Nature Of The Indian Constitution: Judicial Exposition:Constitution of India is not an end but a means to an end, not mere democracy

Privilege Against Self - Incrimination:

The main provision regarding crime investigation and trial in the
Indian Constitution...

Rule of law:

For a purposeful rule of law to exist in a society, democracy is
required and for a democratic state the prevalence of rule of . ...
Doctrine of Pleasure:

Effective and efficient governance is the expectation of every
civilized society. This role is performed..

Cooperative Federalsim In India:

Historical roots of cooperative federalism to the Mughal Period and
goes on to give a panoramic coverage of its dynamic functioning in the
Indian Democracy from the 1950s...
Scheduled Castes and Tribes Act:

The cure is part of the cause in this case; as members of the
Scheduled Castes and Scheduled Tribes (SC/STs),....
http://www.legalserviceindia.com/article/l440-Scheduled-Castes-and-Tribes-Act-.html

Genocide Under International Criminal Law:

Genocide is not a wild beast or a natural disaster. It is mass murder
deliberately planned and carried out by individuals.....
Decriminalization of consensual sex between adults: The Delhi High
Court dismissed the Petition in 2004 holding that the......
Role Of Writs In The Administrative Law: Administrative law has
greatly demarcated the checks, balances and permissible area of an
exercise of power, authority and jurisdiction ....
Right To Die: Constitution is a social document. It is the society in
its political aspect. We can't understand its nature ......
Article 20 (3) Of Constitution of India And Narco Analysis: In any
criminal investigation, interrogation of the suspects....
Article 21 and Constitutional validity of Right to Die: The
Constitution of India provides a long list of fundamental rights....
Reservation Policy: The motive of having reservation then was the
eagerness to modernize through the promotion of education and industry
and maintaining unity among themselves...
Domestic Violence Act - Fundamental rights: Domestic violence is sadly
a reality in Indian society, a truism. In the Indian patriarchal
setup, it became an acceptable practice to abuse women....
Victory for Gay Rights in India: In a landmark ruling that could usher
in an era of greater freedom for gay men and lesbians in India,...
Amicus Curiae: An Amicus curiae is a friend of the court and are
generally those persons who represent the unbiased will and opinion of
the society....
Article 12: The article deals with scope of Article 12 of the
Constitution and how it is changing with innovative decisions ...
Hung Parliament: The oxford dictionary defines Hung Parliament as
parliament in which no party has clear majority....
Article 370: Article 370 of the Indian Constitution - special status
to the State of Jammu and Kashmir- long & significant background.
Treaty of Amritsar ; Quit Kashmir Movement....
h Constitutional Background: The constitution was passed by the
Constituent Assembly on 26 Nov 1949 and is fully applicable since 26
Jan 1950...
Making Of The Constitution: The Constituent Assembly which had been
elected for undivided India and held its first sitting on 9th Dec.
1946, re-assembled on the 14th August 1947...
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India
into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure
to all its citizens...
Fundamental Rights: Fundamental Rights, are more elaborate than those
of any other existing written Constitutions of the World...
Fundamental Duties: A countervailing factor has been introduced by the
42nd amendment Act of 1976, known as the Fundamental Duties...
Directive Principles: These Principles are in the nature of
instruments of instruction to the govt...
Parliament: The Parliament of India consist of The President and two
houses....first function of The Parliament is that of providing the
Cabinet and holding them responsible...
Political Parties: General elections in May 1996 made the Bharatiya
Janata Party (BJP) the biggest party capturing 161 seats along with...
A Complete Summary Review: A complete review of the entire
Constitution Has been given article wise...
Article 21 Of The Constitution: Indian democracy wedded to rule of law
aims not only to protect fundamental rights of its citizens but also


Constitution Discussion Forum

Articles:

(*) Uniform Civil Code
(*) Principles of Jermy Bentham and S.C of India
(*) Repeal Of POTA - Justified
(*) Politics Of Constitutional Amendments In India

Latest Additions

Public Interest Litigation:

It is an attempt to analyse the dangerous tendency to convert public
interest litigation in to a private or political interest....
Office Of Profit:

Article 102(1)(a) of the Constitution of India makes the holding of
an office of profit by a member of Parliament a ground for....
Rule of Law in India & UK:

Rule of law is the supreme manifestation of human civilization and
culture and is a new ‘lingua franca’....
Is a phrase which has been evolved from a Latin maxim, which stand
for ....
Litigation & Delays in India:

The word ‘Litigation’ in common parlance is used to refer to a
controversy before a law court or simply put a ‘lawsuit’...
Freedom of Press: A Free press stands as one of the great interpreters
between the Government and the people. To allow it to be fettered..
Prosecution of Public Servants: This article deals with the much
disputed area of law, wherein the question relates to the
appropriate.....
  Judicial Accountability & Separation Of Power: Judiciary Unlimited -
an unelected judiciary which is not accountable to anyone except its
own temperament has taken over significant powers....
Article 370: Article-370 was created with a view that its existence
would be temporary. ...
Doctrine of pleasure and its proviso article 311 of Indian
Constitution: How these articles regulates the functioning of
government servants and what are the remedies available to
government..

Preamble- A Key To Open The Minds Of The Framers Of The Constitution:
The Preamble to a Constitution embodies the fundamental values and the
philosophy, on which the Constitution is based,
Supreme Court the Final Pedestal of Justice: A law may be defined as
an assemblage of signs, declarative of a volition, conceived or
adopted by the sovereign in a stage...

Doctrine Of Basic Structure (Constitutional Law): It is very difficult
to state a single and accurate definition of the term ?law? as it is a
general term and has different connotations for different people.....

consequences.....
Writ Of Habeas Corpus For Securing Liberty: The concept of writ
essentially originated in England & to issue appropriate writ.....
Nature Of The Indian Constitution: Judicial Exposition: The
Constitution of India is not an end but a means to an end, not mere
democracy...
Doctrine Of Constitutional Tort: Under the English Common Law the
maxim was "The King can do no wrong" and therefore, the King was not
liable for
Right to die- " To be or not to be?": The care of human life and
happiness and not their destruction is the first and only legitimate
object
Sustainable Development and Indian Judiciary:

Right to wholesome environment is a fundamental right protected under
Article 21 of the Constitution
Austianinan Concept Of Sovereignty: Austin places the notion of
sovereignty at the basis of his theory of law. Austin borrowed from

Legality Of Foreign Judgments: The article/paper aims to study the
binding nature of the foreign judgments i.e. judgments...
Constitutional Position of Jammu and Kashmir: Under Part XXI of the
Constitution of India, which deals with Temporary, Transitionalr ..
Supreme Court is the final Pedestal for justice: the supreme is the
final and the highest authority for which a person ca go..


The Constitution of India is the supreme law of the land, which is
fundamental in the governance of India. The Constitution of India was
enacted on 26th November, 1949 and was adopted on 26th January, 1950.
The Draftsmen of the Indian Constitution took inspiration from
Constitutions all over the world and incorporated their attributes
into the Indian Constitution. For example Part III on Fundamental
Rights is partly derived from the American Constitution and Part 1V on
Directive Principles of State Policy from the Irish Constitution.

A Constitution should be a dynamic document. It should be able to
adapt itself to the changing needs of the society. Sometimes under the
impact of new powerful social and economic forces, the pattern of
government will require major changes. Keeping this factor in mind the
Draftsmen of the Indian Constitution incorporated Article 368 in the
Constitution which dealt with the procedure of amendment. Due to
Article 368 the Indian Constitution can neither be called rigid nor
flexible but in fact it is partly rigid and partly flexible. Articles
of the Indian Constitution can be amended by a simple majority in the
Parliament (Second Schedule, Article 100(3), 105, 11, 124, 135, 81,
137), or by special majority that is majority of the total membership
of each house and by majority of not less than two thirds of the
members of each house present and voting , or by Ratification by the
State Legislatures after special majority (Article 57, 73, 162,
Chapter 1V of Part V, Chapter V of P!
art V1, Seventh Schedule, representation of the State in Parliament
and provisions dealing with amendment of the Constitution).

During the 50 years of the Constitution, more than 80 amendments have
taken place. The founding fathers of the Indian constitution who
granted more rights to the people without balancing them with their
duties, perhaps did not foresee the emergence of present political
environment, wherein the political players of various segments in the
country are more interested in fulfilling their individual aspirations
than the aspirations of the people. There is an element of truth in
this
criticism. The fact is that the ease in the amending process of the
Indian Constitution is due to the one party dominance both at the
Centre and the State .Yet, on close examination it will be seen that
there were compelling circumstances which led to the constitutional
amendments. While some amendments were a natural product of the
eventual evolution of the new political system established under the
Constitution in 1950, there were others necessitated by practical
difficulties. The first amendment! took place in June, 1950.

The question whether Fundamental Rights can be amended under Article
368 came for consideration of the Supreme Court in Shankari Prasad v.
Union of India . It challenged the validity of the 1st amendent to the
Constitution. In this case it was held that a constitution amendment
will also be held valid even it abridges or takes away any of the
fundamental rights. A similar decision was given my the honble Supreme
Court in Sajjan Singh v. State of Rajasthan which challenged the
validity of the 17th amendent. In Golaknath v. State of Punjab , the
validity of the Constitution (17th Amendment) Act, 1964 was again
challenged, which inserted certain State Acts in Ninth Schedule. The
Supreme Court in its landmark decision overruled the decision given in
the Shankari Prasads and Sajjan Singhs case. It held that the
Parliament had no power from the date of this decision to amend Part
III of the Constitution so as to take away or abridge the Fundamental
rights. Eleven judges participated in this decision with the ratio
being 6 : 5. The judges were worried about the numerous amendments
made to abridge the fundamental rights since 1950. It apprehended that
if the courts were to hold that the Parliament had power to take away
fundamental rights, a time might come when these rights are completely
eroded. The Chief Justice applied the doctrine of Prospective
Overruling and held that this decision will have only prospective
operation and, therefore, the 1st, 4th and 17th amendment will conti!
nue to be valid.

It means that all cases decided before the Golaknaths case shall
remain valid. In order to remove difficulties created by Golaknaths
decision parliament enacted the 24th Amendment.

The amendment has made the following amendments :

(1) it added a new clause (4) to Article 13 which provides that
nothing in this Article shall apply to any amendment of this
constitution made under Article 368 .

(2) it submitted a new heading to Article 368 power of Parliament to
amend the Constitution and Procedure therefore. Instead of Procedure
for amendment of the Constitution.

(3) It inserted a new sub section (1) in Article 368 which provides
that notwithstanding anything in the Constitution, Parliament may, in
exercise of its constituent power may amend by way of addition,
variation, or repeal any provision of this Constitution in accordance
with the procedure laid down in the Article. Thus the 24th amendment
restored the amending power of the Parliament. The validity of the
24th amendment was challenged in the case of Keshavnand Bharati v.
State of Kerala . It challenged the validity of the Kerala Reforms
Act, 1963. but during the pendency of the petition the Kerala Act was
placed in the Ninth Schedule by the 29th Amendment. The question
involved was the extent of the amending power conferred by Article 368
of the Constitution. A Special bench of 13 judges was constituted to
hear the case. The Court by majority overruled the Golaknaths case
which denied Parliament the power to amend fundamental rights of
citizens. It held that the 24th amendment merely made explicit which
was implicit in the unamended Article 368. The Court held that under
the Article 368 Parliament is not empowered to amend the basic
structure or framework of the Constitution. After the decisions of the
Supreme Court in Keshavnand Bharati and Indira Gandhi cases the
Constitution (42nd Amendment) Act, 1976, was passed which added two
new clauses , namely, clauses (4) provided that no constitutional
amendment (including the provision of Part III) or purporting to have
been made under Article 368 whether before or after the commencement
of the Constitution (42nd Amendment) Act, 1976 shall be called in any
court on any ground. Clause (5) removed any doubts about the scope of
the amending power. It declared that there shall be no limitation
whatever on the constituent power of Parliament to amend by way of
addition ,variation or repeal of the provisions of the Constitution
under this Article. Thus by inserting this clause it was made clear
that the basic structure of the Constitution could be amended. In
Minerva Mills v. Union of India the Supreme Court by 4 to 1 majority
struck down clauses (4) and (5) of Article 368 inserted by the 42nd
amendment, on the ground that these clauses destroyed the essential
feature of the basic structure of the Constitution. Since these
clauses removed all limitations on the amending power and thereby!
conferred an unlimited amending power, it was destructive of the basic
structure of the Constitution. The judgment of the Supreme Court thus
makes it clear that the Constitution not the Parliament is supreme in
India. The Parliament owes its existence to the Constitution and it
cannot take priority over the Constitution. Therefore this landmark
decision ended the long controversy between the Courts and the
Executive.

The amendment process was incorporated in the Constitution by the
Draftsmen of the Constitution to help India adapt itself to the
changing circumstances. Society is never stagnant. It is ever-
changing. Therefore the amending procedure was made partly flexible so
as to make it easy for the Legislature. But the Parliament started
thinking that it has unlimited amending power. It assumed itself to be
the supreme law when the Constitution is the supreme law of the land.
The Parliament started making amendments which were destroying the
basic structure of the Indian Constitution. But after the landmark
decisions of Keshavnand Bharati and Minerva Mills the Court by its
power of judicial review has curtailed the amending power of the
Parliament. The amendments made by the Parliament can no more affect
the basic structure of the Constitution. But, looking at the ease with
amendments can take place depending on the whims and fancies of the
ruling government and the POLITICS IN THE POLITICS OF INDIA we cannot
say how long the rights of the citizens are safe and unobstructed.

On 26 March 2002, the controversial anti-terror law, the Prevention of
Terrorism Act (POTA) was passed with 425 votes for the Act and 296
against, after a 10-hour debate in the parliament. The intensity of
the effects of the bill could be seen very clearly by the rejection of
the bill by the upper house of the Indian Parliament leading to a
Joint Session of Parliament, a measure that had taken place only the
third time in the past. The Indian Ministry of Home Affairs justified
the initial Ordinance after the September 11,2001 terror attacks by
claiming an upsurge of terrorist activities, intensification of cross
border terrorism, and insurgent groups in different parts of the
country, despite the fact that the state of Jammu and Kashmir
witnessed a decrease in the terrorist incidents taking place in that
state.

POTA, though now has been repealed, lives as an example showing the
bold step taken by India in its fight against terrorism. The POTA had
during its days and even after its downfall, has made India a silent
spectator to serous ongoing debates between political parties, the
media, social activists and NGOs on certain provisions seen to be
draconian, within POTA.

Two years from the enactment of the POTA, a number of issues as to the
possibilities of misuse of the provisions of the anti terror law
including the targeting of minorities and using it against political
opponents had arisen. In Gujarat, all except one of the POTA detainees
are from the Muslim minority and in Tamil Nadu and UP too the
ostensible anti-terror law has been abused to book, without lucidity
and accountability, political opponents and underprivileged
communities respectively.

A decade long experience with a previous national anti-terror law, the
infamous Terrorist and Disruptive Activities Prevention (TADA) that
was in force between 1985-1995 gives legitimacy to the fear that the
misuse of such laws evoke among human rights activists, political
dissenters and minorities. Under the TADA, the conviction rate was
less than 1%, despite the fact that the confessions made to the
police, even though being given under torture, were admissible as
evidence.

The developments after the enactment of the POTA, including the
responses received by the POTA review committee show that the POTA is
worse then TADA. POTA provides for criminal liability for mere
association or communication with suspected terrorists without the
possession of criminal intent (Section 3(5) of the POTA). Section 4 of
POTA is similar to Section 5 of TADA in laying out a legal presumption
that if a person is found in unauthorized possession of arms in a
notified area, he/she is automatically linked with terrorist activity.
Section 48(2) provides for the option of pre-trial police detention
for up to 180 days. As under the TADA, where 98% of the cases never
reached the trial stage, this Section 48(2) could also be misused by
the police by keeping an accused for long periods of detention without
charge or trial. Special courts for trials are established under POTA
which are given the discretion to hold trials in non-public places,
like prisons, and to withhold ! trial records from public scrutiny,
thus preventing the independent monitoring of special court sessions.
Section 32 provides that confessions made to police officers are to be
admissible in trial, which has increased the possibility of coercion
and torture in securing confessions.

The provisions contained under the POTA were mostly contained in
existing laws, except those, which were contained in the Criminal
Procedure Code, the Indian Penal Code, the Evidence Act or the
Constitution of India. The Act effectively undermines the fundamental
tenet of the criminal justice system by putting the burden of proof on
the accused. But the Act also had some provisions, which were not
attacked for being against human rights. These provisions stated that
Confessions must be recorded within 48 hours before a magistrate, who
will send the accused for a medical examination if there is a
complaint of torture. Further a legal representative of the accused
can be present for part of the interrogation. Moreover police officers
can be prosecuted for abusing their authority. The POTA also provided
that victims could be paid compensation.

But these provisions could not act as an effective shield to protect
the Act from the criticism it received for its other provisions
abusing human rights. Those opposed to POTA had argued that existing
laws were sufficient to deal with terrorism. Within a year POTA had
already built up a dubious record and in some states it was already
dreaded as its predecessor. State governments, including opposition-
ruled ones, had not hesitated to use POTA to fix political opponents.

At the Peoples Tribunal on POTA and Other Security Legislation at the
Press Club in New Delhi on July 16,2004 a 629-page report based on
depositions made before the Tribunal by victims and their families
from ten states in India, as well as expert depositions by lawyers and
activists, showed that such security legislations grant sweeping
powers to authorities, which has led to misuse of these powers and
severe restriction of basic rights. At the same time, such
legislations do not address the political, social and economic roots
of the problem.

The tribunal concluded that the review of victim and expert testimony
showed that the misuse of the Act is inseparable from its normal use.
The tribunal stated that the statute meant to terrorise not so much
the terrorists as ordinary civiliansand particularly the poor and
disadvantaged such as dalits, religious minorities, adivasis, and
working people. Thus the tribunal recommended that POTA be repealed
and that too in such a manner that the POTA charges are deleted from
all existing investigations and trials. But, if the state so desires,
these may continue under other laws and charges.

Finally on September 17, 2004 the Union Cabinet in keeping with the
UPA government's Common Minimum Programme, approved ordinances to
repeal the controversial Prevention of Terrorism Act, 2002 (POTA) and
amend the Unlawful Activities (Prevention) Act, 1967. Home Minister
Shivraj Patil said that the government would provide a sunset period
of one year during which all cases pertaining to POTA would be
reviewed by the Central POTA Review Committee. He added, There would
be no arrests made after the ordinance is promulgated. To fill the
lacuna that have been created due to the repeal of the Act, adequate
amendments were being brought to the Unlawful Activities (Prevention)
Act, 1967 to define a terrorist act and provide for banning of
terrorist organisations and their support systems, including funding
of terrorism, attachment and forfeiture of proceeds of terrorism, etc.
All terrorist organisations banned under POTA would continue to remain
banned, under the Unlawful Activities Act, after the repeal of the
Act. Some of the clauses contained in POTA, which will be completely
dropped in the amended Unlawful Activities Act, are: the onus on the
accused to prove his innocence, compulsory denial of bail to accused
and admission as evidence in the court of law the confession made by
the accused before the police officer.

The BJP government has slammed the Cabinet decision to repeal POTA as
politically motivated and compromising of the essentials of national
security. BJP spokesperson and former Law Minister Arun Jaitley said
if the amendments brought out under the existing laws after the repeal
of POTA are found to be inadequate, the BJP-ruled states would be
asked to come out with their own legislations filling up the lacuna.
But till such a step is taken many innocent victims of the POTA can
take a sign of relief and thank their stars that the reign of terror
under the stringent anti terror law POTA has come to an end.