Politics News

Sub: Politics
Topic: Constitution
Weightage:
Category: Prelims & Mains

Created: 20 Jun, 2020
Updated: 27 Jul, 2020

Rajya Sabha

  • The Fourth Schedule of the Constitution deals with the allocation of seats in the Rajya Sabha to the states and union territories
  • Rajya Sabha is a permanent House and can not be dissolved

Election

  • The representatives of states in the Rajya Sabha, are elected by the elected members of state legislative assemblies, based on proportional representation with single transferable vote.
  • The representatives of union territory in the Rajya Sabha are indirectly elected by members of an electoral college specially constituted for the purpose.
  • The member needs to be at least 30 years of age
  • Representation of the People Act (1951) provides for term of office of a member of the Rajya Sabha to be six years. Elections are held every two years with one third members retiring.
  • Candidates fielded by political parties have to be proposed by at least 10 members of the Assembly or 10% of the party’s strength in the House, whichever is less. For independents, there should be 10 proposers, all of whom should be members of the Assembly.
  • Polling is held only if the number of candidates exceeds the number of vacancies. Polling is done by the system of "open ballot", where members of state legislative assemblies show their marked ballot to the party agents. There is no option of NOTA
  • In addition to provisions in Constitution, Representation of the People Act (1951) provides for
    • candidate contesting an election to the Rajya Sabha from a particular state to be an elector in that particular state
    • candidate to be a member of a scheduled caste or scheduled tribe in any state or union territory, if he wants to contest a seat reserved for them.

Disqualification

  • President has the final authority over disqualification of member.
  • If a disqualified person is elected to the Parliament, the Constitution lays down no procedure to declare the election void. This matter is dealt by the Representation of the People Act (1951), which enables the high court to declare an election void if a disqualified candidate is elected. The aggrieved party can appeal to the Supreme Court against the order of the high court in this regard.
  • He should not hold any office of profit in state (except that of a minister or any other office exempted by Parliament).
  • In addition to provisions in Constitution, Representation of the People Act (1951) provides for
    • He must not have been found guilty of certain election offences or corrupt practices in the elections.
    • He must not have been convicted for any offence resulting in imprisonment for two or more years
    • He must not be a director or managing agent nor hold an office of profit in a corporation in which the government has at least 25 per cent share
    • He must not have been dismissed from government service for corruption or disloyalty to the State.
  • Disqualification on Ground of Defection: The Constitution also lays down that a person shall be disqualified from being a member of Parliament if he is so disqualified on the ground of defection under the provisions of the Tenth Schedule. A member incurs disqualification under the defection law:
    • if he voluntary gives up the membership of the political party on whose ticket he is elected to the House
    • if he votes or abstains from voting in the House contrary to any direction given by his political party
    • if any independently elected member joins any political party
    • if any nominated member joins any political party after the expiry of six months

Others

  • Double Membership: A person cannot be a member of both Houses of Parliament at the same time. Thus, the Representation of People Act (1951) provides for the following:
    • If a person is elected to both the Houses of Parliament, he must intimate within 10 days in which House he desires to serve. In default of such intimation, his seat in the Rajya Sabha becomes vacant. 
    • If a sitting member of one House is also elected to the other House, his seat in the first House becomes vacant.
    • If a person is elected to two seats in a House, he should exercise his option for one. Otherwise, both seats become vacant. 
    • A person cannot be a member of both the Parliament and the state legislature at the same time. If a person is so elected, his seat in Parliament becomes vacant if he does not resign his seat in the state legislature within 14 days
  • Resignation - A member may resign his seat by writing to the Chairman of Rajya Sabha. However, the Chairman/Speaker may not accept the resignation if he is satisfied that it is not voluntary or genuine.
  • Absence - A House can declare the seat of a member vacant if he is absent from all its meetings for a period of sixty days without its permission.
  • A member has to vacate his seat in the Parliament:
    • If his election is declared void by the court
    • If he is expelled by the House
    • If he is elected to the office of President or Vice-President; and
    • If he is appointed to the office of governor of a state.

[In news]

  • June, 20
    • Rajya Sabha elections

Sub: Politics
Topic: Constitution
Weightage:
Category: Prelims & Mains

Created: 21 Jun, 2020
Updated: 07 Aug, 2020

Constitution Schedules in focus

Sixth Schedule - Articles 244 and 275

Provisions as to the Administration of Tribal Areas in Assam, Meghalaya, Tripura and Mizoram. Based on recommendation of Bardoloi sub committee.

Autonomous districts and autonomous regions

  • Autonomous districts and autonomous regions
    • Governor can include, exclude, create boundaries of autonomous districts. He can appoint a commission for examining their administration and accordingly dissolve them too on its recommendation.
    • If there are different Scheduled Tribes in an autonomous district, the Governor can divide the area into autonomous regions.
  • Constitution of District Councils and Regional Councils:
    • There shall be a District Council for each autonomous district consisting of not more than thirty members; of whom not more than four persons shall be nominated by the Governor and the rest shall be elected on the basis of adult suffrage.
    • There shall be a separate Regional Council for each area constituted an autonomous region. Each District Council and each Regional Council shall bear the name respectively of "the District Council of (name of district)" and "the Regional Council of (name of region)"
    • In an autonomous district with Regional Councils, the District Council shall have only such powers with respect to the areas under the authority of the Regional Council as may be delegated to it by the Regional Council, in addition to the powers conferred on it by this Schedule with respect to such areas.
    • The elected members of the District Council shall hold office for a term of five years from the date appointed for the first meeting after the general elections to the Council
      • Can be extended to one year in case of emergency, but not beyond six months after emergency ceases
  • Powers of the District Councils and Regional Councils to make laws:
    • Have rights over land for promoting interests of its inhabitants, except for reserved forests and rights of state government for land occupation for public purposes. They can impose land revenue
    • District Council for an autonomous district can establish and manage primary schools (can prescribe language), dispensaries, markets, transport in the district after approval from Governor.
    • Within their territorial jurisdictions they may constitute village councils or courts for the trial of suits between parties belonging to Scheduled Tribes within such areas. The jurisdiction of high court over these suits and cases is to be specified by the governor.
    • After approval from Governor, can make rules regulating the constitution and enforcement of village councils and courts
    • There shall be a District Fund and a Regional Fund, and Governor to make rules for its management; and CAG to conduct audits of its accounts.
    • The acts of Parliament or the state legislature do not apply to autonomous districts and autonomous regions or apply with specified modifications and exceptions

 

Tenth Schedule - Articles 102(2) and 191(2)

The 52nd Amendment Act of 1985, also called Anti-defection law' provided for the disqualification of the members of Parliament and the state legislatures on the ground of defection from one political party to another.

Disqualification on ground of defection

 A member of a House belonging to any political party becomes disqualified for being a member of the House:

  • Para 2(1)(a) - if he voluntarily gives up his membership of such political party
    • In the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct
    • There are supreme court judgements, where members who publicly expressed opposition to their party, or support for another party were deemed to have resigned
  • if he votes or abstains from voting in such House contrary to any direction issued by his political party, and such act has not been condoned by the party within 15 days of voting.
  • An elected member who has been elected as a candidate set up by any political party, shall be disqualified for being a member of the House if he joins any political party after such election.
  • A nominated member of a House becomes disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat in the House.

Exceptions

  • If a member goes out of his party as a result of a merger of the party with another party. A merger takes place when two-thirds of the members of the party have agreed to such merger.
  • If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office.
  • 91st Amendment Act of 2003, removed the provision, that gave exemption from disqualification in case of split by one-third members.

Process

  • Any question arising for disqualification of member is referred for the decision of the Chairman / Speaker and his decision is final.
    • Any question arising for disqualification of speaker/chairman himself lies with the member elected by House
  • The Presiding Officer can take up a defection case only when he receives a complaint from a member of the House. The law does not specify a time-period for the Presiding Officer to decide on a disqualification plea
  • Before taking the final decision, Presiding Officer must give the member a chance to submit his explanation. Presiding Officer may also refer the matter to the committee of privileges for inquiry.
  • Judicial review: Appeals against final decision of Presiding Officer can be made in the High Court and Supreme Court. A challenge can be made if there is a threat of disqualification before final decision of speaker.
    • Supreme Court, after Kihoto Hollohan v. Zachillhu case (1993), became the final authority over disqualification of member.

[In News]

  • July, 20
    • Support withdrawal and defection in Manipur assembly
    • Disqualification of Sachin Pilot and other MLAs
  • Aug, 20
    • Arunachal Pradesh Chief Minister Pema Khandu seeks debate on the demand for two autonomous councils - Mon Autonomous Region (MAR) and Patkai Autonomous Council (PAC)

Sub: Politics
Topic: Constitution
Weightage:
Category: Prelims & Mains

Created: 22 Jun, 2020
Updated: 22 Jun, 2020

Representation of The People Act

Articles 81 and 170 of the Constitution of India lay down the maximum number of seats in Parliament and in Legislative Assemblies. Article 171 lays down minimum and maximum number of seats in Legislative Council. Actual allocation of seats was left for a law.

So, Representation of the People Act, 1950, was enacted to provide for the allocation of seats. The Act contained provisions relating to elections, seat allocation, and delimitation of constituencies.

 

[In news]

  • Section 94 of the Representation of the People Act, which upholds the privilege of the voter to maintain confidentiality about her choice of vote

Sub: Politics
Topic: Constitution
Weightage:
Category: Prelims & Mains

Created: 25 Jun, 2020
Updated: 03 Jul, 2020

Cabinet Committees In Focus

Cabinet Committees 

  • They are not mentioned in the Constitution. However, the Rules of Business provide for their establishment.
  • They are set up by the Prime Minister according to requirements of situation. They are of two types - standing and ad hoc
  • They usually include only Cabinet Ministers. However, the non-cabinet Ministers are not debarred from their membership
  • In case the Prime Minister is a member of a committee, he invariably presides over it

Cabinet Committee on Economic Affairs

  • Headed by Prime Minister, CCEA directs and coordinates the governmental activities in the economic sphere.
  • Functions
    • Approves MSP pricing based on recommendations from Commission for Agricultural Costs & Prices (CACP) 
    • Reviews progress of activities related to rural development including those concerning small and marginal farmers
    • Deal with industrial licensing cases involving proposals from the Ministries for the establishment of Joint Sector Undertakings
    • To consider issues relating to disinvestment
  • Recent Initiatives
    • CCEA approved the new definition of MSMEs increasing the investment limit to ₹50 crore and turnover to ₹250 crore for medium enterprises. Likewise, for micro enterprises, the investment limit will be ₹1 crore and turnover ₹5 crore; while for small enterprises, the investment limit will be ₹10 crore and the turnover ₹50 crore.

[In News]

  • June, 20
    • CCEA approves additional investment to ONGC for development of Shwe oil and gas project in Myanmar

Sub: Politics
Topic: Constitution
Weightage:
Category: Prelims & Mains

Created: 30 Jun, 2020
Updated: 10 Aug, 2020

High Court And Subordinate Courts

High Court

  • THE CONSTITUTION (Seventh Amendment) Act, 1956 authorised the Parliament to establish a common high court for two or more states, or for two or more states and a union territory
  • A High Court judge can hold office till 62 years of age. Post retirement he can be asked by Chief Justice to serve as an Acting Judge for High Court. As an Acting Judge, he shall have all power and privileges of high court judge, but still wont be deemed as a judge of High Court.
  • President of India:
    • Determines strength of high court
    • Appoints Chief Justice after consultation with Governor and CJI; and appoints judges after consulting CJI and a collegium of two senior judges of Supreme Court.
    • Can accept resignations
    • Transfer judges
    • Can remove judges after approval by special majority from each House.
  • Parliament:
    • Determines salaries, pensions, leaves, allowances, expenses. They are charged on consolidation fund of state, thus they can be discussed on but can not be voted on. However pension of High Court judges is charged on Consolidated Fund of India.
    • Parliament and state legislature determine the jurisdiction and powers of a High Court.
  • Jurisdiction
    • Original Jurisdiction : It means the power of a high court to hear disputes in the first instance, not by way of appeal. High Court does not have original criminal jurisdiction.
    • Writ Jurisdiction : Article 226 of the Constitution empowers a high court to issue writs including habeas corpus, mandamus, certiorari, prohibition and quo-warrento for the enforcement of the fundamental rights or an ordinary legal right.
    • Appellate Jurisdiction : A high court is primarily a court of appeal, to hear appeals from subordinate courts in both civil and criminal matters.
    • Judicial Review : High Courts can examine the constitutionality of legislative enactments and executive orders of both the Central and state governments; and can declare them illegal and unconstitutional, if they are found to be violative of the Constitution.

Advocate General

  • Article 165: Advocate General for the State
    • Governor of each State shall appoint a person who is qualified to be appointed as a Judge of a High Court to be Advocate General for the State. In other words, he should have held a judicial office for ten years or been an advocate of a high court for ten years
    • The Advocate General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine 
  • Duties - Attorney General gives advise to state goverenment, performs duties of a legal character that are assigned to him by the governor, and discharges functions as defined in Constitution or any other law.
  • Rights
    • He has the right of audience in any court in the State.
    • He has the right to speak or to take part in the proceedings of state legislature [Article 177], but without a right to vote.
    • He enjoys all the privileges and immunities that are available to a member of the state legislature.

Subordinate Courts

Part VI of the Constitution from Articles 233 to 237 deal with subordinate courts

  • The organisational structure and jurisdiction of subordinate judiciary is under state discretion.
  • Governor
    • Appointment, posting and promotion of 'district judges' in consultation with the high court.
    • Appointment of persons (other than district judges) to the judicial service of a state, after consultation with the State Public Service Commission and the high court
  • The district judge is the highest judicial authority in the district. He possesses original and appellate jurisdiction in both civil as well as criminal matters. In other words, the district judge is also the sessions judge. When he deals with civil cases, he is known as the district judge and when he hears the criminal cases, he is called as the sessions judge.
  • The sessions judge has the power to impose capital punishment (after confirmation by High Court) and life imprisonment.
  • Below the District and Sessions Court
    • Civil:
      • Court of Subordinate Judge
      • Court of Munsiff : Subordinate to Court of Subordinate Judge, decides civil cases of small pecuniary stake
      • City Civil court: Some metropolitan like Bengaluru, Mumbai, have their own civil courts subordinate to High Court.
    • Criminal:
      • Court of Chief Judicial Magistrate. The chief judicial magistrate decides criminal cases which are punishable with imprisonment for a term up to seven years.
      • Court of Judicial Magistrate : Subordinate to Court of Chief Judicial Magistrate, and tries cases which are punishable with imprisonment for a term up to three years
      • Courts of metropolitan magistrates: May pass sentence upto 3 years

National Legal Services Authority (NALSA)

  • Constituted under the Legal Services Authorities Act, 1987 to monitor and evaluate implementation of legal aid programmes, and to lay down policies and principles for making legal services available under the Act.
  • Legal Services Committee exists in Supreme Court, high courts, districts, and talukas
  • Functions - To provide free and competent legal services to the eligible persons, to organize Lok Adalats, to organize legal awareness camps in the rural areas.

Lok Adalat 

  • Lok Adalat is a statutory body under Legal Services Authorities Act, 1987.
  • Lok Adalat settles pending cases, or which are at pre-litigation stage (not yet brought before a court)
  • Offences which are non-compoundable under any law fall outside the purview of the Lok Adalat.
  • It has same power as civil court while presiding a suit.
  • The decision of Lok Adalat shall be final and binding on all the parties to the dispute and can not be appealed against.

[In News]

  • June, 20
    • NALSA to provide online legal assistance for domestic violence

Sub: Politics
Topic: Constitution
Weightage:
Category: Prelims & Mains

Created: 17 Jul, 2020
Updated: 03 Aug, 2020

State Legislature

Articles 168 to 212 in Part VI of the Constitution deal with the organisation, composition, duration, officers, procedures, privileges, powers and so on of the state legislature.

Article 190  - Vacation of Seats

  • No person shall be a member of both Houses of the Legislature, else state legislature should make provisions for vacation of seat in either House.
  • If a member of the state legislature is disqualified under Article 191
  • A member may resign by writing to Speaker of legislative assembly (Chairman for legislative council). The seat falls vacant when the resignation is accepted, but speaker can deny it after an inquiry he feels the resignation is not genuine or voluntary.
  • If a member of Legislative Assembly is absent from meetings of assembly for a period of sixty days, without permission of the Assembly. The said period of sixty days do not include period when House is prorogued or is adjourned for more than four consecutive days
  • Other Cases: A member has to vacate his seat in the either House of state legislature:
    1. if his election is declared void by the court
    2. if he is expelled by the House
    3. if he is elected to the office of president or office of vice president
    4. if he is appointed to the office of governor of state

Article 191  -  Disqualifications for membership

A person shall be disqualified for being chosen as and for being a member of the legislative assembly or legislative council of a state:

  • if he holds any office of profit under the Union or state government (except that of a minister or any other office exempted by state legislature)
  • if he is of unsound mind and stands so declared by a court
  • if he is an undischarged insolvent
  • if he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance to a foreign state
  • if he is so disqualified under any law made by Parliament

Representation of People Act (1951), provides for additional grounds for disqualification like no imprisonment for two or more years (preventive detention dont apply), holding office of profit, declaration of election expenses, etc.

Sessions of State Legislature

  • Summoning:
    • Article 174 of the constitution empowers the governor to summon, prorogue and dissolve the house. These functions are performed by him on the advice of his council of ministers (Article 163). The cabinet is not bound to state the agenda for the session to the governor
    • In  Nabam Rabia and Banan Felix v. Deputy Speaker (2016), Supreme Court made two points clear
      • The governor has no discretion in the matter of summoning the house if the chief minister enjoys majority in the house and, therefore, is bound to act on the advice of the cabinet.
      • In case the governor has reason to believe that the chief minister has lost his majority, the governor can use his discretion in fixing the date for summoning the assembly where the chief minister has to test his majority.
    • Even if the governor suggests another date, if the government sticks to its own date, the Governor has to sign the summons order.
    • The maximum gap between the two sessions of state legislature cannot be more than six months.
      • The convention is to keep at least 15 days gap (earlier 21 days) between sessions. 15 days is the prior notice period given to members for starred questions for preparation; however speaker can shorten the notice period
  • Adjournment: The power of the adjournment as well as adjournment sine die lies with the presiding officer of the House.
    • Adjournment: Adjournment is a postponement of the sitting or proceedings of the House from one time to another 
    • Adjournment sine die: Adjournment sine die means termination of a sitting of the House without any definite date being fixed for the next sitting.
    • Prorogation: Prorogation means termination of a Session of the House by an order made by the Governor. The Prorogation of the House may take place any time, even while the House is sitting.  However, usually, prorogation follows the adjournment of the sitting of the House sine die. 
    • Quorum: Quorum is the minimum number of members required to be present in the House before it can transact any business.  The quorum to constitute a meeting is ten members or one tenth of the total number of members of the House, whichever is greater. If there is no quorum it become duty of speaker or chairman to adjourn House

Legislative Assembly / Vidhan Sabha

Composition and Election

  • Strength: The maximum and minimum strength is fixed at 500 and 60, with excption of Arunachal Pradesh, Sikkim, Goa, Mizoram and Nagaland
  • Nominated Member: The governor can nominate one member from the Anglo-Indian community, if the community is not adequately represented in the assembly.
  • Reservation: Reservation of seats for scheduled castes and scheduled tribes on the basis of population ratio.
  • Constituency Demarcation: State constituencies are demarcated in such a manner that the ratio between the population of each constituency and the number of seats allotted to it is the same throughout the state. Readjustment is done after every census

Duration of Assembly

  • Its normal term is five years from the date of its first meeting after the general elections. The expiration of the period of five years operates as automatic dissolution of the assembly.
    • However, the governor is authorised to dissolve the assembly at any time (i.e. even before the completion of five years) to pave the way for fresh elections.
  • The term of the assembly can be extended during the period of national emergency by a law of Parliament for one year at a time (for any length of time). However, this extension cannot continue beyond a period of six months after the emergency has ceased to operate

Legislative Council / Vidhan Parishad

Composition and Election

  • Article 169(1) provides for the abolition or creation of legislative councils in states, if legislative assembly passes a resolution to that effect by special majority.
  • Strength: The maximum strength of the council is fixed at one-third of the total strength of the assembly and the minimum strength is fixed at 40. Actual strength is fixed by Parliament.
  • Election process: Elections are held by system of proportional representation by means of a single transferable vote. 5/6 of the total number of members of a legislative council are indirectly elected and 1/6 are nominated by the governor.
    • 1/3rd of the members are elected by representatives of the Local Authorities (like Municipalities, Zilla Parishads, Block Parishads etc)
    • 1/3rd of the members are elected by members of the Legislative Assembly (the same person can’t be a member of both the houses)
    • 1/12th of the members are elected by the Graduates in the state
    • 1/12th of the members are elected by the Teachers in the state
    • Remaining members are nominated by the Governor. Those nominated by the Governor should have special knowledge or practical experience in Literature, science, art, co-operative movement and social service.

Duration of Legislative Council

  • It is a permanent body and is not subject to dissolution.
  • One-third of its members retire on the expiration of every second year. So, a member continues as such for six years. The vacant seats are filled up by fresh elections and nominations (by governor) at the beginning of every third year.
  • The retiring members are also eligible for re-election and re-nomination any number of times.

[In News]

  • June, 20
    • Manipur elections
    • Defection of MLAs in Goa legislative assembly
  • July, 20
    • Defection of MLAs in Rajasthan legislative assembly
    • Governor of Rajasthan seeking 21 day gap between two assembly sessions

Sub: Politics
Topic: Constitution
Weightage:
Category: Prelims & Mains

Created: 01 Aug, 2020
Updated: 06 Aug, 2020

Fundamental Rights

The Constitution of India provides Fundamental Rights under Chapter III (Articles 12 to 35), classified under the six categories: Right to Freedom, Right to Equality, Right against Exploitation, Right to Freedom of Religion, Cultural and Educational rights and Right to constitutional remedies

Right to Equality (Article 14 to 18)

Article 14 -  Equality before law 

A State cannot discriminate against a citizen on the basis of religion, race, caste, sex or place of birth

Article 15 -  Prohibition of discrimination 

  • Article 15(1): State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
    • However these cannot be only ground. (e.g. In military males are preferred because of their physical structure). 
  • Article 15(2): No citizen shall, on grounds of religion, race, caste, sex, place of birth, be subject to any restriction to access public places
  • Article 15(3): Allows State for making any special provision for women and children
  • Article 15(4): Allows State for making any special provision for the advancement backward classes, Scheduled Castes, and Scheduled Tribes

Article 16 - Equality of opportunity in matters of public employment

No citizen will, on the grounds only of religion, race, caste, sex, descent, place of birth, residence be ineligible for, or discriminated against in respect of any employment or office under the state

Article 17 -  Abolition of Untouchability 

Untouchability is abolished and its practice in any form is forbidden, and shall be an offence punishable in accordance with law

Article 18 -  Abolition of titles 

Article 18 provides that no title, not being a military or academic distinction, shall be conferred by the state. It prohibits citizen of India from accepting any title from any foreign state. It also forbids holding any office of profit or trust under the state, and from accepting without the consent of the president any title from foreign state

Right to Freedom (Article 19 to 22)

Article 19 - Freedom of Speech 

Article 19 guarantees six basic freedoms:

  • Article 19(1)
    • Article 19(1) (a) - Right to Freedom of Speech and Expression:  Freedom of expression includes the right to express one’s own as well as another’s views, and by any means. Reasonable censorship can be imposed in the interest of public order.
    • Article 19(1) (b) - Right to Assemble peacefully and without arms: Right to form association does not carry to right to call strike. Confers right to form trade-unions. Parliament by law can restrict the arm forces, Para-military and police from forming association
    • Article 19(1) (c) - Right to form Association or Unions
    • Article 19(1) (a) - Right to move freely throughout the territory of India
    • Article 19(1) (a) - Right to reside and settle in any part of the territory of India
    • Article 19(1) (g) - Right to practice any profession or to carry on any occupation, trade or business: State can prescribe the qualification for occupation, and can monopolies any trade.
  • Article 19(2): State can impose reasonable restrictions on clause (1) in the interests of the sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation or incitement to an offence

Article 20 - Protection Against Conviction of Offences

Article 20 safeguards certain rights in case of conviction for offences

  • Ex post facto law: No person shall be convicted of any offence, except for violation of the law in force at the time
  • Double Jeopardy: No person shall be prosecuted and punished for the same offence more than once.
  • Self-incrimination: No person accused of any offence shall be compelled to be a witness against himself.

Article 21 - Right to Life

Article 21 provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. It was observed in Unni Krishnans case that Article 21 is the heart of Fundamental Rights. In Meneka Gandhi case the Supreme Court held that a law made by state which seeks to deprive a person of his personal liberty must prescribe a procedure for such deprivation which must be invalid if it violates the principle of natural justice.

Article 21 A - Right to Elementary Education

Article 21A of the Indian Constitution was added in 2002 in 86th Amendment. It guarantees the Right to Elementary Education to children between 6 to 14 years to get free education

Article 22 - Protection Against Arrest and Detention

  • Article 22(1): This article provides that no person who is arrested shall be detained in custody without being informed of the grounds for such arrest. The Article also provides that no person can be denied the right to choose his legal practitioner of his choice.
  • Article 22(2): Any person arrested and detained in custody has to be produced before the nearest magistrate within a period of 24 hours
    • This is known as the Writ of Habeas Corpus (literally meaning to "produce the body"). However the writ can not be used for release of the person
  • Article 22(3): The above two clauses (1) and (2) do not extend in case of - enemy aliens, and preventive detention
  • Article 22(4): Preventive detention to not extend above three months unless an Advisory Board (consisting of High Court judges or persons that are eligible to become one) permits for extension before expiration.
  • Article 22(7): Allows Parliament to make law for preventive detention beyond three months without obtaining the opinion of an Advisory Board 

Right against Exploitation (23 to 24)

Right against exploitation prohibits all forms of forced labour as well as traffic of human beings. The violation of this provision is an offence punishable under law. 

Article 23 -  Prohibition of traffic in human beings and forced labour

  • Traffic in human being and beggar and other similar form of forced labour are prohibited.
  • The state can impose compulsory service for public purposes, and in imposing such service the state cannot make any discrimination on grounds only of religion, race, caste, or any of them

Article 24 -  Prohibition of employment of children in factories

  • No child below the age of fourteen year can be employed to work in any factory or mine or engaged in any other hazardous employment.

Right to freedom of Religion (Article 25-28)

Article 25 -  Freedom to practice religion

Article 25 provides freedom of conscience and free profession, practice and propagation of religion subject to public order, morality and health. State can regulate religious activities; and provide for social reform and open Hindu religious institution of public character to all sections of Hindus

Article 26 -  Freedom to manage religious affairs 

This section guarantees following right to all religious group subject to public order, morality and health.

  • Establish and maintain institution for religious and charitable purposes
    • Subramanian Swamy’s petition: The right to management under Article 26 (Freedom to manage religious affairs) can only be claimed after the fact of establishment has been proved.
  • Manage its own affairs in matter of religion;
  • Own and acquire movable and immovable property;
  • Administer such property with accordance of law.

Article 27 -  Freedom as to payment of taxes for promotion of any particular religion 

  • A state cannot compel any citizen to pay any tax for promotion or maintenance of any particular religion or religious institution.

Article 28 -  Freedom from religious worship in certain educational institutions

  • No religious instruction can be provided in any educational institution wholly maintained out of state fund
  • No person attending any educational institution recognised by the State or receiving aid out of State funds, required to take part in any religious instruction

Cultural and Educational Right (Article 29 to 30)

Article 29 -  Protection of interests of minorities

  • Article 29 provides that any section of citizen residing in India or any part of thereof having distinct language, script or culture of its own shall have right to conserve the same.
  • No citizen shall be denied admission in any educational institution maintained by the state or receiving aid out of state funds on grounds only of religion, race, caste, language or any of them.

Article 30 -  Right of minorities for educational institutions

  • All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice
  • State shall not, in granting aid to educational institutions, discriminate against such educational institutions maintained by a minority group on grounds it is under the management of a religious community.

Right to Constitutional Remedies (Article 32-35)

Article 32 -   Remedies for enforcement of rights 

Right to Constitutional Remedies is guaranteed by Article 32. Dr. B.R. Ambedkar pointed Article 32 as "soul of the Constitution" and a "tree of fighting for other rights"

  • Article 32 guarantees a person the right to move directly to the Supreme Court for the enforcement of his fundamental right. It gives an extensive original jurisdiction to Supreme Court in regard to enforcement of Fundamental Rights.
  • The Article gives Supreme Court power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of fundamental rights 
  • It confers on Supreme Court as guarantor and protector of fundamental rights. Being the guarantor, the Supreme Court can not refuse to issue Writs.
      • Writs are the formal written document bearing the name of the court, or other legal authority to do some act, abstain or refrain from doing something
      • Article 139 states that the parliament can confer on Supreme Court to issue writs for any purpose outside the scope of Article 32, i.e. for other Constitutional and legal rights
      • Article 226 gives High Court discretionary powers to issue writs for enforcement of all rights ( including fundamental rights, Constitutional rights and other legal rights). And Article 227 determines that every High Court shall have superintendence over all courts and tribunals in its relative territory.
  • Article 32 can be suspended during emergency by President

Article 33

  • Article 33 empowers the Parliament to restrict or abrogate the application of the fundamental rights in relation to the armed forces, forces charged with the maintenance of public order, persons involved in intelligence and telecommunications

Article 34

  • Restriction on rights conferred while martial law is in force. The article gives indemnity by law in respect to acts done during operations of martial law.
  • Constitution does not provide any definition of martial law, but Article 34 in implicit about imposition of martial law under the extraordinary circumstances like war, invasion, insurrection, rebellion, riot or any violent resistance to law
  • Declaration of martial law does not automatically result in the suspension of the writ of habeas corpus

Article 35

  • Article 35  empowers only parliament, and not state legislature (even if under state list ), to give effect to certain specific fundamental rights to ensure uniformity throughout India. 

[In News]

  • June, 20
    • Article 21, 22 - Tamil Nadu custodial death
    • Article 22 - Preventive detention of J&K leaders
  • July, 20
    • Article 19 - Supreme Court hearing against Prashant Bhushan on contempt of court for his tweets
  • Aug, 20
    • Article 26 - Subramanian Swamy’s petition in the Uttarakhand high court for state’s control of Hindu temples, challenging the validity of Uttarakhand Char Dham Devasthanam Management Act, 2019 
    • Article 19(2): Brinda Karat's petition against Anurag Thakur Parvesh Verma for their alleged hate speeches in connection with the anti-CAA protest at Shaheen Bagh

Sub: Politics
Topic: Constitution
Weightage:
Category: Prelims & Mains

Created: 01 Aug, 2020
Updated: 01 Aug, 2020

Parliament Rules And Procedures

Motions

Motions and resolutions are procedural devices to raise a discussion in the House on a matter of general public interest. Motions can be moved by private members as well as Ministers. Every matter is determined in the House, by means of a question put from the Chair, on a motion made by a member and resolved either in the affirmative or negative. Notice of a motion to discuss is given in writing to Secretary-General.  No period of notice has been prescribed in regard to such motions nor do they require any seconder

It is the Business Advisory Committee which selects the motion(s) for discussion in the House according to the urgency and importance of the subject and allots time for the same. Discussion takes place only with the consent of the Speaker or the Chairman of the House, as per Rule 184 of Lok Sabha. All motions are classified under three categories:

  1. Substantive Motions: A substantive motion is a self-contained independent proposal submitted for the approval of the House and drafted in such a way as to be capable of expressing a decision of the House. All resolutions come under the category of substantive motions but all motions are not resolutions.
  2. Substitute Motions: Motions moved in substitution of the original motion.
  3. Subsidiary Motions: They depend upon or relate to other motions or follow upon some proceedings in the House. They by themselves have no meaning and are not capable of stating the decision of the House without reference to the original motion. Subsidiary Motions are further divided into three classes:
    1. Ancillary Motions:  They are motions which are recognized by the practice of the House as the regular way of proceeding with various kinds of business. 
    2. Superseding Motions: They are motions which, though independent in form, are moved in the course of debate on another question and seek to supersede that question. 
    3. Amendments.: They are subsidiary motions which interpose a new process of question and decision between the main question and its decision.

Types of motions 

  • Adjournment Motion: A motion for an adjournment of the business of the House, for the purpose of discussing a matter of urgent public importance is made with the consent of the Speaker. . Notice of an adjournment motion is required to be given before 10 am on the day on which the motion is proposed. If the adjournment motion is accepted, the House adjourns after voting.
  • Call-Attention Motion: The concept of ‘Calling Attention’ is of Indian origin.  A member may, with the previous permission of the Speaker, call the attention of a Minister to any matter of urgent public importance by moving a motion. TNo member can give more than two such notices in one sitting
  • Censure Motion: Censure motion is moved by the opposition against a specific policy of the government, or against a minister, or against the whole council of ministers. It can be moved in Lok Sabha only. If the censure motion is passed, the Council of ministers is bound to seek the confidence of the House as early as possible.
  • Cut Motions: A motion that seeks reduction in the amount of a demand presented by the government is known as a cut motion. There are three types of Cut Motion:
    1. Disapproval of Policy Cut:
    2. Economy Cut: Asks for a reduction of the amount of the demand by a specific amount
    3. Token Cut: For specific grievances under government’s responsibility, and usually deals with small reduc­tion in the demand.
  • No Confidence Motion: A motion of no confidence can be moved against the Council of Ministers only, and not an individual MP. If the lower house rejects a bill proposed by a member of the Council of Ministers, it is equivalent to a no-confidence motion. Unlike Censure motion, there is no need to specify any reason. A debate takes place only if fifty or more MPs rise in support of it. The council of minister must resign if the motion is passed.
  • Privilege motion: A motion moved by a member if he feels that a Minister has committed a breach of privilege of the House or of any one or more of its members by withholding the facts of a case or by giving a distorted version of facts etc. 

[In News]

  • July, 20
    • Privilege motion: Privilege motion against CM Ashok Gehlot
    • No-confidence motion: No-confidence motion in Manipur assembly