people like victims of riots, natural disasters, industialisation and urbanisation, and certain classes of people -contact labour, migrant, labour, etc. should be included in the category of `homeless’, entitled to adequate housing.
- It also proposes that on declaration of inadequate housing, made on a mandatory basis, the residents of inadequately housed area would be entitled to adequate housing, either through improvement or rehabilitation.
Source : Adapted from "Housing a Basic Right", legal News & Views Vol. 1, No. 8, (Aug. 1987), ISI, New Delhi, pp. 5-8.
Article 22. protection Against Arrest and Detention in Certain Cases
It deals with your rights when arrested :
- When you are arrested you have the right to know on what grounds you are being arrested.
- Secondly you have the fundamental right to consult a lawyer of your choice (or demand for one, in order to be defend).
- You have the right to demand to be taken to a (nearest) magistrate within 24 hours of arrest. Nobody can be detained in custody beyond 24 hours, without the authority of the magistrate > As soon as you are arrested in the police station register. Insist on the time, because if your arrest is prolonged, the recorded time will help to prove your complaint.
In exceptional cases, the State has the authority to detain a person without a trial upto a maximum period of two months, only if the State suspects an individual and wants to prevent the person from committing an illegal act, which is likely to be injurious to the security of the State or the interests of the public.
But even here, the individual has the right to make a petition to the Court protesting against the order of detention, and if the Court is not satisfied about the relevance of the grounds of detention, it can intervene to set things rights. It has the power to intervene, if
- the authority who issued the detention has no jurisdiction;
- the detention is without any legal justification;
- the law under which detention is made, violates any of the fundamental rights.
Despite these clear injunctions, however, during the period of Emergency in 1975-77, so many innocent people were indiscriminately arrested and kept in prisons for months (see box below)
1. What is the nature of preventive detention ?
Preventive detention is the arrest of a person prior to committing an illegal act and his detention without trial. The object of preventive detention is to prevent the individual from committing an illegal act. The suspicion that a person will act in a manner prejudicial to public order, or the security of the State, or public interest is enough to justify his detention. It is not necessary for the State to establish actual breach of public order etc.
2. What is the rights of a detenu to receive the grounds of detention ?
When a person is detained the authority issuing the order, ordinarily within 5 days and in exceptional circumstances, within 10days of the date of detention, must inform him of the grounds on which the order has been issued, and must afford him the earliest possible opportunity of making a representation against the order, to the appropriate Government. If the grounds of detention are communicated to the detenue after 5 days from the date of detention, then the reasons for the delay must be given to him to him in writing (Sec. 8).
For example, in the case of a Bombay-based Sikkimese lawyer Hem Lall Bhandari, the Supreme Court reaffirmed the principle that the statutory constitutional provisions relating to preventive detention must be strictly complied with. Justice Khalid for himself and Justice Chinnappa Reddy observed.
"It is not permissible in matters relating to the personal liberal or a generous view of the lapses on the part of the officers. In matters where the liberty of the citizen is involved, it is necessary for the officers to act with utmost expedition and in strict compliance with the mandatory provisions of the law. Expeditious action is insisted upon as a safeguard against the manipulation (by officers)". AIR 1987 SC 765.
The Sikkim Government which had detained Bhandari under the National Security Act, 1980 (NSA) in Bombay and Delhi in September 1986, contended before the Supreme Court that since Bhandari was released on bail, the police officers’ delay in serving the grounds of detention should be condoned. Rejecting this "specious plea", Justice Khalid observed that if this contention were carried to its logical conclusion, it would clothe the authorities with powers to delay communication of the grounds of detention ndefinitely. He held that to accept that contention would be to destroy the effect of the mandate of Sec. 8 of the NSA. The section has to be interpreted literally and no relaxation was possible.
3. What makes a preventive detention order invalid or illegal ?
The following are some of the reason as enunciated by the Supreme Court that can make the order of detention invalid :
- Law providing for preventive detention and the action taken under it violative of Articles 19 and 22 of the constitution;
- Consideration of extraneous material by the detaining authority without communicating the same to detenu;
- Detention of petitioner for a second time on the same ground earlier detention was made;
- Detaining a person for forming an association for ventilation of grievance in a lawful manner and making protest in a peaceful manner.
- The intention of the detaining authority is malafide.
4. What are the constitutional remedies available to a detenue in case of detention under the Act?
For the protection of fundamental rights, the detenue can move the High Court under Articles 226 or Supreme Court under, 32, of the Constitution, by means of petition for issuing a writ of Habeas Corpus. He can also challenge any of the provisions of the Act, on the ground that such a provision is in violation of his fundamental rights, viz. Articles 21 & 22.
Source : Your Queries. Legal News & Views Vol. II, No. 4, (April 1988), ISI, New Delhi, p 31.
VI. Articles 23, 24. Rights against Exploitation :
These articles specifically prohibit :
- Any form of begar and forced labour (like bonded labour) (23) and
- Children below 14 years working in factories, mines or any other hazardous employment. (24)
It seeks to protect workers and particularly children from being exploited. Article 23 also includes those workers who are being paid less than the statutory minimum wage, as per the Minimum Wages Act, 1948, which seeks to secure the welfare of workmen in a comptitive market by fixing a minimum wage limit. In a land-mark judgement, (Peoples’ Union for Democratic Rights VS Union of India, AIR 1982 SC 1473 -- Asiad workers’ case) the Supreme Court held that a person who provides service to another for less than the minimum wage renders forced service, i.e. begar within the meaning of Article 23.
But how many workers in India are aware of this and stand up for their rights? Even if they do, they have to choose between fighting (which means prolonged litigation) and going hungry -- a tough choice to make.
In an excellent programme on T.V., ‘Adhikar’, the plight of women who have been lured from their villages to work in a factory in a city, where they are kept in sub-human conditions, overworked and undernourished, and paid far less than they ought to have been, was depicted. There was also a pregnant woman in the group who was not given any relief, much less maternity benefits.
Luring young girls into the flesh trade is also a violation of Article 23 with severe penalties awaiting individuals involved in it. It is also an offence under the Suppression of Immoral Traffic in Women and Girl’s Act, 1986.
VI. Articles 25-28. Freedom of Religion
These articles deal with -
- Freedom to profess, practice and propagate any religion of one’s choice;
- To manage religious affairs, through establishing and maintaining institutions for religious and charitable purpose, owing and acquiring and administering movable and immovable property.
VII. Articles 29, 30. Cultural and Educational Rights
This has mainly to do with the rights of minority sections in regard to conserving their language, script and culture, and establishing and administering educational institutions of their choice. They are also equally eligible to receive financial aid from the State, and can choose the medium of educational instruction. Minority institutions are eligible for affiliation and they have the right to form their own governing body to manage their affairs, within the limitations of discipline, health, sanitation and morality. The State has the authority to regualte and monitor the functioning of these institutions. So if a minority institution is not being administered properly, the State can impose restrictions to restore effective administration.
However, in actual practice, Government departments themselves are so corrupt and inefficient that they have neither the time nor the inclination to supervise minority institutions.
IX. Article 32. Rights to Constitutional Remedies
The right to enforce all the above rights is in itself a fundamental right. It has been three main aspects :
- Every citizen has the right to directly move the High Court or the Supreme Court for the enforcement of a fundamental right;
- The Supreme Court is vested with the power to issue directions or order, or what are known as Writs 1 in the enforcement of these rights; and
- Parliament has the right to empower any other court to exercise the function of granting Constitutional remedies.
Writs to enforce Fundamental Rights
- Habeas Corpus : A Latin term, Habeas means ‘have’ and Corpus means ‘body’. It therefore means "to have the body". The Writ of Habeas Corpus is the most important safeguard against the violation of personal liberty of a person by the executive, i.e. the police and other law enforcing authority. It is available in cases of deprivation of personal liberty or illegal arrest and detention. When a court (that is, High Court or the Supreme Court) issues a Writ of Habeas Corpus, the Writ requires the arresting or detaining authority to forth with produce before the court the person who is arrested and detained without the authority of law or kept in illegal confinement in violation of law. If the court, after hearing the parties is satisfied that such detention is illegal or without the authority of law, it can order the immediate release of the person. Any close relative of the person illegally detained can move the Court for a Writ of Habeas Corpus. Besides, in certain cases, public interest Writ Petitions 1 can be filed if the detenu is one on whose behalf there is no close relative to move the court.
- Writ of Mandamus : It literally means: "We command". It is a command or order issued by the High Court or the Supreme Court to any person, corporation, governmental authority or any other person exercising executive power including inferior courts and tribunals, compelling them to do something specfic pertaining to thier office and duty, which they have failed to do or refused to perform according to the law, Mandamus is generally issued to compel the authorities to act positively and it is the most effective remedy available to an aggrieved person against the government and its agencies.
- Writ of Prohibition : It literally means ‘to stop’. It is issued by the High Court and the Supreme Court against an inferior court or executive authority to prevent such court or authority from exercising jurisdication with which it is not legally vested. Once a Writ of Prohibition is issued against an authority or inferior court, such authority or court must forthwith stop the exercise of its powers and jurisdiction.
- Writ of Quo Warranto : It means: "show your authority". This Writ is issued against a persons to show to the Court by what authority of law he/she has occupied the public office. If any person illegally claims to hold a public office, the court issues a Writ of Quo Warranto against that person to prevent illegal assumption or usurpation or use of public office without the authority of law.
- Writ of Certiorari : (to be more fully informed). The Writ of Certiorari is issued by the High Court and the Supreme Court against any interior court or tribunal or quasi-judicial authority to either quash the proceedings pending in any such court or tribunal and to command them to transfer the entire proceedings or case records to the court issuing the Writ of Certiorari. The Certiorari enables the Superior Court to inform itself fully of the nature of proceedings, the procedure adopted and judgement passed by the inderior court. Certiorari is issued to nullify the order or judgement of the inferior court/tribunal/quasi-judicial authority.
Directive Principles of State Policy
They form part IV of the Constitution and specify the underlying principles in the governance of the country. The State is supposed to apply these principles in making laws. In other words, they indicate the policy which the Government should follow, although unlike the fundamental rights, they cannot be enforced through legal action in the courts.
Articles 38-51 come under this. The main difference between Directive Principles and Fundamental Rights is that while the latter constitute limitations upon State action, the former, i.e. the directive principles are in the nature of instructions to the Government of the way to do certain things and to achieve certain ends by their actions. The two together constitute the "conscience’ of our Constitution. Some directivce principles -
Article 38. State to secure a social order for the promotion of the welfare of the people :
- The State shall strive to promote the welfare of the people by securing a social order in which justice, social, economic and political shall inform all the institutions of national life;
- The State shall strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, and opportunities, among individuals and groups of people.
Article 39. Certain principles of policy to be followed by the State :
- that the citizens, men and women, equally have the right to an adequate means of livelihood;
- that the ownership and control of material resources of the community are so distributed as best to subserve the common good;
- that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;
- that there is equal pay for equal work for both men and women;
- 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;
- that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and moral and meterial abandonment.
Article 39-A Equal justice and free legal aid :
The State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall in particular provide free legal aid, by suitable legislations or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. See box below.
Constitutional Provisions for Legal Aid
1. Have the poor a fundamental right to free legal aid ?
Free legal service to the poor is an essential aspect of justice and it is implicit in the fundamental right to life and liberty. This can be clearly seen in the Supreme Court judgement in Hussainara Khatoon vs Home Secretary [(1908)]. The judgement said, "the right to free legal service to the poor and needy is an essential ingredient or reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the fundamental rights to life and liberty guaranteed under Article 21 of the Constitution."
Free legal aid, according to this judgement, is a right of every accused person who is unable to engage a lawyer and secure legal service because of poverty and ignorance. Under such circumstances the Government has an accused person, provided of course, that the accused does not object to such a provision.
The judgement stressed that a procedure, which does not make free legal services available to a poor accused person, cannot be regarded as ‘reasonable, fair and just’. For without free legal aid, a person suffering from economic or other disabilities would be deprived of the opportunity of securing justice (1980 ISCC 103).
2. What is the provision in the Code of Criminal Procedure, 1973 for free legal aid to the accused ?
Section 304 of Cr. P.C. provides that in a trial before the Court of Session, if the accused is not represented by a pleader, and if the Court is of the opinion that the accused has no sufficient means to engaage a pleader, the court shall assign a pleader for his defence at the expense of the Government.
3. Is an indigent (poor) person entitled to file a civil suit without paying court fees ?
Order XXXIII of the Code of Civil Procedure allows an indigent person, who does not have sufficient means to pay Court fees, to institute a suit in forma pauperis, without paying court fees.
4. What is the procedure to be followed to file a suit in forma pauperis ?
- A poor person (pauper) can sue in forma pauperis is only if he has obtained permission of the Court to do so. He has, therefore, to apply for permission to sue as a pauper.
- Every application for permission to sue as a pauper should contain the particulars required with planits in suits. A schedule of movable or immovable property belonging to the applicant with its estimated value should be annexed to the application. It must be signed and verified in the perscribed manner.
- The application should be presented to the Court by the applicant in person. If he is exempted from appearing in person, it may be presented by an authorised agent who can answer all questions relating to the application.
- The Court may examine the applicant or his agent regarding the merits of the claim and the property of the applicant.
- The Court may reject the application, if the applicant has sufficient means to pay the court fees, or if the application is not framed or presented properly, or if he has dishonestly disposed of his property two months before the applicant.
- The Court may conduct an enquiry after due notice to the opposite party, to verify the claims of the applicant, Evidence from both parties and their witnesses may be taken to prove or disprove the claim.
- When the application is granted, it shall be unmbered and registered and shall be considered to be plaint in the suit, and the suit shall proceed in the ordinary manner, except that no court fees need to be paid.
- If the pauper succeeds in the suit, he is bound to pay the court fee depending upon the estimated value of the subject matter of the suit.
Source ; P.D. Mathew. Legal Aid to the Poor. (ISI Booklet) No.10, New Delhi 1955. pp. 2-5.
Article 41 : Right to work, to education and to public assistance in certain cases The State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to education, and public assistance, in cases of unemployment, old age, sickness, and disablement etc.
Article 42 : Provision for just and humane conditions of work and maternity relief.
Article 43-A : Participation of workers in managment of industries.
Article 44 : Uniform Civil Code for the citizens.
Article 45 : Provision for free and compulsory education for children :
The State shall endeavour to provide within a period of 10 years from the commencement of this Constitution for free and compulsory education for all children unit they complete the age of 14 years. (This should have been achieved by 1960).
Article 46 : Promotion of education and economic interests of Scheduled Caste and Scheduled Tribe and other weaker sections :
The State shall promote with special case the educational and economic interests of the weaker sections of the people and in particular shall protect them from social injustice and all forms of exploitation
Article 47 : Duty of the State to raise the level of nutrition and the standard of living and improve public health :
The State shall regard the raising of the level of nutrition and standard of living of its people and the improvement of public health, as among its primary duties, and in particular endeavour to bring about prohibition of the consumption of intoxicating drinks and drugs which are injurious to health, except for medicinal purposes.
Article 48-A : Protection and improvement of environment and safeguarding of forests and wild life.
The inclusion of Directive Principles in the Constitution invited the criticisms of many people. However, the value of the Directive Principles is best brought out in the words of Chief Justice Ray :
"The Directive Principles are also fundamental. They can be effective if they are to prevail over the fundamental rights of a few in order to subserve the common good and not to allow the economic system to result to the common detriment".
The Legal Machinery
In India, we follow what is called the adversary system of trial. In the adversary system, the theory is that truth will come out by a presentation of their cases by the various adversaries, or contesting parties. The judge does not take an active part in the trial and most of the questioning is done by the counsel for both the parties (i.e. the lawyers).
Court structure in General
Bascially, there are two branches of Law : Civil and Criminal. In a civil proceeding, the aim is to recover property or money, and to order compensation or grant relief; while in a criminal proceeding, the aim is to punish the offender and the proceeding is always between the State and the accused.
The Code of Civil Procedure and the Code of Criminal Procedure elabolrate on the details of the manner or procedure to be followed in getting redress. Technically speaking, civil and criminal jurisdication are different from each other, and there are really speaking separate Courts to deal with the two. Howeverm, in many cases, civil and criminal jurisdication is combined, and they are known under a name which combines both the capacities (and are often vested in the same person) such as :
- Court of District and Sessions Judge (district level)
- Court of Civil and Additional Sessions Judge (taluka level)
- Court of Munsif and Judicial Magistrate (local)
At the state level, we have the High Court and right on top is the Supreme Court. Every court has its limits of jurisdication (except the Supreme Court) which may be either pecuniary or to do with the subject. For example, lower courts cannot try a case exceeding a certain monetary value. Again, some suits can be filed only in specified courts, e.g. public trusts can be taken up by the District Judge only.
The Court of Sessions is the highest criminal court of orginal jurisdiction. It deals with all types of criminal cases, and is usually located at the district level, although in some big cities, the city as a unit itself is declared as a sessions division, e.g. Bombay, Pune, Ahmedabad etc. This court can try any offence and impose any sentence authorised by law, for a particlar offence, but the death sentence passed by it, must be confirmed by the High Court.
Similarly, the District (Civil) Court, within its area jurisdication has no limits, either pecuniary or subjectwise. However, only the High Court and Supreme Court can issue writs; the former under Article 226 and the latter under Article 32 of the Constitution. This is the general structure of the system of courts. Now in addition, there are some special courts, which deal with specific subjects, e.g. family courts, juvenile courts, labour courts, special tribunals concerning agricultural land, administrative tribunals, Income-tax tribunals, Co-operative courts, etc.
Family Courts came into existence after a Central Act, in 1984. The idea underlying the setting up of family courts was that conflicts and disputes between members of a family should be handled in a tactful way as it is a delicate matter, affecting the relationships of the people involved. It was seen that family disputes when taken to the ordinary court, only suceeded in increasing the tensions in their personal relationships.
So, the idea evolved out of a need to take a different approach in disputes concerning the family. The family court is usually meant to be held in an informal atmosphere and can be held at any mutually agreeable place. These courts deal with litigation concerning marriage, divorce, maintenance, guardianship, property settlements, and any other proceeding concerning a family.
The approach/role of the lawyers/counsellors in the family court is to assist and persuade the parties in arriving at a settlement.
Lok Adalats (or ‘Mobile Courts’) as it is also known are started with the aim of taking justice out of the courts of the people. In other words, it emphasises out-of court settlement, mutual consent and conciliation, and expense-free and expeditious justice. It goes a step ahead of manmade laws and tries to evoke the eternal law of love, through which, reason, and fair compromise are sought to be brought about, without the clients barbouring ill feelings towards each other.
The approach of the Lok Adalat is a preventive one rather than a curative one - in the sense that it deals with cases through timely counselling even before they are filed in courts.
As it stands, the inordinate delays in courts have resulted in a huge backlog of cases, which are subjected to long and tortuous judicial procedure and systems. According to Mr. Justice Desai, there are approximately 15 lakh cases pending in the High Courts and 1,50,000 in the Supreme Court. Assuming that no fresh case is filed hereafter, the courts would still clear this backlog only in 1977.
Abraham Lincoln, while advocating out-of-court settelement, had once said. "Discourage litigation, persuade your neighbour to compromise, whenever you can, and point out how no winner is a real loser in expenses and time."
The difference between a court and Lok Adalat (at least till recently) was that the former was a statutory body of the state, while the latter was a purely voluntary effort, where a litigant does not have to spend on the proceedings. It was non statutory and did not have the power to ‘summon’ anybody, though with the New Bill things have changed a bit. 1
Voluntary organisations, lawyers, social workers and law students play important roles in the functioning of lok adalats.
Lok Adalats were started with the dual aim of :
- Relieving courts of thier heavy workload; and
- development and alternative dispute settlement mechanism.
Way back in 1978, the first Lok Adalat was held in Kalyan, near Bombay, as an experiment. Later, the same year, another such court was held nearby Bhiwand, Maharashtra, it was tried at Gopalpura in Rajasthan. With the assistance of a lawyer and two social workers, the legal advice board registered 28 cases. Some 500 people collected there out by curiously to witness the proceeding presided over by Mr. Bhagwati himself and attended also by then Chief Justice of Rajasthan. Of the 28 cases, 26 were settled that day.
However, Mr.Bhagwati’s commmendable beginning did not make much headway until 1981, when Mr. Justice M.P. Thakkar (then Chief Justice of Gujarat High Court) picked up the thread and held these Adalats every fortnight, in different parts of the state. They dealt mainly with cases pending in courts. Within a short time, this became a movement in Gujarat, and gradually picked up in other states as well. 1 Lok Adalats became increasingly popular (as can be seen in box below). In particular, they made a tremendous impact in solving a large number of motor accident compensation cases. But in some states, they degenerated into a mere ‘tamasha’. In one case, the high court sent instructions asking magistrates, and sub-judges to keep cases that were almost complete or in which a compromise had already been reached, ready for the Lok Adalat. At this, one district judge remarked: ‘Paki Pakaayi Khaan Chahtey Hain .’ (They want cooked food)
The district authorities in this state, got hundreds of frivolous complainsts registered by the police and these were disposed of by the Lok Adalat, which announced at the end of the day that it had settled a few hundred cases! Similarly, in another state, a few hundred truck drivers were challaned the day before the Lok Adalat was due to sit. The drives were produced, a ‘compromise’ was struck and the police agreed to release them if they paid half the fine originally sought. There is too mcuh of padding of case lists and too pomp and show in conducting the Lok Adalats. Recalls Rajinder Sachar, a retired Chief Justice of the Delhi High Court, ‘When I held a Lok Adalat as Chief Justice, I was told that a list of about 350 cases would be put before me. When I made enquiries, I found that in about a hundred cases, the parties had already agreed to a compromise. I ordered those cases to be taken off.
Again unfortunately more Lok Adalats are being organised in cities and disticts than in the interior parts of the country, where the real problem lies. Land disputes abound in villages and legal aid there can go a long way in generating social action and change at the grassroot level.
Recently Lok Adalats were a subject of controversy, after the passing of the Legal Services Authorities Bill in Parliament, to legalise Lok Adalats. On the one hand, there were those who felt that granting a statutory status and thereby institutionising Lok Adalats will serve to make them more permanent, accountable, thereby enhancing their functioning, while on the other, the opponents to the Bill felt that the more you make them legalistic the more they will take the form of law courts and thus lose their essence. (Justice Desai).
All said and done however, there is no question that Lok Adalats have contributed and are contributing much needed legal aid and assistance in different parts of the country and are an excellent medium for obtaining legal assistance, for people who have no other resources to fall back on, such as influence or money power.
Lok Adalat Restores Faith in Judiciary
The Lok Adalat system has been creating history in different parts of Andhra Pradesh :
- The Lok Adalat in Nalgonda district constituted in 1986, with four convenors and twenty councillor has helped reapproachment between the parties by guidance and persuasion in civil, criminal, revenue and matrimonial disputes. The Lok Adalat disposed 720 criminal cases and give quick relief to the parties concerned.
- It also helped settle cases under Motor Vehicle Act, arranging for payments of nearly Rs. 44 lakh to claimants from insurance companies and State Road Transport Corporation.
- Within a period of one and a half months about 4,500 cases of revenue were settled in Lok Adalat meerings held at Miryalguda, Nakrekla, Suryapet and Nalgonda. Large gatherings in these meetings resulted in the settlement of revenue cases.
- The Lok Adalat in Suryapet, with the active cooperation of the Mandal Revenue Officer, settled a burial ground dispute under section 145 of Cr. P.C. between two sections of scheduled caste people.
- The Lok Adalat also created history at Suryapet by settling all civil appeals pending in the sub-court of Suryapet, in which litigation was started more than 15 years ago, affecting 50 families of weaker sections.
Source : Legal Aid Legal New & Views. Vol. 1, No.5, (May 1987) ISI, New Delhi, p.15.