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GS Paper: GS2-01.Indian Constitution-Historical underpinnings & evolution; Features, amendments, significant provisions, basic structure of Constitution

  • Governor’s role in calling an Assembly Session

    In yet another tug-of-war between Kerala Governor and CM, the Governor has turned down a request to summon a special sitting of the Assembly to debate the new three central farm laws.

    Q.The political nature of the office of the Governor, especially in Opposition-ruled states, has been underlined in several instances by courts. Discuss.

    Governor and Assembly Session

    • The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit…” says Article 174 of the Constitution.
    • The provision also puts on the Governor the responsibility of ensuring that the House is summoned at least once every six months.
    • Although it is the Governor’s prerogative to summon the House, according to Article 163, the Governor is required to act on the “aid and advice” of the Cabinet.
    • So when the Governor summons the House under Article 174, this is not of his or her own will but on the aid and advice of the Cabinet.

    Can the Governor refuse the aid and advice of the Cabinet?

    • There are a few instances where the Governor can summon the House despite the refusal of the Chief Minister who heads the Cabinet.
    • When the CM appears to have lost the majority and the legislative members of the House propose a no-confidence motion against the CM, then the Governor can decide on his or her own on summoning the House.
    • But the actions of the Governor, when using his discretionary powers can be challenged in court.

    Precursors set by the Supreme Court

    • A number of rulings by the Supreme Court have settled the position that the Governor cannot refuse the request of a Cabinet that enjoys the majority in the House unless it is patently unconstitutional.
    • The latest in the line of rulings is the landmark 2016 Constitution Bench ruling in which the Supreme Court looked into the constitutional crisis in Arunachal Pradesh.
    • The Governor had imposed President’s Rule in the state of Arunachal.
    • In ordinary circumstances during the period when the CM enjoy the confidence of the majority, the power vested under Article 174 must be exercised with the aid and advice of the CM and his CoM.
    • In the above situation, he/she has precluded [from taking] an individual call on the issue at his own will, or in his own discretion, the verdict said.
    • The court read: the power to summon the House as a “function” of the Governor and not a “power” he enjoys.

    What Sarkaria Commission had said?

    • The Sarkaria Commission of 1983, reviewed the arrangements between the Centre and the states, had said that so long as the CoM enjoys the confidence of the Assembly, its advice in these matters, unless patently unconstitutional must be deemed as binding on the Governor.
    • It is only where such advice if acted upon, would lead to an infringement of a constitutional provision if the CoM has ceased to enjoy the confidence of the Assembly.

    What happens if the Kerala government insists on holding the special session?

    • Since the Governor’s powers are limited with regard to summoning the House, there can be no legal ground to deny a request for summoning the session.
    • In such a political row, the Governor’s refusal can also be challenged in court.

  • Possibility of judicial use or misuse of Article 356

    Article 356 and the word ‘otherwise’ in it has led to the recent Andhra Pradesh High Court order. The order raises several questions. The article deal with this issue.

    Controversial High Court order

    • Recently the Andhra Pradesh High Court directed the Andhra Pradesh government to come prepared to argue on the ‘breakdown of constitutional machinery in the state’.
    • The order opens up the possibility of use or even misuse of Article 356 by the judiciary.
    • The Supreme Court of India has stayed the order.
    • However, we need to go deeper into this observation and look at the controversial provision of Article 356 due to which the High Court could make such an observation.

    Historical background of the article

    • Both India and Pakistan borrowed this provision from the Government of India Act, 1935.
    • Interestingly, the leaders of our freedom struggle were so very opposed to this provision that they forced the British government to suspend it.
    • The provision which we had opposed during our freedom struggle was incorporated in the Constitution strangely in the name of democracy, federalism and stability.
    • It was agreed in the Constituent Assembly that the Governor could use this emergency power.
    • By this time the Governor was supposed to be elected by the people of the State rather than nominated by the Centre.
    • After several revisions, provision became Article 278 (now Article 356).

    The issue with the word ‘otherwise’

    • H.V. Kamath criticised the word ‘otherwise’ and said only god knows what ‘otherwise’ means.
    • As the Governor had been made a nominee of the Centre by this time, he asked why the President could not have confidence in his own nominees.
    • ‘Otherwise’ can include anything including a presidential dream of breakdown of constitutional machinery in a state.
    • The Andhra Pradesh High Court could pass such an order due to this very term ‘otherwise’.
    • This word negates the ideals of constitutionalism by giving unlimited powers to the Centre, also allowed the High Court to overstepped the line.
    • But this is not the first instance of judicial overreach on this issue.
    • On August 13, 1997, a Patna High Court had observed that the High Court could also report to the President about the breakdown of constitutional machinery in the State.

    Repeated misuse of Article 356

    • In the very first invocation of Article 356 in 1951, central government removed the Gopi Chand Bhargava ministry in Punjab though he enjoyed the majority.
    • In 1959, it was used against the majority opposition government of the E.M.S. Namboodripad government in Kerala.
    • Indira Gandhi used Article 356 as many as 27 times.
    • The most notable case of non-use of Article 356 was the refusal of the P.V. Narasimha Rao government prior to the demolition of the Babri Masjid.

    Consider the question “Examine the contest in which the word ‘otherwise’ in Article 356 leads to judiciary exercising its powers. What are the concerns in such case?”

    Conclusion

    Ideally, the word ‘otherwise’ should be deleted from Article 356 and the provision be used only sparingly and to never remove a majority government.

  • Plea in SC against 1975-77 Emergency

    The Supreme Court agreed to look into whether it should examine the constitutionality of the proclamation of National Emergency in 1975 by the then Indira Gandhi-led government.

    Q.Discuss how the imposition of National Emergency under Art. 352 of the Constitution seek to change India’s federal character.

    What is the issue?

    • A 94-year old lady is seeking compensation for the loss she suffered due to the proclamation of emergency.
    • Petitioner has claimed that a number of her immovable properties were illegally occupied for their activities during the Emergency.
    • A bench of the Supreme Court has agreed to examine if the court could examine whether the proclamation of Emergency was constitutional.
    • The court was hesitant to take up the issue as 45 years have passed since the declaration of Emergency and examining such an issue on merits now could be a cumbersome process.

    What is a National Emergency?

    • A national emergency can be declared on the basis of “external aggression or war” and “internal disturbance” in the whole of India or a part of its territory under Article 352.
    • Such an emergency was declared in India in 1962 war (China war), 1971 war (Pakistan war), and 1975 internal disturbance (declared by Indira Gandhi).
    • But after the 44th amendment act 1978 added the provision for Internal Emergency.
    • The President can declare such an emergency only on the basis of a written request by the Cabinet headed by the Prime Minister.

    The 1975 Emergency

    • On June 12, 1975, the Allahabad High Court had declared the election of then PM Indira Gandhi as null and void.
    • Following the court decision, Gandhi moved the Supreme Court and stayed the high court’s decision allowing her to remain as PM while limiting her right to vote in the parliament till the appeal was decided.
    • Following an opposition rally for the resignation of Indira Gandhi, she made a decision to impose a national Emergency which would give the central government sweeping powers.
    • On June 25, 1975, then President Fakhruddin Ali Ahmed relying on Article 352 of the Constitution declared a national emergency in the country.

    What happened after the proclamation of Emergency?

    • From media censorship, suspension of civil liberties and attempts to fundamentally change the Constitution to suit the government, the Emergency is remembered as a dark period in India’s democracy.
    • The 38th- 42nd Constitutional amendments were passed during the Emergency which led to a tussle between the executive and the judiciary that gave the Parliament a power to amend the Constitution.
    • Many of these changes were either overturned by courts or were reversed in the 44th Constitutional amendment in 1978 which was brought in after the Janata government was voted to power.

    Series of Amendments

    • Through the 38th Constitutional Amendment, Gandhi sought to expand the power of the President and barred judicial review of the proclamation of Emergency.
    • The 39th amendment was intended to nullify the effect of the Allahabad High Court ruling that declared Gandhi’s election as null and void.
    • The amendment placed any dispute to the election to the office of the Prime Minister, President beyond the scope of judicial review.
    • The 40th amendment placed crucial land reforms in the Ninth schedule, beyond the scope of judicial review.
    • The 41st Amendment said no criminal proceedings “whatsoever” could lie against a President, Prime Minister, or Governor for acts before or during their terms of office.
    • In the 42nd amendment, the Parliament expanded its powers to amend the Constitution, even its ‘basic structure’ and curtail any fundamental rights.

    The 44th Amendment

    • Through the 43rd and 44th amendments, many of the amendments made during the Emergency were withdrawn.
    • Article 352- the provisions relating to Emergency itself was strengthened to prevent misuse by the executive.

  • Back in news: Right to Protest

    The Supreme Court has that said farmers have a constitutional right to continue with their “absolutely perfect” protest as long as their dissent against the three controversial agricultural laws did not slip into violence.

    Q.It is the abundant duty of the State to aid and limit the exercise of Right to Protest peacefully. Examine.

    Right to Protest

    • The right to protest is the manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.
    • The Constitution of India provides the right of freedom, given in Article 19 with the view of guaranteeing individual rights that were considered vital by the framers of the constitution.
    • The Right to protest peacefully is enshrined in Article 19(1) (a) guarantees the freedom of speech and expression; Article 19(1) (b) assures citizens the right to assemble peaceably and without arms.
    • Article 19(2) imposes reasonable restrictions on the right to assemble peaceably and without arms.

    Reasonable restrictions do exist in practice

    • Fundamental rights do not live in isolation. The right of the protester has to be balanced with the right of the commuter. They have to co-exist in mutual respect.
    • The court held it was entirely the responsibility of the administration to prevent encroachments in public spaces.
    • Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone.
    • The present case was not even one of the protests taking place in an undesignated area but was a blockage of a public way which caused grave inconvenience to commuters.

  • Delimitation should be based on 2031 Census

    A paper released by the Pranab Mukherjee Foundation (PMF) has suggested that the next delimitation exercise should be a two-step process:

    1. First a Delimitation Commission should be set up to redraw boundaries of constituencies on the basis of the 2031 Census
    2. And then a State Reorganization Act be passed to split States into smaller ones

    Q.With the new Parliament House, the role of the Presiding officers of the Houses is going to be more challenging. Discuss, how.

    Back in news

    • PM recently inaugurated a brand new Parliament Annexe building that will afford our lawmakers more space and enable better functioning.
    • In a few years from now, we might actually need a new building for Parliament altogether due to the likely increase in a number of seats in both Houses after the lifting of the freeze imposed by the 42nd Constitutional Amendment Act, 1976, which is due in 2026.

    What is Delimitation? Why is it needed?

    • Delimitation is the act of redrawing boundaries of Lok Sabha and state Assembly seats to represent changes in population.
    • In this process, the number of seats allocated to different states in Lok Sabha and the total number seats in a Legislative Assembly may also change.
    • The main objective of delimitation is to provide equal representation to equal segments of a population.
    • It also aims at a fair division of geographical areas so that one political party doesn’t have an advantage over others in an election.

    Why such debate?

    • The 84th Amendment to the Constitution in 2002 had put a freeze on the delimitation of Lok Sabha and State Assembly constituencies till the first Census after 2026.
    • While the current boundaries were drawn on the basis of the 2001 Census, the number of Lok Sabha seats and State Assembly seats remained frozen on the basis of the 1971 Census.
    • The population according to the last census preceding the freeze was 50 crore, which in 50 years has grown to 130 crores.
    • This has caused a massive asymmetry in the political representation in the country.

    Why there are fewer delimitations?

    • The Constitution mandates that the number of Lok Sabha seats allotted to a state would be such that the ratio between that number and the population of the state is, as far as practicable, the same for all states.
    • Although unintended, this provision implied that states that took little interest in population control could end up with a greater number of seats in Parliament.
    • The southern states that promoted family planning faced the possibility of having their seats reduced.
    • To allay these fears, the Constitution was amended during Indira Gandhi’s Emergency rule in 1976 to suspend delimitation until 2001.
    • Despite the embargo, there were a few occasions that called for readjustment in the number of Parliament and Assembly seats allocated to a state.

    Background

    • According to Article 81 of the Constitution — as it stood before the 42nd CAA 1976 — the Lok Sabha was to comprise of not more than 550 members.
    • Clause (2) of Article 81 provided that there shall be allotted to each State a number of MPs in such manner that the ratio between that number and the population of the State is the same for all States.
    • Further, clause (3) defined the expression “population” for the purposes of Article 81 to mean the population as ascertained at the last preceding census of which the relevant figures have been published.

    Dilemma over delimitation

    • States which took a lead in population control faced the prospect of their number of seats getting reduced and States which had higher population figures stood to gain by increase in the number of seats in Lok Sabha.
    • As a result of the freezing of the allocation of seats, the allocation done on the basis of the 1971 Census continues to hold good for the present population figures.
    • According to the 2011 Census, the population of our country stands at 121 crores with a registered electorate of 83.41 crores.
    • Basing the 1971 Census figure of 54.81 crores to represent today’s population presents a distorted version of our democratic polity and is contrary to what is mandated under Article 81 of the Constitution.
    • So when the first Census figure will be available after 2026 — that is, in 2031 — a fresh delimitation will have to do which will dramatically alter the present arrangement of seat allocation to the States in Parliament.

    Acquainting more MPs: A big challenge

    • One question that has to be addressed is how the Presiding Officers of the Houses/Legislatures will deal with such a large number of members to capture the attention of the Speaker to raise issues in the House.
    • Even with the current strength of 543 members, the Speaker finds it extremely difficult to conduct the proceedings of the House.
    • Members do not show much heed to the appeals of the Speaker, thereby making smooth conduct of House proceedings a difficult affair.
    • The Speaker’s directions and rulings are not shown proper respect, and disruptions of proceedings aggravate the problem.
    • The sudden increase in numbers will render the task of the Speaker more difficult and onerous.

    Conclusion

    • While 2026 is still a few years away. But we need to be clear on how to deal with the problems that are likely to arise, we will be forced to postpone the lifting of the freeze to a future date as was done in 2001.
    • This will only postpone the problem for which we must find a solution sooner or later.
    • Even the various proposals for electoral reforms which have been recommended by various Commissions over the past decade do not address these issues.
    • These are challenges which our political leaders have to address in the immediate future.

  • Personal choices, the Constitution’s endurance

    The order delivered by the Allahabad High Court underlines the most cherished values of our Constitution. The order examines the scope of individual choice and personal liberty on the touchstone of constitutional values.

    Background

    • The Allahabad High Court declared last month that religious conversions, even when made solely for the purposes of marriage, constituted a valid exercise of a person’s liberties.
    • The petitioners had approached the High Court seeking orders to quash a First Information Report (FIR) that was lodged against them.
    • The petitioners claimed that they were both adults competent to contract a marriage, and had, in fact, wedded in August 2019, as per Muslim rites and ceremonies, only after the girl had converted to Islam.
    • The State argued that petitioner’s partnership had no sanctity in the law, because a conversion with a singular aim of getting married was illegitimate.
    • In making this argument, the government relied on a pair of judgments of the Allahabad High Court, in particular on the judgment in Noor Jahan v. State of U.P. (2014).
    • There, the High Court had held that a conversion by an individual to Islam was valid only when it was predicated on a “change of heart” and on an “honest conviction” in the tenets of the newly adopted religion.
    • Additionally, the High Court had ruled that the burden to prove the validity of a conversion was on the party professing the act.

    Major takeaways from the High Court order

    • The Allahabad High Courtruled that the freedom to live with a person of one’s choice is intrinsic to the fundamental right to life and personal liberty.
    • It order recognises that a person’s freedom is not conditional on the caste, creed or religion that her partner might claim to profess.
    • And also that every person had an equal dominion over their own senses of conscience.
    • The High Court’s order makes it clear that it is neither the province of the state nor any other individual to interfere with a person’s choice of partner or faith.
    • By invoking the Supreme Court’s judgment in Puttaswamy, the High Court held that an individual’s ability to control vital aspects of her life inheres in her right to privacy.
    • Term privacy includes the preservation of decisional autonomy, on matters, among other things, of “personal intimacies, the sanctity of family life, marriage, procreation, the home, and sexual orientation”.
    •  It Court that the judgment in Noor Jahan was incorrectly delivered.
    • Marriage, the High Court said, is a matter of choice, and every adult woman has a fundamental right to choose her own partner. 

    Freedom of conscience under Article 25

    • Article 25 of the Constitution expressly protects the choices that individuals make.
    • In addition to the right freely to profess, practise and propagate religion, it guarantees to every person the freedom of conscience.
    • The idea of protecting one’s freedom of conscience goes beyond mere considerations of religious faith.

    Conclusion

    When we fail to acknowledge and respect the most intimate and personal choices that people make — choices of faith and belief, choices of partners — we undermine the most basic principles of dignity. Our Constitution’s endurance depends on our ability to respect these decisions, to grant to every person an equal freedom of conscience.

  • Implications of UP’s ‘love jihad’ ordinance for freedom of conscience

    The U.P. government’s ordinance seeking the prevention of illegal conversion has several provisions that go against the Constitution and restricts the freedom of conscience. 

    Objective of the ordinance

    • The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 seeks to prevent “love jihad” in the state
    • The ordinance makes it a criminal offence for a person to convert another by coercion, misrepresentation, fraud etc, which is unobjectionable.
    • A marriage solemnised for the “sole purpose” of unlawfully converting the bride or the groom is required to be declared void by the competent court.
    • There can be no objection to ordinance’s premise that converting somebody by fraud or misrepresentation is wrong.
    • In fact, though the members of the Constituent Assembly included the right to “propagate” one’s religion they considered it a “rather obvious doctrine” that this would not include forcible conversions.
    • However, the UP ordinance goes beyond this principle and does something quite strange.

    Unconstitutional provisions and issues with the ordinance

    1) Lack of clarity

    • The ordinance makes it a criminal offence to convert a person by offering her an “allurement”.
    • The term “allurement” is defined very broadly, to include even providing a gift to the person who is sought to be converted.
    • The use of the words “or otherwise” in the definition of allurement is puzzling.
    • The essential prerequisite of a criminal law is that it has to be precise.
    • A person cannot be put behind bars for doing something that a penal law does not clearly and unequivocally prohibit.
    • On this touchstone, the definition of “allurement” leaves much to be desired.

    2) Reconversion to a person’s previous religion is not illegal

    • It says that “reconversion” to a person’s previous religion is not illegal, even if it is vitiated by fraud, force, allurement, misrepresentation and so on.
    • In other words, if a person converts from Religion A to Religion B of her own volition, and is then forced to reconvert back to Religion A against her will, this will not constitute “conversion” under the ordinance at all.

    3) Unfairly treating all women in the same way

    • Illegal conversion under the ordinance attracts a punishment of 1-5 years in prison.
    • However, if the victim of the illegal conversion is a minor, a member of the Scheduled Castes or Scheduled Tribes or, strangely, a woman, the punishment is doubled — at 2-10 years behind bars.
    • In other words, it does not matter who the woman is, if somebody converts her against her will, the punishment can go up to 10 years in prison.
    • The ordinance unfairly paints all women with the same brush — assuming that all women are gullible, vulnerable and especially susceptible to illegal conversion.

    4) Buden of proof

    • The burden of proof in criminal cases is on the prosecution, and the presumption is that a person accused of committing an offence is innocent until proven guilty.
    • The Uttar Pradesh ordinance turns this rule on its head.
    • Every religious conversion is presumed to be illegal.
    • The burden is on the person carrying out the conversion to prove that it is not illegal.
    • The offence of illegal conversion is also “cognisable” and “non-bailable”, meaning that a police officer can arrest an accused without a warrant, and the accused may or may not be released on bail, at the discretion of the court.

    Time to revisit the past judgement

    • In Rev Stainislaus v State of Madhya Pradesh (1977), the Supreme Court held that the fundamental right to “propagate” religion does not include the right to convert a person to another religion.
    • In that case, the court had upheld anti-conversion statutes enacted by the states of Orissa and Madhya Pradesh.

    Conclusion

    The ordinance puts an incredible chilling effect on the freedom of conscience and state must reconsider it.

  • UP Law against Forceful Inter-Faith Marriage and Conversions

    The UP Cabinet has cleared a draft ordinance against forceful inter-faith conversions for marriage, amid similar steps by other states.

    Try this question:

    Q. In a world where religiosity is rising, the contemporary liberal ideas seem outdated and incapable of handling dangerous issues of religious bigotry. Critically comment.

    What is the proposed UP law on ‘love jihad’?

    • The proposed law defines punishment and fine for three different cases.
    1. Conversion done though “misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means” would face jail term of one to 5 years, and a minimum fine of Rs 15,000.
    2. Conversion of a minor, a woman from the SC or ST would have to face a jail term from three to 10 years, with a minimum fine of Rs 25,000.
    3. If such conversion is found at the mass level, then those guilty would face jail term from three to 10 years, with a minimum fine of Rs 50,000.
    • It proposes among other things that a marriage will be declared “shunya” (null and void) if the “sole intention” of the same is to “change a girl’s religion”.

    Who can convert and how can they do it under the proposed law?

    • Under the new proposed law, anyone wanting to convert into another religion would have to give it in writing to the District Magistrate at least two months in advance.
    • The government is supposed to prepare a format for the application and the individual has to fill the application for conversion in that format.
    • However, under the new law, it would be the responsibility of the one going for the religious conversion to prove that it is not taking place forcefully or with any fraudulent means.
    • In case, any violation is found under this provision, then one faces a jail term from 6 months to 3 years and fine of minimum Rs 10,000.

    Need for such law

    • The state of UP is witnessing rising incidents of forced religious conversions or conversions through fraudulent ways.
    • The extreme right wing politicians in the state were quiet vocal against alleged religious conversions.
    • There are cases of being allegedly lured and honey-trapped by men and those girls now seeking their help to free themselves.

    Interfaith marriages and the Constitution

    • The right to marry a person of one’s choice is a guarantee under Article 21.
    • At the same time, freedom of conscience, the practice and propagation of a religion of one’s choice, including not following any religion, are guaranteed under Article 25.
    • One set of rights cannot invalidate the other.

    What do critics say?

    • Such law to regulate matrimonial relationships between two consenting adults is simply against the constitutional guarantees.
    • The right to marry a person of one’s choice flows from the freedom of individuality, naturally available to any individual.
    • Hence, interfaith marriages and religious conversions should not be the matter of concern for social watchdogs.
    • Hence, the mere statement of two consenting adults about the existence of their matrimonial relation is sufficient.

  • Importance of constitutional and public morality in democracy

    Democracy has evolved in many ways with time. The article examines its evolution in the Indian context.

    Historical background of democracy

    • In recorded history, the Greeks were the first to experiment with models of government.
    • There were monarchies, oligarchies and democracies among the Greek city-states of the 5th Century BCE.
    • Aristotle wrote that while monarchies were for the benefit of the monarchs and oligarchies for the benefit of men with means, democracies were for the benefit of men without means.
    • Democracy has travelled a long way from those times.
    • In the world’s successful democracies like the US, UK and India, there is a fine balance between the elected and non-elected institutions with enough safeguards.

    How democracy worked in India

    • There was much scepticism about the idea of universal adult franchise during the making of the Indian Constitution.
    • But Rajendra Prasad assured the Assembly’s members about the raw political wisdom of the average Indian as also the strength of the other institutions to safeguard the democratic process.
    • However, the infamous Emergency exposed the flaws in Indian democracy.

    Gandhiji’s and B R Ambedkar’s approach

    • Mahatma Gandhi was not a big admirer of the parliamentary system.
    • Gandhi’s view was that in the British system, the parliament works only for partisan interest — and not for the national interest.
    • He wrote in Harijan in January 1937 that by political independence he meant system suitable to Indian context i.e. Ram Rajya — sovereignty of the people based on pure moral authority.
    • B R Ambedkar too described democracy in India as “only a top-dressing” on an Indian soil “which is essentially undemocratic”.
    • He underscored the importance of social democracy for the success of political democracy.
    • Gandhi was referring to the tyranny of the British rule and Ambedkar was responding to the oppressive caste system.
    • Neither was against democracy, but both were against the idea of “majoritarian rule”.
    • For Gandhi, democracy meant the weak getting the same chance as the strong.
    • For Ambedkar, it was about giving voice to the voiceless.
    • For democracies to succeed, both believed that the parliamentary majorities need to be restrained through constitutional ethics and public morality.
    • Constitutional ethics is about leaders respecting constitutional order, conventions and institutions.
    • Gandhi’s greater emphasis was on public morality.
    • He insisted that for India’s democracy to succeed, the Congress should convert itself into a lok sevak sangh and work at the grassroots level.

    Consider the question “Public morality and unelected institution are necessary checks on the elected government not inimical to it. Comment.”

    Conclusion

    India’s democracy, as envisaged by the makers of its Constitution, thrived essentially because of the respect of the leaders for ethical constitutionalism and moral activism of the grassroots activists. Neither should see the other as an enemy and try to bring them down.

  • Article 32 and the Supreme Court

    A Supreme Court bench headed by CJI has observed that it is “trying to discourage” individuals from filing petitions under Article 32 of the Constitution.

    Try this PYQ:

    Q.Which of the following is included in the original jurisdiction of the Supreme Court?

    1. Dispute between the Government of India and one or more States
    2. A dispute regarding elections to either House of the parliament or that of Legislature of a State
    3. A dispute between the Government of India and Union Territory
    4. A dispute between two or more States.

    Select the correct answer using the codes given below:

    (a) 1 and 2

    (b) 2 and 3

    (c) 1 and 4

    (d) 3 and 4

    What is Article 32?

    • Article 32 deals with the ‘Right to Constitutional Remedies’, or affirms the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred in Part III of the Constitution.
    • It is one of the fundamental rights listed in the Constitution that each citizen is entitled.
    • It states that the Supreme Court “shall have the power to issue directions or orders or writs for the enforcement of any of the rights conferred by this Part”.
    • The right guaranteed by this Article “shall not be suspended except as otherwise provided for by this Constitution”.
    • Dr B R Ambedkar has called it the very soul and heart of the Constitution. It cannot be suspended except during the period of Emergency.

    Rights protected by A32

    • The article is included in Part III of the Constitution with other fundamental rights including to Equality, Freedom of Speech and Expression, Life and Personal Liberty, and Freedom of Religion.
    • Only if any of these fundamental rights is violated can a person can approach the Supreme Court directly under Article 32.

    Types of Writs under it

    Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs:

    1. Habeas corpus (related to personal liberty in cases of illegal detentions and wrongful arrests)
    2. Mandamus — directing public officials, governments, courts to perform a statutory duty;
    3. Quo Warranto — to show by what warrant is a person holding public office;
    4. Prohibition — directing judicial or quasi-judicial authorities to stop proceedings which it has no jurisdiction for; and
    5. Certiorari — re-examination of an order given by judicial, quasi-judicial or administrative authorities.
    • In civil or criminal matters, the first remedy available to an aggrieved person is that of trial courts, followed by an appeal in the High Court and then the Supreme Court.
    • When it comes to violation of fundamental rights, an individual can approach the High Court under Article 226 or the Supreme Court directly under Article 32.

    Supreme Court’s recent observations

    • The observation came during the hearing of a petition seeking the release of a journalist, who was arrested while reporting on an alleged gangrape and murder.
    • The court asked why the petitioners could not go to the High Court first.
    • In another case invoking Article 32, a Nagpur-based man was arrested for alleged defamatory content against Maharashtra CM, the same Bench directed him to approach the High Court first.