Constitution of India Day 16

We have already read article 14 which talks about ‘equality before law’ and ‘equal protection of law’. Article 15 is a mix of both and elaborates the grounds on which discrimination is prohibited.

Let’s find this out in detail.

Article 15 : Prohibition of discrimination on grounds of religion, race, caste, sex, place of birth.

The current article safeguards our rights to equality through the following points:

1. The State shall not not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. This is related to a state action.

2. No person shall be subject to any disability, liability, restriction or condition with regard to the following on the grounds only of religion, race, caste, sex, place of birth or any of them. This is related to both the State as well as private bodies :

1. Access to shops, public restaurants, hotels and places of public entertainment

2. The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partially out of state funds or dedicated to the use of general public.

3. Nothing in this article shall prevent the state from making any special provision for women and children.

4. Nothing in this article or clause (2) of article 29 ( given below ) shall prevent the state from making any special provision for the advancement of the following: 

1. Any socially and educationally backward classes of citizens (SEBC).

2. Schedule Castes (SC).

3. Schedule Tribes (ST).

5. Nothing in this article or sub clause (g) of clause (1) of article 19 (given below) shall prevent the state from making any special provision for the advancement of all the classes mentioned in clause (4) above. Such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the state, other than minority educational institutions referred to in clause (1) of article 30.

Thus we see that the clause (1) and clause (2) of the article 15 is based on the principle of ‘equality before the law’ while clause (3), (4) & (5) is based on the principle of ‘equal protection of the laws’

Moreover, clause (1) of article is enforceable against the state as it covers the actions of the state which are expected to be non-discriminatory. While, clause (2) is enforceable against ‘the state’ as well as ‘private bodies’ as it involves the rights related to the accessibility of the places and utility of the services dedicated to the general public.

For example, even if a shop is owned by a private body, no person can be denied to its access on the grounds only of religion, race, caste, sex or place or birth.

It is also important to note that the word “only” prohibits discrimination “on the grounds only of religion, race, caste, sex or place or birth and discrimination on other grounds is not prohibited under this article.

You also read that in clause (2) that no person shall be subject to any disability, liability, restriction or condition.

Let’s understand all these four terms through an example for each.

Disability : A certain class of people are completely not allowed to access a place or utilise a service dedicated to the general public.

Liability : Collection of a fee from only a certain class of people for use of a public well.

Restriction : A certain class of people are restricted to collect only a kilogram of rice from a shop.

Condition : A condition is imposed over a certain class of people that they are allowed to a bathing ghat only after all the other classes have taken bath.

Now, let’s understand other clauses mentioned above in article 15.

Clause (2) of article 29 : No citizen shall be denied admission to any educational institution maintained by the state or receiving aid out of the state funds on grounds only of religion, race, caste, language or any of them.

While clause (2) of article 29 prohibits any discrimination in admission to any educational institution maintained by the state or receiving aid out of the state funds on grounds only of religion, race, caste, language or any of them, clause (4) of article 15 gives the state power to make any special provision for the advancement of the people mentioned in the said clause. Here, clause (4) of article 15 supersedes  clause (2) of article 29.

Sub-clause (g) of clause (1) of article 19 : 1. All citizens have the right (g) to practice any profession , or to carry on any occupation, trade or business.

Thus the above mentioned clause gives the right to the private bodies to run educational institutions. This could restrict the state in exercising its control over the admission to private educational institutions.Therefore, clause 5 of article 15 was inserted through 93rd amendment Act, 2005 to allow the state to make any provision in this regard for the advancement of SEBC, SC and ST. Please, read clause 5 of article 15 given above again to find a correlation. 

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PS : The above texts are ‘not the exact texts’ copied from the Constitution of India.They have been modified in simple language for the ease of understanding. Due consideration has been given to ensure that ‘the spirit and the meaning’, as contained in the Constitution, remains the same. Please refer to the Constitution of India for the original texts. Please feel free to point out any discrepancy that comes across you. We shall be happy to modify the same.

Constitution of India Day 15

The Fundamental Rights as we saw are well protected by the Constitution against ‘the State’ as well as ‘private bodies’. Any law in contravention to these rights is void to the extent of its inconsistency with the fundamental rights.

Let’s look at them one by one.

Article 14 : Equality before law.

It states that the state shall not deny to any person ‘equality before the law’ or ‘equal protection of the laws’ within the territory of India.

It is important to note that there are two concepts : a) equality before the law b) equal protection of the laws.

The first concept, ‘equality before the law’ has the British origin. It emphasises on (a) the absence of any special privileges, (b) equal subjection of all persons before the ordinary laws and law courts and (c) Supremacy of law above all (whether rich or poor, official or non official, privileged or underprivileged).

In other words, if a law is violated by two people belonging to different categories (whether rich or poor, official or non official, privileged or underprivileged) no special privileges shall be provided to any of them. They shall be equally subjected before the law and the law courts and none of them shall be above the law.

Though the above concept looks fine in the cases of violation of a law, its application in all the aspects of civic life makes it unjust. For example, if everyone is taxed equally (whether rich or poor) it shall be unjust to the people who are poor and we shall never be able to achieve economic equity in the society. Similarly, special privileges are required to uplift the status of those classes of the society that have remained backward.

Thus, we adopted the concept of ‘equal protection of the laws’ as well. This is an American concept which emphasises on the ‘equality of treatment in equal circumstances’, both in privileges conferred and liabilities imposed by the laws. This means, similar application of the same laws to the persons similarly situated. In other words, like should be treated alike without discrimination. The concept of ‘equals to be treated similarly’ and ‘unequals be treated differently’ is called ‘intelligible differentia’

It is due to the equal protection of the laws that different income groups are taxed differently. The very basis of reservations is the concept of equal protection of the laws.

Thus, equality before the law treats everyone at par without any discrimination while ‘equal protection of the laws’ connotes ‘equality of treatment in equal circumstances’.Both these concepts,‘equality before the law’ & ‘equal protection of the laws’ are important and quintessential.

The right conferred by article 14 is enforceable only against the state not against the private bodies as only the states have the authority to regulate the laws.

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PS : The above texts are ‘not the exact texts’ copied from the Constitution of India.They have been modified in simple language for the ease of understanding. Due consideration has been given to ensure that ‘the spirit and the meaning’, as contained in the Constitution, remains the same. Please refer to the Constitution of India for the original texts. Please feel free to point out any discrepancy that comes across you. We shall be happy to modify the same.

Constitution of India Day 14

On day 13, we have already read about the meaning of ‘the state’ and ‘private bodies’. We also saw that the absence of Fundamental Rights shall render the constitution meaningless. Asides, the spirit of our democracy depends upon how these rights are protected. Therefore, the constitution itself has made provisions to safeguard these rights. Article 13 tries to make sure that these rights are well protected.

Article 13 : Laws inconsistent with or in derogation of the fundamental rights.

It states following provisions with respect to the protection of fundamental rights:

1. All the laws in force in the territory of India immediately before the commencement of the Constitution shall be void to the extent of their inconsistency with Part-III (FUNDAMENTAL RIGHTS) of the Constitution. In other words, all those provisions of a law in force immediately before the commencement of the constitution which are inconsistent with the Part -III of the constitution shall be void. However, rest of the provisions of the same law which are not inconsistent with Part -III, shall not be void.

2. The state shall not make any law that takes away or abridges the rights conferred by part-III of the constitution. Asides, all those provisions of a law made which are in contravention of this clause shall be void. In other words, the law shall be void to the extent of its contravention of this clause.The second clause refers to the laws made after the commencement of the constitution.

3. (a) Here, “law” refers to all that has the force of law in the territory of India.This includes any Ordinance, Order, Bye-laws, Rule, Regulation, Notification, Custom or Usage. (b) Moreover, “laws in force”, as mentioned above, includes laws passed by the legislature of any other competent authority before the commencement of the Constitution.This does not include the ones previously repealed. This also includes those laws or parts of those laws which were not in operation either at all or in some areas.

4. Nothing in this article shall apply to any amendment of the Constitution made under article 368. In other words, it allows the parliament to make amendments in Part-III through the exercise of Article 368 but not through ordinary bills.

Please note that amendments through the exercise of Article 368 require a special majority i.e. the bill must be passed by both the houses of the Parliament not only by majority of members present and voting (simple majority) but must be passed by (a) the majority of the total strength (members) of the house along with (b) two third of the members present and voting. Asides, if a bill deals with the federal structure of India, then Article 368 requires the same to be ratified by half of the state legislatures as well after being passed by both the houses of the Parliament.

Thus, it is not easy to amend Part-III of the constitution. Although the Parliament has unfettered power to amend any part of the Constitution, the Parliament can not amend the basic structure of the Constitution which we shall read in the days to come.

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PS : The above texts are ‘not the exact texts’ copied from the Constitution of India.They have been modified in simple language for the ease of understanding. Due consideration has been given to ensure that ‘the spirit and the meaning’, as contained in the Constitution, remains the same. Please refer to the Constitution of India for the original texts. Please feel free to point out any discrepancy that comes across you. We shall be happy to modify the same.

Constitution of India Day 13

 

Heartiest Congratulations to all for completing Part-I (THE UNION AND ITS TERRITORY: Article 1 to 4) and  Part - II (CITIZENSHIP : Articles 5 to 11) of the Constitution. Now, we shall cover Part - III (FUNDAMENTAL RIGHTS : Articles 12 to 35) of the Constitution.

This part of the Constitution is very important as it covers our Fundamental Rights. Absence of these rights shall render the constitution meaningless. The spirit of our democracy depends upon how these rights are protected.

These rights are enforceable by the law courts and we can directly approach the Supreme Court of India or the High Courts in case of any violation of these rights. Some of these rights are so important that their enforceability is not suspended even after the proclamation of a national emergency under Article 352.

Let’s look at them one by one.

Article 12 : Definition. 

The current article defines the meaning of State for the purpose of this part of the Constitution. It extends the meaning of "the State” from the general meaning which refers to a province. Here, the State includes all of the following :

1. The Government of India

2. The Parliament of India

3. The Government of States (Provinces)

4. The Legislatures of States (Provinces)

5. All local or other authorities within the territory of India or under the control of the Government of India.

Thus, it is clear from the above that here “the State” includes all forms of governments, legislatures and authorities.

It is important to note that some of our Fundamental Rights may be violated by “the State” as well as “private bodies” and some by only “the State”. Therefore, while going through each of these rights please make a note which right is enforceable against whom : “only against the State” or “the State and private bodies both”.

Here “private bodies” covers any private entity including individuals.

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PS : The above texts are ‘not the exact texts’ copied from the Constitution of India.They have been modified in simple language for the ease of understanding. Due consideration has been given to ensure that ‘the spirit and the meaning’, as contained in the Constitution, remains the same. Please refer to the Constitution of India for the original texts. Please feel free to point out any discrepancy that comes across you. We shall be happy to modify the same.

Constitution of India Day 12

We have read so far that a person might be a citizen of India by virtue of article 5 or deemed to be a citizen of India by virtue of article 6 or 8. Aides, article 7 and article 9 take away the rights of citizenship.

Now, having read all this, one may question the validity of the rights of citizenship. In other words, once citizenship is conferred for how long will it be valid? The answer to this question is given in article 10.

Article 10 : Continuance of the rights of citizenship.

It states that every person who is or deemed to be a citizen of India under any of the foregoing provisions of the Part -II (Article 5, 6 & 8) of the constitution shall continue to be such a citizen, subject to the provisions of any law that may be made by the parliament.

In other words, once a citizen shall always be a citizen unless it is lost under a provision of any law in this regard.

It is important to note that a person can also renounce his citizenship herself/himself upon the registration of such declaration.

We saw that article 10 has already given a glimpse of the power of the parliament to regulate the rights of citizenship by law. Article 11 of the constitution clarifies this power lucidly.

Article 11 : Parliament to regulate the right of citizenship by law.

It states that nothing in Part -II (Article 5 to 11) of the constitution shall restrict the power of the Parliament to make any provision with respect to the following:

1. Acquisition of citizenship 

2. Termination of citizenship

3. All other matters relating to citizenship

The Citizenship Act, 1955 draws its constitutional backing from Article 11. 

You must have noticed that all the above discussed articles in Part -II (Article 5 to 9) deal with the question of citizenship before the commencement of the constitution. Thus, the importance of the Citizenship Act, 1955 becomes more evident to deal with the problem of the acquisition, termination and all other matters relating to citizenship after the commencement of the constitution.

Moreover, the power to regulate the rights of citizenship by law is exclusively with the Parliament and not with the state legislatures. This is to ensure that there is a  uniformity in rights of citizenship across the country.

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PS : The above texts are ‘not the exact texts’ copied from the Constitution of India.They have been modified in simple language for the ease of understanding. Due consideration has been given to ensure that ‘the spirit and the meaning’, as contained in the Constitution, remains the same. Please refer to the Constitution of India for the original texts. Please feel free to point out any discrepancy that comes across you. We shall be happy to modify the same.

Constitution of India Day 11

 

We have already read on Day 7 that we follow a concept of only ‘single citizenship’ and there is no separate citizenship for states. In other words,there is no dual citizenship. This concept is also applied in the sense that we can not have citizenship of any other country along with Indian citizenship.

This concept shall be more clear when we read article 9.

Article 9: Persons voluntarily acquiring citizenship of a foreign State not to be citizens.

This article states that no person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any foreign state.

The Citizenship Act (1955) also prescribes it as one of the three provisions of the loss of citizenship. The same is covered under the ‘loss of citizenship by termination’.

It states that when an Indian citizen voluntarily (consciously, knowingly and without duress, undue influence or compulsion) acquires the citizenship of another country, his Indian citizenship automatically terminates.

You must be wondering how ‘The Citizenship Act (1955)’ is different from the Constitutional provisions for ‘Citizenship’ provided in Part - II (Articles 5 to 11) of the Constitution. Please understand that the Constitution is the basic body of laws according to which other ordinary laws are made in the form of an Act by introducing a bill in the parliament. When the introduced bill is passed by both the houses of the parliament, it becomes an Act after the Presidential assent.

This point shall be more clear when you read Article 11.

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PS: The above texts are ‘not the exact texts’ copied from the Constitution of India.They have been modified in simple language for the ease of understanding. Due consideration has been given to ensure that ‘the spirit and the meaning’, as contained in the Constitution, remains the same. Please refer to the Constitution of India for the original texts. Please feel free to point out any discrepancy that comes across you. We shall be happy to modify the same.

Constitution of India Day 10

 

India has a large number of people of Indian origin residing outside India.

We have already read about articles 5, 6 & 7 but none of these articles deal with the rights of citizenship of these persons of Indian origin residing outside India.Today we shall discuss article 8 which deals with the rights of citizenship of these people.

Article 8 : Rights of citizenship of certain persons of Indian origin residing outside India.

It states that notwithstanding anything in article 5, a person shall be deemed to be a citizen of India provided he fulfills all of the following conditions :

1. S/he or either of her/his parents or any of her/his grandparents born in India. Here, India does not mean India after partition but as defined by the Government of india Act, 1935 (as originally enacted).

2. S/he has been registered as a citizen of India by the diplomatic or consular representative of India in the country outside India where s/he is an ordinary resident.

3. S/he is residing in that country for the time being on an application made by her/him to such diplomatic or consular representative before or after the commencement of the constitution.

4. The application must be in the form and manner prescribed by the Government of the Dominion of India or Government of India.

Please note that the term ‘Dominion’ was used to refer to the territory of British Commonwealth that had its own government. Thus, before the commencement of the Constitution, India functioned as a British Dominion and the government was referred to as Government of the Dominion of India.

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PS: The above texts are ‘not the exact texts’ copied from the Constitution of India.They have been modified in simple language for the ease of understanding. Due consideration has been given to ensure that ‘the spirit and the meaning’, as contained in the Constitution, remains the same. Please refer to the Constitution of India for the original texts. Please feel free to point out any discrepancy that comes across you. We shall be happy to modify the same.