Friday, July 4, 2025
spot_img
Dashboard
Home Blog Page 50

Lex non a rege est alterius

Sarita Gupta
-
0
Lex non a rege est alterius

Lex non a rege est alterius

Literal Meaning: The Law must not be violated even by the King

Origin: Latin

Explanation

The Latin Legal Maxim- “Lex non a rege est alterius” underscores the concept that the law is supreme and even the sovereign (King) is not above the law. This is a foundational concept in many legal systems, including that of India, where the rule of law is a key principle of the Constitution.

The Magna Carta of 1215 established the constitutional principles which curb the power of the King in medieval England. Earlier it was believed that the monarch (King) derived the power from God, also they are considered representatives of God on Earth. Thus, through the constitutional principles, there is a shift of sovereignty towards the people from the divine law.

India’s legal system is developed through colonial influence which gives emphasis on the principle of rule of law and judicial independence. The Independence of India marked the introduction of the written Constitution, which is regarded as the supreme law of the land. It even states that nobody is above the law irrespective of their position or power in society, thereby promoting justice, equality, and the rule of law. The maxim is regarded as the guiding principle that underscores the country’s commitment towards establishing a just and equitable society.

Application

In India, this maxim’s application can be seen in the following forms-

  • Constitutional Supremacy- In India, the Constitution of India is regarded as the supreme law of the land, where the rule of law prevails, which implies that even the President and the Prime Minister are subject to the provisions of the Constitution.
  • Separation of Power- The Indian legal system provides a system of check balance among the branches of government (Legislative, Executive, and Judiciary), thus emphasizing that no branch should dominate the other.
  • Judicial Review- The Judiciary has the power to review the constitutionality of any act, law, or provision that is inconsistent or ultra vires to the Constitutional provision,
  • Rule of law- The principle of Rule of Law is a core element that describes the Lex non a rege est alterius, in the best way. It is evident from many cases, that even the politicians, government officials, and other individuals having position and power in the society are accountable for their actions.

Benefits of Lex non a rege est alterius

  • Ensures Rule of Law- As stated above, this principle of the rule of law is the core element that describes this maxim in the best manner. The Rule of Law promotes consistency, stability, and predictability in the legal system of the country.
  • Promotes Accountability- Through the Principle of Separation of Power, the individuals are accountable for their actions, which is a fundamental aspect of a democratic society.
  • Ensure Public Participation- Every democratic society emphasizes the greater participation of the public at large. When all individuals irrespective of their position and power are treated equally under the law, it ensures public trust and confidence.

Criticism of Lex non a rege est alterius

  • Challenges in Implementation- Issues such as corruption undermine the application of the rule of law in society. Sometimes political influence is evident in the society which will undermine the effectiveness of the rule of law.
  • Judicial Overreach- Though the Judiciary is empowered with the principle of judicial review sometimes it is evident that the judiciary encroach upon the domain of legislative and executive branches of government.
  • Strict Interpretation- We know that law is dynamic and subject to adaptation to changing societal circumstances but due to strict interpretation it can lead to rigidity in law and outdating of law.

Case Law

  • Indira Nehru Gandhi v Raj Narain and others (1975)- The Supreme Court reinforced the principle of the rule of law and stated that not even the Prime Minister, is above the law. In this case, the Supreme Court of India invalidated the election of the then Prime Minister Indira Gandhi on the grounds of electoral malpractice, demonstrating the supremacy of the law over executive authority.
  • S.R. Bommai v Union of India (1994)- In this case, the Supreme Court examined the extent of the President’s power to dismiss state governments under Article 356 of the Constitution. The Court ruled that such decisions are subject to judicial review. This case affirmed that the exercise of constitutional powers by the executive must conform to the Constitution, reinforcing the supremacy of law over executive action.

The Indian legal system upholds the principle of “Lex non a rege est alterius,” which guarantees that the rule of law governs the nation, through its constitutional framework and judicial rulings.

Also Read: 
Rights of undertrial prisoners in India
How To Send A Legal Notice In India

Ignorantia juris non excusat

Sarita Gupta
-
0
Ignorantia juris non excusat

Ignorantia juris non excusat

Literal Meaning: Ignorance of the Law is no excuse.

Origin: Roman Law

Explanation

It should be noted that ignorance of the law is not an excuse, but ignorance of the facts is. It is widely acknowledged that the maxim ‘Ignorantia juris non excusat’ is originated in Roman times, and Justinian’s Code both make explicit reference to this legal maxim. It states that while ignorance of the law is not excused, ignorance of the facts is. Since English law is widely known to have its roots in Roman law, it stands to reason that its traces also found their way into English Common law.

This is the fundamental principle of legal philosophy. According to the maxim, it states that individuals are expected to be aware of the law, and being ignorant of the law doesn’t absolve them from their responsibility or punishment.

Objective or Purpose

  • Maintenance of Legal Order: This maxim contributes to the preservation of social and legal order by ensuring that all members of society are subject to the same regulations. Such uniformity in regulation helps to prevent any type of chaos.
  • Legal Awareness: This maxim focuses on educating oneself about legal development including legal requirements and responsibilities by holding individuals accountable for ignorance.
  • Prevention of Abuse: By holding individual accountable for the ignorance of law, it promotes integrity and effectiveness in the legal system.

Benefits of Ignorntia Juris non-excusat

  • Accountability: The maxim holds individuals accountable for their actions, thereby promoting adherence to law in the society.
  • Equality: This maxim gives emphasis on the principle of equity and social justice through the uniform application of legal principles and laws.
  • Efficient Judicial Process: By rejecting ignorance as a defense, the legal system streamlines judicial proceedings. Courts are not required to evaluate an individual’s knowledge of the law, making the adjudication process more efficient.

Criticism of Ignorantia Juris non excusat

  • Complex Legal Principles: It is unrealistic that one should have a complete knowledge of all the law of the country. The languages used are so complex that a layman could find difficulty in its understanding. Thus, this will be a major drawback for illiterate or poor people of the society.
  • Evolving Legal Principles: As law is dynamic and is subject to change due to change in societal norms and attitude. Thus, this poses a major concern about the fairness of holding individuals responsible for laws that they may not have had a reasonable knowledge of.

Illustration

Let’s assume A driver of a small town drives to a big city where wearing of helmet and other traffic regulations are mandatory. The individual drove without a helmet and thereby was held by police and was fined. Here the individual cannot take defence of not knowing about the traffic regulations as Ignorantia Juris non excusat (Ignorance of law is not an excuse)

Case Law

  • State of Maharashtra v. Mayer Hans George (1965): The accused was found to be ignorant of the Foreign Exchange Regulation Act, of 1947. The Supreme Court dismissed the defence of not knowing the law, stating that people are expected to be aware of the law and cannot avoid responsibility by saying they didn’t know.
  • State of Rajasthan v. Jaipur Hosiery Mills (1971): The respondent claimed to be ignorant of the sales tax obligation imposed by the State. The Apex Court gives emphasis on this maxim and held that ignorance of tax laws does not exempt businesses from compliance.

  • Kartar Singh v. State of Punjab (1994): The case primarily dealt with the constitutionality of Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). But the appellant’s claim of being ignorant of penalties under the act attracts this case on reinforcing this legal maxim of Ignorntia Juris non excusat.

Also Read: Animus Nocendi

What is “Jamanat Jabt” Rule in Elections?

Dimple Kanojiya
-
0
What is “Jamanat Jabt” Rule in Elections?

Introduction

Elections are a cornerstone of democracy, providing citizens with the opportunity to choose their representatives. To uphold the integrity and seriousness of this process, various regulations are put in place. One such regulation in India is the “Jamanat Jabt” rule. This article delves into the meaning, purpose, and implications of the “Jamanat Jabt” rule within the Indian electoral system.

Definition of “Jamanat Jabt”

The term “Jamanat Jabt” is utilized within the electoral framework of India. The “jamanat” (security deposit) is a mandatory monetary deposit that candidates must submit alongside their nomination papers to participate in an election. This security deposit is designed to discourage non-serious candidates from contesting.

Should a candidate fail to secure a specified minimum number of votes, the security deposit is subject to forfeiture. This rule is intended to ensure that candidates are earnest in their intent to participate in the electoral process.

In Urdu, “zabt” translates to “seizure” or “confiscation,” making “Jamanat Jabt” synonymous with the forfeiture of the security deposit if the candidate does not achieve the requisite percentage of votes.

Illustration

‘Jamanat’ refers to a security deposit, and ‘Zabt’ means forfeiture.

Therefore, ‘Jamanat Jabt’ signifies the forfeiture of a security deposit.

Candidates must submit a security deposit of Rs. 10,000 for Parliamentary elections and Rs. 5,000 for Assembly elections. For candidates belonging to Scheduled Castes or Scheduled Tribes, the deposit amount is halved.

The security deposit is refunded if the candidate is not elected but secures more than 1/6th of the total valid votes cast in the election.

If the candidate receives exactly 1/6th of the total valid votes, the deposit is not refunded.

If the candidate is elected, the deposit is refunded regardless of whether they polled more than 1/6th of the total valid votes cast.

Jamanat Jabt In India

In India Candidates, while filling out the election form, according to Section 34 (1) of the People’s Representation Act, 1951, for the election of a ‘Parliamentary constituency’, a security amount of 25 thousand rupees and 10 thousand rupees for contesting elections in the assembly constituency. The amount is to be deposited. When a candidate fails to get 1/6 of the total valid votes in the election, the amount secured by him is seized by the Election Commission.

During the registration to contest in elections, the candidate has to submit a security deposit. Every candidate has to get some minimum votes. The minimum votes required are 1/6th of the total votes polled in his constituency. If any candidate fails to do so his security deposit is not refunded to him. This is known as “zamanat zabt” in Hindi.

  • For Lok Sabha elections the security deposit is Rs 25,000 and the same for ST candidates is Rs 12,500.
  • For Vidhan Sabha elections the security deposit is Rs 10,000 and the same for ST candidates is Rs 5,000.

Legal Criteria for Forfeiture

Under the “Jamanat Jabt” rule, the legal criteria for forfeiture are clearly defined. A candidate must secure a minimum of one-sixth (16.67%) of the total valid votes cast in their constituency. Failure to meet this threshold results in the confiscation of the candidate’s security deposit by the Election Commission of India.

Under this rule, candidates must secure at least 16.67% of the total valid votes in their constituency to avoid forfeiture of their deposit. The specific legal criteria for forfeiture are:

  • The candidate must obtain a minimum of 16.67% of the total valid votes cast.
  • The candidate must receive at least one-sixth of the total valid votes.

Significance of the Electoral Process

The “Jamanat Jabt” rule has significant legal and procedural importance in preserving the integrity and efficiency of elections:

  • Reduction of Electoral Complexity: By limiting the number of non-serious candidates, the rule simplifies the electoral process and facilitates informed voter decisions.
  • Efficient Resource Allocation: The rule aids in the efficient use of time, finances, and manpower by reducing candidate numbers.
  • Encouragement of Serious Candidates: The rule incentivizes serious contenders while dissuading those without genuine public backing, resulting in a more focused and competitive electoral contest.

Legal Implications for Candidates

  • Financial Loss: The immediate legal consequence of the “Jamanat Jabt” rule is the financial loss incurred by the candidate. The amount of the security deposit varies depending on the type of election (e.g., parliamentary, state assembly). If the candidate does not secure the necessary votes, the deposit is legally forfeited.
  • Deterrence of Non-Serious Candidates: The imposition of a financial penalty serves as a legal deterrent to non-serious or fringe candidates, ensuring the credibility of the electoral process.
  • Promotion of Viable Candidates: The rule ensures that only those candidates with substantial public support are encouraged to contest, fostering a more competitive and meaningful electoral environment.

Criticisms and Controversies

Despite its benefits, the “Jamanat Jabt” rule has been subject to legal criticism:

  • The disadvantage to New Entrants: Critics argue that the rule may legally disadvantage new and smaller parties or independent candidates, who, despite genuine intentions, might find it challenging to secure the necessary votes.
  • Financial Barriers: The financial implications can be perceived as a barrier for economically disadvantaged candidates, potentially conflicting with the democratic principle of equal opportunity.
  • Debate on Threshold: There is ongoing legal debate regarding the appropriate threshold for forfeiture, with differing opinions on whether it should be adjusted to balance deterrence and fairness.

 Case Laws Related to “Jamanat Jabt” in Indian Elections

The “Jamanat Jabt” rule, which refers to the forfeiture of a candidate’s security deposit if they fail to secure a specified percentage of votes, has been the subject of various legal interpretations and judgments in India. Here are some significant case laws that address different aspects of this rule:

  1. Kanhiya Lal Omar vs R.K. Trivedi & Ors. (1985) Citation: AIR 1986 SC 111

Summary: This landmark case dealt with the validity of the security deposit requirement and its forfeiture under the Representation of the People Act, 1951. The petitioner argued that the requirement of a security deposit and its forfeiture was arbitrary and unconstitutional. The Supreme Court of India upheld the provision, stating that it was a reasonable measure to prevent non-serious candidates from contesting elections, thereby ensuring the efficiency and seriousness of the electoral process.

Court Decision: The court confirmed that the security deposit and its forfeiture are valid under the Constitution, emphasizing the necessity of deterring frivolous candidates.

  1. Lily Thomas vs Speaker, Lok Sabha & Ors. (1993) Citation: AIR 1993 SC 1650

Summary: In this case, the petitioner challenged the forfeiture of her security deposit on the grounds that the criteria for forfeiture were discriminatory and violated her right to equality under Article 14 of the Constitution. The Supreme Court rejected this argument, holding that the provision serves a legitimate purpose in maintaining the integrity of elections and is applied uniformly to all candidates.

Court Decision: The court reinforced that the forfeiture criteria are not discriminatory and are essential for ensuring that only serious candidates participate in elections.

  1. Janaki Prasad Parimoo vs Election Commission of India (1978) Citation: AIR 1978 SC 1037

Summary: This case addressed the procedural aspects of the security deposit and its forfeiture. The petitioner contended that the Election Commission did not follow due process in forfeiting his deposit. The Supreme Court held that the procedural requirements outlined in the Representation of the People Act, 1951, must be strictly adhered to by the Election Commission to ensure fairness and transparency in the electoral process.

Court Decision: The court emphasized the importance of due process and adherence to procedural requirements in the implementation of the forfeiture rule.

  1. Rani Laxmibai vs The Election Commission of India & Ors. (1999) Citation: AIR 1999 SC 1005

Summary: This case involved a challenge to the high threshold for forfeiture of the security deposit. The petitioner argued that the threshold was excessively high and hindered smaller parties and independent candidates. The Supreme Court, however, upheld the threshold, stating that it was necessary to ensure that only candidates with substantial public support contest elections.

Court Decision: The court supported the existing threshold for forfeiture, recognizing it as a necessary measure to filter out candidates without significant public backing.

  1. Rajendra Singh vs The State of Uttar Pradesh (2003) Citation: AIR 2003 SC 1411

Summary: This case examined the applicability of the “Jamanat Jabt” rule inlocal body elections. The petitioner challenged the rule’s applicability, arguing that it should be confined to higher levels of elections like parliamentary and assembly elections. The Supreme Court ruled that the rule’s applicability could extend to local body elections as well, to maintain uniformity and seriousness across all levels of the electoral process.

Court Decision: The court extended the applicability of the forfeiture rule to local body elections, ensuring a consistent approach to deterring non-serious candidates across all electoral levels.

These case laws illustrate the judicial interpretation and validation of the “Jamanat Jabt” rule in the Indian electoral system. The Supreme Court of India has consistently upheld the rule, emphasizing its importance in maintaining the integrity and efficiency of the electoral process. While addressing concerns about fairness and discrimination, the judiciary has recognized the rule as a necessary mechanism to deter frivolous candidates and ensure serious electoral contests.

Conclusion

The “Jamanat Jabt” rule is a critical legal provision within the Indian electoral system, ensuring that only serious candidates participate in elections. While it aids in maintaining the electoral process’s integrity and efficiency, it also raises important legal and ethical debates about inclusivity and fairness. As India evolves as a democracy, continued legal discussions and potential reforms regarding such rules are vital to fostering a fair and representative electoral landscape.

Recommendations

  1. The Election Commission of India should consider reviewing the threshold for forfeiture to ensure that it is fair and reasonable.
  2. The Commission should also consider providing exceptions or exemptions for economically disadvantaged candidates who may be unable to meet the financial requirements.
  3. The government should consider implementing measures to increase transparency and accountability in the electoral process, including providing public disclosure of candidate finances and ensuring that all campaign expenses are reported accurately.
  4. The Supreme Court of India should continue to play an active role in monitoring and reviewing the implementation of the “Jamanat Jabt” rule to ensure that it is fair and just.

By implementing these recommendations, India can continue to strengthen its democratic institutions and ensure that all citizens have an equal opportunity to participate in the electoral process.

Also Read:
Shadwell vs Shadwell
How To Send A Legal Notice In India

Shayara Bano vs Union of India

Shreya Sharma
-
0
Shayara Bano vs Union of India

Shayara Bano vs Union of India

Detail of the case

Title of the case – Shayara Bano vs Union of Inda

Citation –AIR 2017 9 SCC 1 (SC)

Name of Appellant- Shayara Bano and others

Name of the respondent- Union of India, All India Muslim Personal Law Board and Rizwan Ahmed Court

The Supreme Court of India Date of judgment – 22nd August 2017

Bench – Justice Jagdish Singh Khehar, Justice S. Abdul Nazeer, Justice Rohinton Fali Nariman, Justice Uday Lalit, and Justice K.M. Joseph constituted the Bench.

Brief facts- 

Shayara Bano, a Muslim girl, was married to Rizwan Ahmed for 15 years. But in 2016, he divorced her by way of triple talaq without stating any reason. In return, she filed a writ petition in the Supreme Court challenging the constitutionality of talaq-e-biddat along with practices of polygamy and nikah halala as they infringe upon the fundamental rights of women (Article 14,15, 21,24). Women’s rights organizations like BEBAK collective and Bhartiya Muslim Mahila Andolan supported her. The opposition i.e. All India Muslim Personal law argued on the fact that Muslim law is not codified and hence not subject to judicial review and that divorce is a religious practice under Article 25 of the Constitution and thus protected.

The Court accepted the petition by Shyara Bano and formed a five-judge constitutional bench in 2017. The first hearing was held on May 11, 2017, and on 22nd August of the same year, it gave its decision on the case.

The case Shayara Bano vs. Union of India () is a landmark judgment by the Supreme Court of India regarding the constitutional validity of the practice of triple talaq (talaq-e-biddat) among Muslims in India. Here’s a detailed overview:

The case Shayara Bano vs. Union of India () is a landmark judgment by the Supreme Court of India regarding the constitutional validity of the practice of triple talaq (talaq-e-biddat) among Muslims in India. Here’s a detailed overview:

Background

The case was filed by a 35-year-old Muslim woman, Shayara Bano, a Balyan, UP resident, with a charge that her husband had pronounced talaq three times at one go, meaning divorce over, on the phone. She contended that this impugned practice was contrary to free she in human rights under the constitution of India, including respectively Articles 14 (Equality before Law), 15 (Prohibition of discrimination on grounds), 21 (Protection of life and personal liberty), and 25 (Freedom of Religion).

Supreme Court Judgment

In a split verdict (3:2), a five-judge bench of the Supreme Court ruled on August 22, 2017, that it was not supremely exceptional for women in the 10-50 age group declaring triple talaq unconstitutional.

Key Points of the Judgment:

1. Majority Opinion: Justices Kurian Joseph, Rohinton Fali Nariman, and Uday Umesh Lalit formed the majority. They held that:

– Triple talaq is not an essential religious practice under Islam.

– It is arbitrary and violates Article 14 of the Constitution.

– Therefore, it is unconstitutional.

2. Minority Opinion: Chief Justice J.S. Khehar and Justice S. Abdul Nazeer dissented. They opined that:

– Triple talaq is part of Muslim personal law and thus has protection under Article 25 (Freedom of Religion).

– However, they suggested that Parliament should enact legislation to address the issue.

Aftermath:

The judgment led to the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019. This law criminalized the practice of triple talaq, making it a punishable offense with imprisonment up to three years.

Significance:

– Legal Impact: The decision was a significant step towards ensuring gender equality and protecting the rights of Muslim women.

– Social Impact: It was widely regarded as a move towards modernization and reform within the Muslim community.

– Political Impact: The case and subsequent legislation highlighted the role of judiciary and legislature in addressing issues related to personal laws in India.

The Shayara Bano case is a crucial example of the intersection of constitutional law, religious practices, and women’s rights in India.

Conclusion

In a historic decision on August 22, 2017, the Supreme Court of India ruled by a majority of 3:2 that the practice of instant triple talaq (talaq-e-biddat) is unconstitutional. The bench, consisting of five judges from different religious backgrounds, delivered a split verdict but ultimately declared the practice illegal and void. The key points of the conclusion are as follows:

1. Unconstitutionality of Triple Talaq:

– The majority opinion held that instant triple talaq is not essential to Islamic practice and violates the fundamental rights of Muslim women as guaranteed by the Indian Constitution.

– Justices Rohinton Nariman, U.U. Lalit, and Kurian Joseph concluded that the practice was arbitrary and violated Article 14 (right to equality) and Article 21 (right to life and personal liberty) of the Constitution.

2. Judicial Review and Personal Laws:

– The court asserted its authority to examine personal laws and practices to ensure they comply with constitutional principles, specifically concerning fundamental rights.

– This judgment affirmed that personal laws could not claim immunity from constitutional scrutiny.

3. Immediate Impact and Legislative Action:

– Following the verdict, the court urged the government to legislate on the matter to provide a comprehensive framework to deal with divorce among Muslims.

– In response, the Indian Parliament passed the Muslim Women (Protection of Rights on Marriage) Act in 2019, which criminalized the practice of instant triple talaq.

4. Protection of Women’s Rights:

– The judgment was hailed as a significant step forward for gender justice and the protection of women’s rights in India.

– It was seen as a milestone in the fight against discriminatory practices that have long affected Muslim women, providing them with greater legal security and equality.

In conclusion, the Shayara Bano case marked a pivotal moment in Indian jurisprudence, reinforcing the constitutional mandate of equality and justice for all citizens, irrespective of their religion. By declaring instant triple talaq unconstitutional, the Supreme Court not only upheld the rights of Muslim women but also set a precedent for scrutinizing personal laws through the lens of fundamental rights, paving the way for more progressive reforms in the future.

 

Also Read:
Shadwell vs Shadwell
How To Send A Legal Notice In India

Educational Rights in Indian Constitution

Dimple Kanojiya
-
0
Educational Rights in Indian Constitution

Introduction of Educational Rights

“Education is the perfect companion and the greatest ally in life’s journey.” – Swami Vivekananda

Education is a fundamental right in India, pivotal for the nation’s social, economic, and political development. The Indian Constitution, through various provisions, ensures that every citizen has the right to access quality education. This article explores these constitutional provisions, focusing on how they ensure both access to and the quality of education

Also Read:
Shadwell vs Shadwell
How To Send A Legal Notice In India

Right to Protest vs. Public Order

Dimple Kanojiya
-
0
Right to Protest vs. Public Order

Introduction

In a democracy like India, the right to protest is both a fundamental freedom and a cornerstone of civil society. However, this right often intersects with the imperative of maintaining public order, leading to a delicate balancing act under the Indian Constitution. Through these seminal cases, the Indian judiciary has underscored the importance of striking a delicate balance between the right to protest and the imperative of maintaining public order. Upholding constitutional values of democracy, free speech, and dissent, these judgments have guided navigating the complex terrain where individual liberties intersect with collective security, ensuring that India’s democratic fabric remains resilient and vibrant

At the heart of any democracy lies the right to protest – a fundamental avenue for citizens to voice dissent, demand change, and participate in the democratic process. In India, a nation known for its vibrant democracy and diverse populace, this right is enshrined in Article 19(1)(a) of the Constitution, guaranteeing the freedom of speech and expression, including the right to assemble peacefully and without arms. However, while protests serve as a powerful mechanism for social change, they also pose challenges to public order, safety, and security. This article delves into the intricate interplay between the right to protest and maintaining public order under the framework of the Indian Constitution, examining judicial interpretations, regulatory frameworks, and the way forward.

Constitutional Framework:

The Indian Constitution, a beacon of democracy, guarantees its citizens the right to freedom of speech and expression under Article 19(1)(a). This provision empowers individuals to express dissent and assemble peacefully, crucial for a thriving democratic society.

Yet, this right is not absolute. Article 19(2) permits the imposition of reasonable restrictions on the exercise of this freedom in the interest of public order, among other legitimate grounds. This sets the stage for a nuanced interplay between individual liberties and the state’s responsibility to maintain law and order.

The Right to Protest:

Protest is deeply ingrained in India’s socio-political fabric, serving as a vital tool for citizens to voice grievances, challenge injustices, and demand accountability from the government. From historic movements for independence to contemporary protests against social inequalities, the right to protest has been pivotal in shaping the nation’s democratic discourse.

Article 19 and Right to Protest

The right to protest peacefully is provided in the Indian Constitution. Article 19(1)(a) entitles the citizens to the freedom of speech and expression and Article 19(1)(b) gives the right to peacefully assemble without arms. However, Article 19(2) also imposes reasonable restrictions on this right to peacefully assemble or protest.

These reasonable restrictions can be imposed for the sovereignty and integrity of India, the security of the nation, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation, or incitement to an offense.

The Supreme Court, however, has also held in the case of Amit Sahni v. Commissioner of Police & Ors. that the right to protest, though a fundamental right, is not absolute.

Challenges and Controversies:

However, the exercise of the right to protest often faces challenges, especially concerning public order concerns. Instances of protests turning violent, disrupting essential services, or posing threats to public safety raise complex questions about where to draw the line between legitimate dissent and unlawful behavior.

In recent years, controversies surrounding protests, such as the Citizenship Amendment Act (CAA) protests or farmers’ agitation, have brought this issue to the forefront. The clash between protesters’ rights and the state’s efforts to maintain public order has sparked debates on the appropriate balance between freedom and security.

Legislative Provisions:

To maintain public order and prevent disruptions, various laws and regulations empower authorities to regulate the conduct of protests and demonstrations. The Code of Criminal Procedure (CrPC) provides provisions for the imposition of Section 144, which enables authorities to prohibit gatherings of four or more people in a particular area deemed to be prone to violence or public disturbance. Additionally, the police have powers under the Police Act to manage and control public assemblies to ensure public safety and order.

Judicial Interpretation:

The judiciary plays a crucial role in interpreting and safeguarding the right to protest while upholding the principles of public order and the rule of law. Over the years, the Indian courts have articulated nuanced principles to guide the regulation of protests. The Supreme Court, in landmark judgments such as Kedar Nath Singh v. State of Bihar and S. Rangarajan v. P. Jagjivan Ram, has affirmed the importance of peaceful assembly, the duty of the state to facilitate peaceful protests, and the permissible restrictions on the exercise of the right to protest in the interest of public order, morality, and the sovereignty and integrity of India.

Regulatory Framework:

To strike a balance between the right to protest and public order, the Indian government has enacted laws and regulations governing the conduct of protests and demonstrations. The police, as the primary law enforcement agency, are responsible for managing and regulating protests to prevent violence, maintain public order, and protect the rights of all citizens. However, concerns have been raised about the misuse of laws such as Section 144 of the Criminal Procedure Code to stifle legitimate dissent and curtail the right to protest.

Way Forward:

Balancing the right to protest with maintaining public order requires a multifaceted approach that upholds democratic principles while ensuring the safety and security of all citizens. It entails robust dialogue between the government, civil society, and protest organizers, proactive measures to address grievances, and transparent mechanisms for conflict resolution. Moreover, strengthening law enforcement capabilities, promoting civic education, and fostering a culture of tolerance and respect for dissent are essential to safeguarding democratic values and ensuring the peaceful exercise of the right to protest.

Right to protest Vs. Public Order

1. Right to Protest:

– Definition: The right to protest is a fundamental aspect of freedom of expression and assembly, allowing individuals to voice dissent, grievances, and opinions through peaceful demonstrations, rallies, or gatherings.

– Legal Basis: Enshrined in the Constitution or laws of democratic countries, including the Universal Declaration of Human Rights and various national constitutions.

– Purpose: To provide a mechanism for citizens to participate in the democratic process, hold governments accountable, advocate for change, and express solidarity with causes or issues.

– Protection: Protected as a fundamental right, often under provisions guaranteeing freedom of speech, expression, and assembly.

2. Public Order:

– Definition: Public order refers to the maintenance of peace, security, and stability within society, ensuring that the rights, safety, and well-being of all citizens are protected.

– Legal Basis: Governed by laws, regulations, and law enforcement measures aimed at preventing disorder, violence, or disruption to essential services.

– Purpose: To safeguard public safety, protect property, and uphold the rule of law, allowing communities to function harmoniously and individuals to exercise their rights without fear of harm or intimidation.

– Protection: Protected through the enactment and enforcement of laws related to public order, including measures such as curfews, restrictions on assembly, and law enforcement interventions when necessary.

Maintenance of law and order

  1. The Constitution of India: Guarantees the fundamental right to freedom of speech and expression, including the right to assemble peacefully and without arms (Article 19(1)(a)).
  2. The Indian Penal Code (IPC): Contains provisions relating to unlawful assembly (Section 141), rioting (Section 146), promoting enmity between different groups (Section 153A), and public nuisance (Section 268), among others.
  3. The Code of Criminal Procedure (CrPC): Empowers authorities to take measures to maintain public order, including issuing orders under Section 144 to prohibit gatherings of four or more people in a particular area.
  4. The Police Act: Provides guidelines for law enforcement agencies to manage and regulate protests while ensuring public safety and order.
  5. The Right to Information (RTI) Act: Allows citizens to seek information from public authorities, including details related to government policies, decisions, and actions that may be subject to protest.
  6. The Contempt of Courts Act: Prohibits actions that obstruct or interfere with the administration of justice, including acts of contempt that may arise during protests or demonstrations.
  7. The National Security Act (NSA): Allows preventive detention of individuals deemed to be a threat to national security, which may be invoked in situations of civil unrest or protests posing a threat to public order.

8. The Unlawful Activities (Prevention) Act (UAPA): Deals with the prevention of unlawful activities, including acts of terrorism, which may have implications for protests or demonstrations perceived as a threat to national security

 The Protest for Change

India has a long history of protests. As a colony of Britain for almost 200 years, protests were an indispensable part of our freedom struggle. The people of India fought against the colonial government, its policies, and laws by expressing their views publicly through ways like staging dharnas such as Mahatma Gandhi’s satyagraha and the consequent civil disobedience movement.

Thus, it is evident that protests were an integral part of the freedom struggle which in turn contributed to the political public sphere and the Constitution of India. Even after independence, there have been many protests such as the Chipko movement and the Narmada Bachao Andolan, where the public registered its dissent against the system and the government. Protests are considered the hallmark of a free and democratic society that demands that the voice of the people be heard by those in power and any decision should be taken after proper discussion. This article examines the legality of protests and whether the Right to Protest is a fundamental right.

Nirbhaya Case

On December 17, 2012, the country woke up to the news of a heinous crime, the gruesome gang rape of a woman in a moving bus on the roads of Delhi. The details of the horrific crime shook the conscience of the country and thousands of people came out on roads. Protests broke out across the capital city demanding justice for Nirbhaya (the victim was referred to by this name) and women’s safety.

Nirbhaya succumbed to her injuries on December 29, 2012, and the protests intensified. Around 4,000 people gathered at Jantar Mantar after her death and a protest march was organized across the capital city. The fake promises by the politicians were unable to placate the protestors.

One week after the crime, a committee was constituted to examine the criminal laws and recommend amendments for enhanced and effective punishments and quicker trials in cases of crimes against women.

On the recommendations of the committee, the Criminal Law (Amendment) Act, 2013 was enacted that amended the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and the Indian Evidence Act (IEA). Through the amendment, the definition of rape was widened, the definition of consent was provided, and the burden of proof in rape cases was shifted to the accused rather than the prosecution or the victim.

Further, it led to the creation of the Nirbhaya Fund in the 2013 annual budget, and Rs 1,000 crore was allocated for safety and security schemes for women and other women empowerment schemes.

Protests for Citizenship and the Role of Women

The Citizenship (Amendment) Act was tabled and eventually passed by both houses of parliament in December 2019. This led to nationwide protests against the Act as well as the proposal of the National Register of Citizens (NRC). The distinctive feature of these protests was that at every protest site, the flag bearers were women. Women have always been sidelined, but this time they were on the frontlines, demanding to be heard and demanding change. The protests began in Assam and then spread to other states including UP, Delhi, Meghalaya, etc. The primary demand of the protestors was the abrogation of the Act.

The Act was criticized on the grounds that it is discriminatory on the basis of religion and it primarily discriminates against the Muslim community. The other demand of the protestors was that the NRC should not be implemented nationwide as was implemented in Assam, which declared a large number of people foreigners. The primary concern of the protestors was that Indian Muslims along with poor Indians might be rendered stateless and could land in detention centers. The protesters also raised concerns against authoritarianism and the crackdown by police in universities including JMI, JNU, AMU, etc., to suppress protests.

Protest of ‘Annadata’

The farmer’s protests are ongoing protests by farmers against the three farm Acts which were recently passed by the Indian Parliament in September 2020. These three legislations have been branded as “anti-farmer” by various farmer unions and are considered to privatize the whole agricultural sector, thus leading to farmers living at the mercy of big corporates. However, the government still maintains that these Acts are beneficial for the farmers and would make the process of selling products directly to big buyers effortless. The government claims that the protestors are misinformed.

Immediately after the Acts were introduced, the protests began in Punjab. After two months of protests, the farmer unions initiated the ‘Dilli Chalo’ movement where a large number of farmers marched toward the capital city. On November 26, 2020, a nationwide strike was announced and according to reports, almost 250 million people took part in it. It is also estimated that about 2-3 lakh farmers are present at the Delhi borders. The government ordered the police personnel to use water cannons, batons, tear gas, etc., to prevent the farmers from entering Delhi from various borders. At present, almost 50 farmer unions have been protesting against the three Acts.

Case Laws

In the annals of Indian jurisprudence, the tension between the right to protest and the imperative of maintaining public order has been elucidated through landmark case laws, shaping the contours of democratic governance.

1. Ramlila Maidan Incident (2012):

In 2012, the Supreme Court delivered a significant judgment in the case of Balanarasimha Rao v. Union of India, concerning the right to peaceful protest and the state’s duty to maintain public order. The case stemmed from the crackdown on Baba Ramdev’s protest at Delhi’s Ramlila Maidan. The Court underscored the fundamental right to peaceful assembly and criticized the excessive use of force by authorities, emphasizing the need to balance public order concerns with democratic freedoms.

2. S. Rangarajan vs P. Jagjivan Ram (1989):

In the seminal judgment of S. Rangarajan v. P. Jagjivan Ram, the Supreme Court reiterated the paramount importance of freedom of speech and expression in a democratic society. The case arose from the banning of a film screening in Tamil Nadu on the grounds of potential public disorder. The Court held that the mere apprehension of public disorder cannot justify curbing free speech and that restrictions must be narrowly tailored to address specific threats to public order.

3. Mazdoor Kisan Shakti Sangathan v. Union of India (2018):

In Mazdoor Kisan Shakti Sangathan v. Union of India, the Supreme Court reaffirmed the right to peaceful protest as a cornerstone of democracy. The case involved restrictions imposed by the Rajasthan government on protests and assemblies near the state assembly. The Court emphasized that the state cannot unduly restrict the right to protest, noting that democracy thrives on dissent and public debate.

4. Kedar Nath Singh v. State of Bihar (1962):

In Kedar Nath Singh v. State of Bihar, the Supreme Court delineated the boundaries of free speech concerning sedition laws. The case highlighted the delicate balance between the right to dissent and the state’s duty to maintain public order. While affirming the constitutional validity of sedition laws, the Court emphasized that criticism of the government, however vehement, does not constitute sedition unless it incites violence or public disorder.

Conclusion:

In conclusion, Balancing the right to protest with maintaining public order is a constitutional imperative that requires a nuanced and delicate approach by both the government and citizens. While the Constitution guarantees the right to peaceful assembly as a fundamental right, it also imposes limitations to ensure public order, safety, and security. By upholding the principles of democracy, the rule of law, and respect for fundamental rights, India can navigate the complex interplay between the right to protest and the maintenance of public order, thereby fostering a society that values both dissent and harmony. Achieving a balance between the right to protest and maintaining public order requires a judicious approach from both the state and citizens. While the state has a legitimate interest in safeguarding public safety and preventing disruptions, it must also respect citizens’ constitutional rights and ensure that any restrictions on protests are proportionate and necessary.

Similarly, citizens engaging in protests have a responsibility to exercise their rights responsibly, respecting the rule of law and the rights of others. Peaceful and non-violent protests not only strengthen democracy but also command greater legitimacy and public support the right to protest and public order are not opposing principles but complementary aspects of a democratic society. While the Constitution guarantees the right to dissent, it also entrusts the state with the task of maintaining public order. By navigating this delicate balance with prudence and respect for constitutional values, India can uphold both individual freedoms and collective security, ensuring a vibrant and robust democracy for generations to come.

Also Read:
Shadwell vs Shadwell
How To Send A Legal Notice In India

Stare Decisis et Non Quieta Movere

Sarita Gupta
-
0
Stare Decisis et Non Quieta Movere

Stare Decisis et Non Quieta Movere

Literal Meaning

To stand by what has been decided and do not unsettle the established

Origin: Latin

Explanations

It is a significant aspect of the Indian legal system. We know that in India we follow a hierarchal structure of court, with the Supreme Court as an apex judicial authority, followed by the High Courts at each State and then other subordinate courts. The maxim implicates the binding decision of higher courts, which the lower courts have to adhere to. Thus, the decisions of Supreme Courts and High Courts are binding on the lower or sub-ordinate courts. This maxim is closely associated with the Doctrine of Precedent, which states that the court can rely on the decision of superior courts while deciding the matter with similar legal issues.

India has adopted this maxim due to colonial influence. This maxim has deep roots in the English Common Law System. It ensures stability, consistency, and predictability in judicial practice in the application of law.

Application of the Maxim

Binding- In common law parlance, lower courts are bound by the decisions of higher courts. For example, decisions made by the Supreme Court are binding on all subordinate courts.

Persuasive- Decisions from courts in other jurisdictions or lower courts within the same jurisdiction may be considered as guidance but are not binding.

Benefits of Stare Decisis et Non-Quieta Movere

  • Legal Certainty and Predictability- This legal maxim removes the element of uncertainty and promotes clarity in law and uniformity. The subordinate courts can adapt the decision of the higher court unanimously and without dissent, which brings a sense of certainty and predictability in the application of the law.
  • Judicial Efficiency- By the presence of precedent, the judges need not be re-litigated on the same matter, which saves the time and resources of the judiciary. It also prevents needless lawsuits.

Criticism of Stare Decisis et Non Quieta Movere

  • Rigidity- Strict adherence to stare decisis can lead to rigidity, making it difficult for the law to evolve and adapt to new societal values, technological advancements, and changing social norms.
  • Errors- Many times, judicial rulings that are perceived to be errors are upheld as precedent law.

Article 141 of the Indian Constitution promotes the concept of “Stare Decisis et Non Quieta Movere”, and states that “the law declared by the Supreme Court shall be binding on all courts within the territory of India.” Thus, the Indian Constitution expressly supports the idea of stare decisis. Though the principle of stare decisis is crucial in administering justice as it ensures certainty, predictability, flexibility, and stability in the application of law it should also recognize that at times, justice requires a departure from past decisions to adapt to changing societal norms, behavior, and attitudes.

Case Law

Keshavananda Bharti v State of Kerala (1973)

This case talks about the Parliamentary amending power. The Apex Court established the doctrine of basic structure, holding that while Parliament has wide powers to amend the Constitution, it cannot alter its basic structure. This case set a precedent that has been followed consistently, ensuring that the basic structure of the Constitution could not be abrogated.

Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005)

This Court held that a smaller bench of the Court is bound by the decisions of larger benches. Thus, this case emphasizes on hierarchical nature of precedent, ensuring that lower benches adhere to the rulings of larger or coordinated benches to maintain consistency in judicial decisions.

Indian courts have emphasized the importance of adhering to judicial precedents while also acknowledging the need for flexibility in certain circumstances.

Also Read: Animus Nocendi

Subhash Kumar vs State of Bihar and ORS

Shivani Singh
-
0

Subhash Kumar vs State of Bihar and ORS.
Equivalent Citation: 1991 AIR 420, 1991 SCR (1), 1991 SCC (1) 598, JT 1991 (1) 77,
1991 SCALE (1) 8
Bench: Singh, K. N. (J), Singh, K. N. (J), Ojha, N. D.
PETITIONER: SUBHASH KUMAR
RESPONDENT: STATE OF BIHAR AND ORS
DATE OF JUDGMENT: 09/01/1991

BRIEF

The Subhash Kumar vs State of Bihar case of 1991 involved the cancellation of mining
leases by the Bihar government without providing reasons or a fair hearing to the leaseholders. Subhash Kumar and others affected by the cancellations challenged the government’s actions in court. The Supreme Court ruled that the government’s arbitrary cancellation of the leases violated principles of natural justice and fairness. It emphasized that executive actions must adhere to constitutional principles and be subject to judicial review. This case established the importance of procedural fairness and reasonableness in executive decisions, reinforcing the rule of law and protection of citizens’ rights.

FACT

In the Subhash Kumar vs State of Bihar case of 1991, the Bihar government canceled
several mining leases without providing any reasons or giving the leaseholders an opportunity to be heard. This arbitrary action led to a legal challenge by Subhash Kumar and others affected by the cancellations. The case primarily revolved around the constitutional validity of the government’s actions and the extent of judicial review over executive decisions. The Supreme Court, in its judgment, ruled that the government’s arbitrary cancellation of mining leases violated the principles of natural justice and fairness, emphasizing the need for executive actions to be reasonable and justifiable.

ISSUES

The Subhash Kumar vs State of Bihar case of 1991 raised several important issues,
including:
1. Arbitrary Exercise of Executive Power: The primary issue was whether the Bihar
government’s cancellation of mining leases without providing reasons, or a fair hearing constituted an arbitrary exercise of executive power.
2. Violation of Natural Justice: The case questioned whether the government’s actions violated the principles of natural justice by failing to give affected parties an opportunity to be heard before canceling the leases.
3. Constitutional Validity: It examined the constitutional validity of the government’s actions considering fundamental rights guaranteed by the Indian Constitution, particularly the right to equality and the right to property.
4. Scope of Judicial Review: Another issue was the extent to which the judiciary could review executive decisions and intervene to protect citizens’ rights against arbitrary government actions.
5. Public Interest vs. Individual Rights: The case also touched upon the balance between the government’s authority to act in the public interest, such as regulating mining activities, and individuals’ rights to property and due process. Overall, the case delved into fundamental principles of governance, including the rule of law, fairness, and the limits of executive authority, with implications for administrative and constitutional law in India

JUDGEMENT

The Supreme Court, in its judgment, made the following key observations and
rulings:
1 Right to a Wholesome Environment: The Court held that the right to life under Article 21 includes the right to the enjoyment of pollution-free water and air for the full enjoyment of life. Any activity that pollutes the environment, thereby impairing the quality of life, would be deemed a violation of Article 21.
2 Public Interest Litigation (PIL): The Court recognized the importance of PILs in addressing environmental issues and emphasized that citizens have the right to approach the Court for redressal of grievances regarding environmental pollution.
3 Responsibility of Industries: The judgment underlined that industries have a duty to ensure that their activities do not degrade the environment. They must adopt measures to prevent environmental pollution and safeguard public health.
4 Role of the State: The Court also reiterated the responsibility of the state to take adequate steps to prevent environmental degradation and to ensure that industries comply with environmental laws and standards.

Implications

  • The judgment reinforced the concept of environmental rights as part of human rights,
    specifically linking environmental protection to the fundamental right to life.
  • It encouraged the use of PILs as a tool for environmental advocacy, allowing concerned
    citizens to bring environmental issues before the judiciary.
  • The ruling placed a greater onus on both the state and industries to uphold environmental standards and adopt sustainable practices to prevent pollution.

This case is often cited in subsequent environmental law cases and has had a lasting impact on the development of environmental jurisprudence in India. It established a critical precedent for recognizing environmental protection as intrinsic to the right to life, influencing policy-making and enforcement of environmental regulations.

ANALYSIS:

The Subhash Kumar vs State of Bihar and ORS case is a landmark judgment in Indian
environmental law. The Supreme Court of India ruled that the right to life under Article 21 of the Indian Constitution includes the right to enjoy pollution-free water and air. Here are the key points and implications of the judgment:

Key Points:

1 Right to a Wholesome Environment:
The Supreme Court affirmed that the right to life encompasses the right to a clean and healthy environment. Pollution that compromises water and air quality infringes on this fundamental right

2 Public Interest Litigation (PIL):
The Court recognized the validity of using PILs to address environmental issues, allowing any citizen to seek judicial intervention for the protection of public health and the environment.

3 Responsibilities of Corporations and the State:
The judgment emphasized that industries must prevent environmental pollution and that the state has a duty to enforce environmental laws and protect public health.

Implications

1 Expansion of Article 21:
The ruling broadened the scope of the right to life to include environmental protection,
setting a precedent for future environmental jurisprudence in India.
2 Empowerment through PILs:
It empowered citizens and NGOs to use PILs for environmental advocacy, facilitating
greater public participation in environmental governance.
3 Corporate Accountability:
The decision underscored the need for industries to adopt sustainable practices and
comply with environmental regulations to prevent pollution.
4 State Responsibility:
It reinforced the state’s obligation to take proactive measures to prevent environmental
degradation and ensure compliance with environmental laws.

Overall, the judgment in Subhash Kumar vs State of Bihar and ORS significantly strengthened environmental protection in India by linking it to the fundamental right to life, thus promoting a healthier environment for all citizens. The Subhash Kumar vs State of Bihar and ORS case is a landmark judgment in Indian environmental law. The Supreme Court of India ruled that the right to life under Article 21 of the Indian Constitution includes the right to enjoy pollution-free water and air.

Also Read:
Shadwell vs Shadwell
How To Send A Legal Notice In India

Freedom of speech and expression: Boundaries and Responsibilities

Shreya Sharma
-
0
Freedom of speech and expression: Boundaries and Responsibilities

Meaning Freedom of Speech and Expression

Freedom of speech and expression is a fundamental right that allows individuals to express their ideas, opinions, and beliefs without fear of government censorship or punishment. It encompasses various forms of communication, including speech, writing, art, music, and protest. This right is crucial for a healthy democracy as it enables open exchange of ideas, fosters public participation in government, and holds authorities accountable.
Here are some essential aspects of freedom of speech and expression:

  • It protects the right to express unpopular views, even if they are offensive to others.
  •  It does not guarantee freedom from criticism or consequence. Individuals can be held responsible for their speech if it incites violence or defamation.
  •  It allows for the free flow of information and ideas, which is vital for a well-informed citizenry.

Importance

Freedom of speech and expression is a cornerstone of a functioning democracy, and many countries enshrine it in their constitutions. Here’s why it’s so important:

  • Open Marketplace of Ideas: It allows for the free flow of information and ideas, which is crucial for a healthy democracy. People can challenge the status quo, propose new ideas, and hold those in power accountable. This exchange of ideas helps societies grow and improve

  • Political Participation: Citizens can express their views on government policies, criticize leaders, and advocate for change. This is essential for a government to be responsive to the needs of the people.

  • Individual Liberty: It protects the right of individuals to think and believe what they want, without fear of government censorship or reprisal. This is a fundamental human right

  • Truth-Seeking: When information can flow freely, it allows for the exposure of corruption, wrongdoing, and different perspectives. This can help societies find the truth on important issues.

However, it’s important to note that freedom of speech is not absolute. Most constitutions allow for reasonable restrictions on speech, such as laws against hate speech, incitement to violence, or defamation. This balancing act is necessary to protect other important rights, such as public safety and individual reputations.

Constitutional Validity

In India, the constitutional validity of freedom of speech and expression is enshrined in Article 19(1)(a) of the Constitution of India, which guarantees all citizens the right to “freedom of speech and expression.” However, this right is not absolute and is subject to certain reasonable restrictions outlined in Article 19(2).

 Article 19(1)(a) – Freedom of Speech and Expression

Article 19(1)(a)states: “All citizens shall have the right to freedom of speech and expression.”

This fundamental right allows individuals to express their opinions and ideas without fear of government censorship or retaliation. It covers a wide range of activities including spoken and written words, gestures, artistic expression, and more.

 Article 19(2) – Reasonable Restrictions

While Article 19(1)(a) guarantees the right to freedom of speech and expression, Article 19(2) provides the grounds on which this right can be reasonably restricted. These restrictions are meant to ensure that the exercise of this freedom does not harm public order, decency, morality, the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, or incite an offense.

Article 19(2)states: “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offense.”

Article 19(2) specifies the grounds on which the state can impose “reasonable restrictions” on this right. These grounds include:

1. Sovereignty and Integrity of India: To protect the unity and integrity of the nation.
2. Security of the State: To safeguard against threats to national security.
3. Friendly Relations with Foreign States: To maintain diplomatic relations.
4. Public Order: To prevent actions that could disrupt public peace.
5. Decency or Morality: To uphold societal moral standards.
6. Contempt of Court: To maintain the authority and dignity of the judiciary.
7. Defamation: To protect individuals’ reputations.
8. Incitement to an Offense: To prevent speech that incites illegal activities.

 Balance Between Rights and Restrictions

The principle of “reasonable restrictions” is fundamental to understanding the balance between individual rights and societal interests. The judiciary has consistently held that restrictions must not be arbitrary or excessive and should have a direct and immediate connection to the interests sought to be protected.

 Reasonableness Test

The reasonableness of restrictions is assessed through various factors, including:
– The nature of the right infringed.
– The purpose of the restriction.
– The extent and scope of the restriction.
– The duration of the restriction.
– The availability of less restrictive alternatives.

 Contemporary Issues and Challenges

With the rise of digital media, the scope and application of freedom of speech and expression have expanded, presenting new challenges:
– Social Media Regulation: The regulation of content on social media platforms involves balancing freedom of expression with the need to curb misinformation, hate speech, and other harmful content.
– Censorship and Banning of Content: The government’s power to ban books, films, and other media has been frequently challenged, requiring the courts to balance artistic freedom with societal interests.
– Surveillance and Privacy: The state’s surveillance measures, often justified on grounds of national security, must be balanced against individuals’ rights to privacy and free expression.

Judicial Interpretation

The Indian judiciary has played a pivotal role in interpreting the scope and limitations of the freedom of speech and expression. The Supreme Court of India has delivered several landmark judgments to balance individual freedoms with societal interests:

1. Romesh Thappar v. State of Madras (1950):

In this case, the Supreme Court struck down a law that imposed a ban on the entry and circulation of a publication. The Court held that freedom of speech and expression is essential for the proper functioning of a democracy and any restriction must meet the criteria of reasonableness

2. Brij Bhushan v. State of Delhi (1950):

This case involved a challenge to a law that allowed the government to impose pre-publication censorship. The Supreme Court ruled that prior restraint on publication is generally unconstitutional, reinforcing the principle that freedom of the press is a key aspect of freedom of speech and expression.

3. S. Rangarajan v. P. Jagjivan Ram (1989):

The Supreme Court emphasized that restrictions on freedom of speech must have a direct and proximate nexus with the grounds specified in Article 19(2). The case involved the banning of a film on the grounds that it could incite violence. The Court held that mere apprehension of danger is not sufficient to restrict speech; there must be a clear and present danger

4. Shreya Singhal v. Union of India (2015):

In one of the most significant recent cases, the Supreme Court struck down Section 66A of the Information Technology Act, of 2000. This provision criminalized the transmission of offensive messages through communication services. The Court found it to be vague, overly broad, and violative of Article 19(1)(a). This judgment underscored the importance of clarity and precision in laws that restrict freedom of speech.

Conclusion

The constitutional validity of freedom of speech and expression in India is well-established, but it is balanced with reasonable restrictions to ensure it does not infringe upon other significant interests. The dynamic interpretation by the judiciary ensures that the right evolves with changing societal norms and technological advancements, maintaining the essence of democratic freedoms while addressing contemporary challenges.

The constitutional validity of freedom of speech and expression in India is firmly rooted in Article 19(1)(a), with Article 19(2) providing the framework for permissible restrictions. The Indian judiciary continues to play a vital role in interpreting these provisions, ensuring that the balance between individual freedoms and societal interests is maintained in line with democratic principles. The evolving nature of technology and society means this area of law will continue to develop, requiring ongoing judicial and legislative scrutiny.

Also read:

Rights of undertrial prisoners in India
How To Send A Legal Notice In India

Emergency Provision in the Indian constitution: Safeguard and controversies

Dimple Kanojiya
-
0
Emergency Provision in the Indian constitution: Safeguard and controversies

Introduction

The emergency provisions in the Indian Constitution are a powerful set of mechanisms designed to ensure the nation’s stability and security during extraordinary circumstances. These provisions, detailed in Part XVIII (Articles 352-360), empower the central government to act decisively in times of crisis, such as war, external aggression, armed rebellion, financial instability, or a failure of constitutional machinery in a state. While crucial for maintaining order, these provisions have been subject to significant debate due to their potential for misuse. This article explores the detailed framework of these emergency provisions, the safeguards built into the Constitution to prevent abuse, and the controversies that have arisen from their application.

Types of Emergencies

National Emergency (Article 352)

A National Emergency is a significant measure designed to protect India during severe threats. It can be declared by the President of India based on the written recommendation of the Cabinet in situations of war, external aggression, or armed rebellion. Initially valid for one month, the proclamation must be approved by both Houses of Parliament to continue. It can be extended indefinitely with Parliamentary approval every six months. During a National Emergency, the central government assumes extensive powers, the federal structure is temporarily altered, and certain fundamental rights (excluding Articles 20 and 21) may be suspended.

  • Conditions: Can be declared on grounds of war, external aggression, or armed rebellion.
  • Procedure: Requires the President to proclaim an emergency based on the written recommendation of the Cabinet.
  • Duration and Approval: Initially valid for one month, it must be approved by both Houses of Parliament to continue. It can be extended indefinitely with Parliamentary approval every six months.
  • Effects: The central government assumes sweeping powers, the federal structure is temporarily altered, and certain fundamental rights (excluding Articles 20 and 21) may be suspended.

President’s Rule (Article 356)

President’s Rule addresses situations where there is a failure of constitutional machinery in a state. The President can proclaim this emergency based on a report from the Governor of the state or otherwise. Initially valid for six months, it can be extended up to three years with Parliamentary approval every six months. Under the President’s Rule, the President assumes the functions of the state government, and the state legislature is either dissolved or suspended.

  • Conditions: Invoked when there is a failure of the constitutional machinery in a state.
  • Procedure: Proclaimed by the President upon receipt of a report from the Governor of the state or otherwise.
  • Duration and Approval: Initially valid for six months, it can be extended for up to three years with Parliamentary approval every six months.
  • Effects: The President assumes the functions of the state government, and the state legislature is either dissolved or suspended.

Financial Emergency (Article 360)

A Financial Emergency can be declared by the President if there is a threat to the financial stability or credit of India or any part thereof. This proclamation remains in force indefinitely until revoked by the President and requires repeated approval from Parliament every two months. During a Financial Emergency, the central government can direct the reduction of salaries and allowances of all government officials and require all financial and money bills passed by state legislatures to be approved by the President.

  • Conditions: Proclaimed if the President believes that the financial stability or credit of India or any part thereof is threatened.
  • Procedure: Proclaimed by the President.
  • Duration and Approval: Remain in force indefinitely until revoked by the President, with repeated approval required from Parliament every two months.
  • Effects: The central government can direct the reduction of salaries and allowances of all government officials and requires all financial and money bills passed by state legislatures to be approved by the President.

Effects of Emergency Provisions

Suspension of Fundamental Rights

Fundamental rights, especially those under Articles 19 (freedom of speech and expression) and 21 (protection of life and personal liberty), can be suspended. The infamous 1975-77 Emergency saw widespread curtailment of civil liberties, including censorship of the press and the detention of political opponents without trial. The power of judicial review can be suspended, limiting the judiciary’s ability to intervene and protect individual rights during an emergency

During a National Emergency in India, the fundamental rights guaranteed under Article 19, such as freedom of speech and expression, assembly, and movement, can be suspended. This is authorized under Articles 358 and 359 of the Constitution. Article 358 allows the automatic suspension of Article 19 rights during an Emergency declared on grounds of war or external aggression, while Article 359 enables the President to suspend the right to seek judicial enforcement of other fundamental rights, excluding Articles 20 and 21. These suspensions are intended to empower the government to act decisively in times of crisis but have been controversial, especially given the historical misuse during the 1975-77 Emergency, leading to significant restrictions on civil liberties.

Impact on Democratic Processes

  • Elections and Political Activity: During an emergency, elections can be postponed, and political activities can be restricted. The 1975-77 Emergency saw the suspension of general elections and the curtailment of opposition activities, which undermined democratic processes and institutions.
  • Governance and Administration: The executive branch gains extraordinary powers to implement policies and maintain order, often at the cost of transparency and accountability.

Economic Consequences

Financial Emergency would grant the central government the power to reduce salaries and allowances of all government officials, including those at the state level, and require all financial and money bills passed by state legislatures to be approved by the President. This could centralize financial control and impact economic stability and governance at the state level.

Safeguards

Parliamentary Oversight

  • Approval and Extension: Any emergency proclamation must be approved by both Houses of Parliament within one month. Subsequent extensions require parliamentary approval every six months, ensuring periodic review and accountability.
  • Revocation: The Lok Sabha can revoke a National Emergency by passing a resolution, providing a democratic check on executive power.

Judicial Review

  • Supreme Court and High Courts: These courts have the power to review the validity of an emergency proclamation. In the landmark case of
    Minerva Mills Ltd. v. Union of India (1980)
  • Facts: This case challenged the constitutionality of certain amendments made during the Emergency period.
  • Issue: Whether the amendments to the Constitution that curtailed judicial review and expanded the scope of emergency powers were valid.
  • Judgment: The Supreme Court reaffirmed the basic structure doctrine established in Kesavananda Bharati and held that amendments that destroy or damage the basic structure of the Constitution are invalid.
  • Significance: This case reinforced judicial review as part of the basic structure, ensuring that the proclamation of emergency and actions taken under it could be reviewed by the courts the Supreme Court reaffirmed that the proclamation of emergency is subject to judicial review.

Cabinet’s Written Recommendation

The Indian Constitution contains detailed provisions to handle emergencies, recognizing the necessity for the government to act swiftly and decisively in times of national crisis. Among the safeguards to prevent the misuse of these powers, the requirement for the Cabinet’s written recommendation stands as a crucial mechanism, particularly concerning the declaration of a National Emergency under Article 352. This requirement ensures a collective decision-making process, providing a vital check on executive power.

The Role of the Cabinet’s Written Recommendation

Constitutional Requirement:
  • Article 352 stipulates that a National Emergency can only be declared by the President based on a written recommendation from the Cabinet. This provision was reinforced by the 44th Amendment Act of 1978, which aimed to curb the potential for arbitrary use of emergency powers.
  • The term “Cabinet” here specifically refers to the Council of Ministers headed by the Prime Minister, ensuring that such a significant decision is made collectively rather than unilaterally
  •  Requires a written recommendation from the Cabinet, ensuring a collective decision rather than a unilateral presidential proclamation.

Process and Significance:

Collective Decision-Making: The requirement ensures that the decision to proclaim a National Emergency is taken after careful deliberation by the entire Cabinet, reflecting a consensus among the highest executive officials.

Accountability: A written recommendation holds the Cabinet collectively accountable for the decision, making it harder for any single individual to impose an emergency based on personal motives.

Transparency: This process promotes transparency within the executive branch, as the decision must be formally documented and based on concrete evidence and reasoning

44th Amendment Act (1978)

Pranab Mukherjee on the need for constitutional safeguards:

“The 44th Amendment was crucial in ensuring that such an assault on democracy, as witnessed during the Emergency, could never be repeated.”

  • Protects Fundamental Rights: Articles 20 and 21 cannot be suspended even during a national emergency.
  • Stricter Conditions: Made the proclamation and continuation of a national emergency more stringent.
  • Context: This amendment was enacted in response to the abuses during the 1975-77 Emergency.
  • Provisions: It introduced safeguards against the misuse of emergency provisions, including:
    • Making the proclamation of emergency more stringent.
    • Ensuring that the proclamation must be approved by the Cabinet in writing.
    • Requiring that any extension beyond six months must be approved by Parliament every six months.
    • Protecting the rights under Articles 20 and 21 from suspension during an emergency.
  • Significance: The amendment strengthened the constitutional safeguards to prevent the misuse of emergency powers in the future.

Historical Instances and Controversies

1975-77 National Emergency

“I had to act because there was disorder, chaos, and disruption. The normal functioning of the government and the judiciary was paralyzed”- Indira Gandhi on the 1975 Emergency

Indira Nehru Gandhi v. Raj Narain (1975)
  • Facts: Indira Gandhi’s election was declared void by the Allahabad High Court on charges of electoral malpractice. During the emergency, the government amended the Constitution to immunize the Prime Minister’s election from judicial review.
  • Issue: The validity of the amendment and the imposition of emergency itself were in question.
  • Judgment: The Supreme Court upheld the election laws’ amendment but stated that such changes should not alter the democratic fabric of the Constitution.
  • Significance: This case illustrated the tensions between constitutional amendments made during an emergency and the principles of democratic governance.
  • Background: Declared by Prime Minister Indira Gandhi on grounds of internal disturbance, it lasted for 21 months.
  • Abuse of Power: Widely criticized for suppressing political dissent, curbing press freedom, and detaining political opponents without trial. This period highlighted the potential for abuse of emergency provisions to stifle democracy and civil liberties

Judicial Response:

ADM Jabalpur v. Shivkant Shukla (1976)

Justice H.R. Khanna (dissenting opinion in ADM Jabalpur v. Shivkant Shukla, 1976):

“What is at stake is the rule of law. The question is whether the law speaking through the authority of the courts shall be absolutely silenced and rendered mute.”

  • Facts: The case Known as the Habeas Corpus case, arose during the 1975-77 Emergency declared by Prime Minister Indira Gandhi.
  • Issue: The main issue was whether the right to move the courts for enforcement of fundamental rights could be suspended during an emergency.
  • Judgment: The Supreme Court, by a majority, held that during an emergency, the right to seek judicial remedy for enforcement of fundamental rights (including habeas corpus) stands suspended case, also known as the Habeas Corpus case, saw the Supreme Court controversially upholding the suspension of fundamental rights during the emergency.
  • Significance: This controversial judgment was widely criticized for undermining civil liberties. It was effectively overturned by the 44th Amendment Act, 1978, which ensured that Articles 20 and 21 (protection in respect of conviction for offenses and protection of life and personal liberty) cannot be suspended even during an emergency.

Frequent Use of President’s Rule

  • Misuse: Often criticized for being used by central governments to dismiss state governments led by opposition parties.
  • Judicial Intervention:
  • S.R. Bommai v. Union of India (1994)
  • Facts: The case arose from the dismissal of several state governments under Article 356, which allows for President’s Rule in states.
  • Issue: The issue was the scope of judicial review over the President’s proclamation of emergency and the use of Article 356.
  • Judgment: The Supreme Court held that the President’s proclamation under Article 356 is subject to judicial review. It also laid down guidelines for the imposition of the President’s Rule to prevent its misuse case established that the imposition of the President’s Rule is subject to judicial review, and the Court can reinstate the dismissed state government if found to be done arbitrarily.
  • Significance: The judgment was a significant check on the arbitrary use of emergency powers and reinforced federalism by protecting state governments from undue dismissal.

Lack of Safeguards for Financial Emergency

  • Concerns: Although a Financial Emergency has never been declared, the extensive control it grants the central government over state finances raises concerns about its potential for abuse and the impact on state autonomy

Conclusion

The emergency provisions in the Indian Constitution are vital for managing extraordinary situations and maintaining national stability. However, their invocation has significant effects, including the centralization of power, suspension of fundamental rights, and impact on democratic processes. The historical misuse of these provisions, particularly during the 1975-77 Emergency, underscores the importance of robust safeguards to prevent abuse. The judiciary’s role in upholding constitutional principles and the amendments aimed at enhancing these safeguards are crucial in balancing the need for emergency powers with the protection of democracy and civil liberties. Ensuring these provisions are used judiciously remains a critical challenge for India’s governance framework. The ongoing challenge lies in ensuring these provisions are used judiciously, maintaining a balance between national security and individual freedoms

“The resilience of a democracy is tested not by the calm of normalcy but by the storms of emergency. India’s past reminds us that the true strength of a nation lies in safeguarding freedoms even when facing the fiercest gales”.

Also Read: 
Rights of undertrial prisoners in India
How To Send A Legal Notice In India

1...495051...69Page 50 of 69

TESTIMONIALS

LawArticle review

Contact us: info@lawarticle.in

FOLLOW US

© 2016-2025 eduLex Solutions | All Rights Reserved