Thursday, August 27, 2009

Land Acquisition Act 1894

This act which was enacted in 1894 is one of the remnants of the colonial legacy on independent India. Sure there have been amendments to the act but the character of the act still remains the same.

For those of us who are not aware of the exact contents of the act, I wish to briefly explain the act as I would to a layman. The act has various sections and without going deep into each section, I will try and simplify by going step wise.

The act is basically meant to acquire land for public purposes and for companies.

Step I
  • appropriate govt makes a preliminary notification that land is required for public purpose or a company. This notice made under section 4(1) has to be published in official gazette and in two local news papers atleast one of them being in local language.
  • Primary survey is then done to ascertain the suitability of land.
  • Any interested party, meaning owner of land can within 30 days of publication of notice u/s 4(1) submit his objections to the collector who hears the objections and after making necessary enquiry submit his recommendations and report to the govt.
Step II

  • The govt after considering the report of collector, the govt issues a declaration u/s 6(1) that the said land is required for public purpose or for a company. This declaration has to be made within one year of the notification u/s 4(1). This declaration is then published in official gazette and two local news papers.
  • After this the collector initiates further action like measurement etc.
Step III

  • Once this is done, collector acting under section 9 directs through a public notice that any claims for compensation of the land be made to him.
  • These claims are heard and then collector gives his award for compensation u/s 11.
  • award has to be made within 2 years from date of declaration u/s 6.
Step IV
  • The collector can take possession of the land after the order is made.
Step V
  • On making the award u/s 11, the collector then makes payment of the compensation awarded by him.
  • In case amount is not paid or deposited in court as the case be before taking possession of the land, the collector has to pay an interest @9% per annum for the first year and @15%per annum subsequently.
  • Any body who is not acceptable to the amount of compensation can through the collector appeal to the district court. The court can only decide on the amount of compensation and not any thing else. The court can also not decrease the compensation awarded by the collector.
  • In addition to the above compensation courts should award a sum of 30% on the market value ascertained by it. Further courts shall also award a sum of 12% of market value for the intervening period from date of notification u/s 4 to the date of actual taking possession of land/or date of award whichever is earlier.
Now, some interesting issues in this act that are being pointed out by activists against the act are provided below.
      • The act says compensation is payable only to interested parties which means the person has is interested in an easement affecting the land. This means that the agricultural labourers who are also dependant on the land but have no rights cannot be compensated.
      • assumes that money is an adequate means of compensation.
      • There is no standard and well defined process of fixing compensation.
      • In case where local bodies are the interested parties, they do not even have the right to go to court. They simply have to surrender and can only represent regarding compensation to the collector.
      • Under urgency provisions u/s 17, collector can do away with most of the above procedures and take possession of land. But what constitutes urgency or essential requirement has nowhere been defined.
      • 45 discusses how notice should be served. In case notice cannot be served on the person named, it has to be served on any other male member of the family. It is not lawful to serve the notice to a female member of the family.
      • How can govt acquire forcibly land and hand over to a company whose sole interest is making profit.
      • The rules and norms of market are not followed. Normally in market, land is traded for an amount mutually agreed to after negotiations.
      • entire process is very slow and due to inordinate delays causes great hardships to the people involved.
      • Compensation is not immediately paid to the evicted people resulting in great hardship to them.
However it is equally true that sometimes house owners claim astronomical amounts as compensation while refusing to pay betterment charges.

Ashoka Chakra

Ashoka Chakra - The Tale Of Twenty Four Spokes

The Ashoka Chakra means the 'wheel of the law'. It is derived from the Sanskrit word Dharma Chakra, which means wheel. It has 24 spokes.

The most prominent Indian Mauryan emperor, called Ashoka the Great, built the Ashoka Chakra during the 3rd century BC. The Ashoka Chakra is inscribed widely among the Lion Capital of Sarnath and the Ashoka Pillar. The Ashoka Chakra is placed in the center of the National Flag of the Republic of India. It was adopted on 22 July, 1947. It is rendered in a navy blue colour on a white background. In order to add historical 'depth' and separate the National Flag from that of the Indian National Congress (INC) Gandhian spinning wheel is replaced with the Spokes of Ashoka Chakra in the center of the Flag.


Ashoka Chakra can also be seen on the base of Lion Capital of Ashoka which has been adopted as the National Emblem of India. The Chakra signifies that there is a life in 'Movement' and 'Death' in stagnation. The process of the wheel stands for cycle or the self repeating process with the changing of time in our life. The Horse on the Right hand symbolizing accuracy and speed. The Bull on the Left hand stands for hard work.

Wonderful Qualities of Twenty Four Spokes:
1. Love
2.Courage
3.Patience
4.Peacefulness
5.Magnanimity
6.Goodness
7.Faithfulness
8.Gentleness
9.Selflessness
10.Self-control
11.Self sacrifice
12.Truthfulness
13.Righteousness
14.Justice
15.Mercy
16.Gracefulness
17.Humility
18.Empathy
19.Sympathy
20.Spiritual knowledge
21.Moral Values
22.Spiritual Wisdom
23.The fear of God
24.Faith or Believe or Hope

Ashoka Chakra represent the 24 Hours of the nation. Thus it governs all.

Domestic Voilence Act

The Act covers
  • abuse or thread to abuse, whether physical, sexual, verbal, emotional or economic.
  • Harassment by way of dowry
  • Right to secure housing of women with right to reside in the matrimonial or shared household.
  1. The Act is called Protection of Women from Domestic Violence Act, 2006
  2. It came into effect from 26th October 2006.
  3. It primarily meant to provide protection of the wife or a female live-in partner from voilence at the hands of the husband or his relative. The Law has also extended its protection to mothers, sisters and widows.

Wednesday, August 26, 2009

Supreme Court of India


-In India, the Supreme Court of India was created on January 28, 1950 after the adoption of the Constitution.

-The Supreme Court is a constitutional authority independent from political interference.

-All judgments are binding across all states of India, the exception being the state of Jammu and Kashmir where the Indian Penal Code is not applicable.

-The court rulings take precedence over state High Courts.

-In extremely rare cases such as capital punishment, the decision may be passed on to the President of India for clemency petitions.

Sunday, August 23, 2009

Schedules

Schedules

FIRST SCHEDULE : I. The State, II. The Union Territories.

SECOND SCHEDULE :

PART A. Provisions to the President and the Governors of States
PART B. (Repeated)
PART C. Provisions as to the Speaker and the Deputy Speaker of the House of the People and the Chairman and the Deputy Chairman of the Council of States and the Speaker and the Deputy Speaker of the Legislative Assembly and the Chairman and the Deputy Chairman of the Legislative Council of a State.
PART D. Provisions as to the Judges of the Supreme Court and of the High Courts.
PART E. Provisions as to the Comptroller and Auditor-General of India.

THIRD SCHEDULE : Forms of Oaths or Affirmations.

FOURTH SCHEDULE : Allocation of Seats in the Council of States.

FIFTH SCHEDULE : Provisions as to the administration and Control of Scheduled Areas and Scheduled Tribes.

PART A. General
PART B. Administration and Control of Scheduled Areas and Scheduled Tribes
PART C. Scheduled Areas
PART D. Amendment of the Schedule

SIXTH SCHEDULE : Provisions as to the administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram.

SEVENTH SCHEDULE :

LIST I. Union List
LIST II. State List
LIST III. Concurrent List

EIGHTH SCHEDULE : Languages

NINTH SCHEDULE : Article 31B

TENTH SCHEDULE : Provisions as to disqualification on the ground of defection

ELEVENTH SCHEDULE : Article 243G

TWELFTH SCHEDULE : Article 243W



Articles of the Constitution

Articles of the Constitution

Part Article Deals with
Part I Articles 1-4 Territory of India,, admission,, establishment or formation of new states
Part II Articles 5-11 Citizenship
Part III Articles 12-35 Fundamental Rights
Part IV Articles 36-51 Directive Principles of State Policy
Part IV A Article 51-A Duties of a citizen of India. It was added by the 42nd Amendment in 1976
Part V Articles 52-151 Government at the Union level
Part VI Articles 152-237 Government at the State level
Part VII Article 238 Deals with states in Part B of the First Schedule. It was repealed by 7th Amendment in 1956
Part VIII Articles 239-241 Administration of Union Territories
Part IX Article 242-243 Territories in Part D of the First Schedule
and other territories. It was repealed by 7th Amendment in 1956
Part X Articles 244-244 A Scheduled and tribal areas
Part XI Articles 245-263 Relations between the Union and States
Part XII Articles 264-300 Finance,, property,, contracts and suits
Part XIII Articles 301-307 Trade,, commerce and travel within the
territory of India
Part XIV Articles 308-323 Services under the Union and States
Part XIV-A Articles 323A-323B Added by the 42nd Amendment in 1976
and deals with administrative tribunals to hear disputes and other complaints
Part XV Articles 324-329 Election and Election Commission
Part XVI Articles 330-342 Special provision to certain classes ST/SC
and Anglo Indians
Part XVII Articles 343-351 Official languages
Part XVIII Articles 352-360 Emergency provisions
Part XIX Articles 361-367 Miscellaneous provision regarding exemption of the President and governors from criminal proceedings
Part XX Article 368 Amendment of Constitution
Part XXI Articles 369-392 Temporary,, transitional and special provisions
Part XXII Articles 393-395 Short title, commencement and repeal
of the Constitution

Directive Principles of State Policy

Directive Principles of State Policy

State to secure a social order for the promotion of welfare of the people;

Certain principles of policy to be followed by the state;


Organisation of village panchayats;


Right to work, to education and to public assistance in certain cases;


Provision for just and humane conditions of work and maternity relief;


Living wage, etc., for workers;


Uniform civil code for the citizens;


Provision of free and compulsary education for children;


Promotion of education and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections;


Duty of the State to raise the level of nutrition and the standard of living and to improve public health;


Organisation of agriculture and animal husbandry;


Protection and improvment of environment and safegaurding of forests and wild life;


Protection of monuments and places and objects of national importance;


Separation of judiciary from executive;


Promotion of international peace and security.

Extracts from The Constitution of India

Preamble

(The preamble is an introductory statement, a preliminary explanation.)

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 :
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
In our consitutent assembly this twenty-sixth day of November, 1949, do hereby adopt, enact and give to ourselves this constitution.

Fundamental Rights

Right to Equality
Right to Freedom
Right against Exploitation
Right to Freedom of Religion
Cultural and Educational Right
Right to Constitutonal Remedies
Saving of Certain Laws

Fundamental Duties

To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

To cherish and follow the noble ideas which inspired our national struggle for freedom;

To uphold and protect the sovereignty, unity and integrity of India;

To defend the country and render national service when called upon to do so;

To promote harmony and the spirit of common brotherhood amongst all the people of India transending religious, linguistic and regional or sectional diversities;to renounce practices deregatory to the dignity of women;

To value and preserve the rich heritage of our composite culture;

To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

To develop the scientific temper, humanism and the spirit of enquiry and reform;

To safegaurd public property and to abjure violence;

To strive towards excellenc in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement.

Friday, August 21, 2009

Fundamental Rights, Fundamental Duties, Directive Principles of State Policy

Constitutional Rights for Indian Citizens

- Fundamental rights under articles 15, 16, 19
- Some important posts reserved
- right to vote

The Parliament has passed a bill on dual citizenship for persons of Indian Origin ( PIO) living abroad.

Fundamental Duties

--> By 42nd Amendment, part IV A, Aticle 51 A
--> There are 10 fundamental duties.
--> Justice Verma Committee had recommended for enforcement of Fundamental duties by the citizens.

Directive Principles of State Policy (DPSP)

-> From Article 37- Article 51
-> Part IV of the Constitution

DPSP as mentioned in other parts of the constitution:

-> Article 350: Providing primary education in mother tongue for people of minority class
-> Article 351: Duty to spread Hindi Language amongst people of India
-> Article 335: To appoint SC, ST in state and union services

DPSP are Affected by Western Liberalism

Some Important DPSPs

Article 44: Uniform Civil Code
Article 45: Free and Compulsory Education for Children
Article 50: Separation of Judiciary from Public Services
Article 51: Development of International peace and Security
Article 49: Protection of National and Historical Monuments

Notes on Fundamental Rights

Fundamental Rights
Part III of the Indian Constitution( A 12-35) deals with the FR granted to individuals.
Originally seven groups of rights. But now 44th Amendment ‘Right to property’ deleted.
1) Right to equality and liberty : Art (14-18)
14: Equality before law
15: Prohibition of discrimination
16: Equality of opportunity
17: Abolishes practices of untouchability
18: Prohibits state from confirming any title

2) Right to Freedom. (19-22)
-Freedom of speech and expression
-Freedom of Assembly
-Freedom to form associations
-Freedom to move freely throughout India
-Freedom to reside and settle in any part of the country
-Freedom to practice any profession

3) Right against Exploitation (23-24)
Art 23: Prohibits traffic against human beings and beggar
Art 24: Prohibits employment of children below 14 years of age in factories mines etc.

4) Right of Freedom of Religion (25-28)

5) Right for Culture and Education (Article 29-30)

6) Right to Constitutional Remedies(Article 32)

• Dr Ambedkar call article 32 as “the very soul of the constitution and the very heart of it”.

• In Golaknath case in 1967, the SC ruled that parliament has no power to amend any of the provisions of part III so as to take away or abridge fundamental rights as guaranteed by the constitution.

• In Keshawnand Bharti case, the SC ruled that parliament has power to amend, but it can not destroy the basic structure of the constitution.

• In T.K,Rangarajan Vs Govt of TN and others, SC observed that govt employees including doctors working in state run hospitals and dispensaries have no “fundamental, legal, moral or equitable right to go on strike even for a just cause".

Distinction between Fundamental Rights and Directive Principles

*Fundamental Rights are justifiable while Directive Principles are not.

* Fundamental Rights are negative and Directive Principles are positive.

* Fundamental Rights responsible for political democracy while Directive Principles are for establishment of economical and welfare state.

* If there is discrepancy between Fundamental Rights and Directive Principles then Fundamental Rights will prevail.

The Writs:
Habeas Corpus:
“To have a body”- An order calling a person who has detained another to produce the letter before the court to let it know, on what ground he has been confirmed.

Prohibition : It is issued by SC or HC to a inferior court forbidding jurisdiction or to usurp a jurisdiction with which it is not legally vested.

Mandamus: ”We command” : Commands the person to whom it is addressed to perform some public or quasilegal duty which he has refused to perform.

Certiorary: It is issued to a lower court after a case has been decided by it, quashing the decision or order.
Qua-Wananto: It is a proceeding by which the court enquires into the legality of the claim which a party asserts to a public office.

Indian Polity - V

  • At the time of independence, there were 9 British provinces and 542 princly states
  • V.B. Patel is known as "Bismark of India" because of the integration of princly states.
  • On the linguistic basis, AP was the first state independent India.
  • Acquisition of Citizenship:

a. by birth: Those born in Indian on or after Jan 26 1950 before June 30 1987. After July 1, 1987, if either of the parents were citizens of India at the time of birth. ( to control refugees coming from Bangladesh etc.)

b. by descent: Person born outside India on or after Jan 26, 1950 shall be a citizen of Indian if his father is a citizen of India at the time of person's birth. ( the above two categories are natural citizens)

c. By registration: 1. If he is of Indian origin and has been resident in India for five years.

d. By Naturalisation: A foreigner: By taking an oath of Allegiance to the constitution of India.

e. By incorporation of territory.

Termination

1. Renunciation: If he voluntary renounces

2. Termination: If he acquires citizenship of other country.

3. Deprivation: By an act of Government of India

Indian Polity - IV

Sources of Indian Constitution:

Fundamental rights : USA
Supreme Court: USA
Vice President: USA
Parliamentary System: UK
Federal System: Canada
Emergency: Germany and Government of Indian Act 1935
Directive Principles of State Policy: Irish Constitution
Fundamental Duties: Soviet Union
Republic: France
Concurrent List: Australia
Amendment Process: South Africa
Due process of law under article 21: Japan

Different Committees of the constitution:

1. Union power committee: JL Nehru
2. Union Constitution Committee: JL Nehru
3. Fundamenatal rights and Minority Committee: VJ Patel
4. Provincial Constitution Committee: VJ Patel
5. Drafting Committee: BR Ambedkar
6. Flag Committee: JB Kriplani

Territory of the union (part-1)
- Article 1 says that, India, that is Bharat, shall be a union of states.

Indian Polity - III

  • The words "socialist", "secular" and "integrity" were introduced in the 42nd Amendment act.
  • In Beruberi's Case SC held that preamle is not a part of the constitution
  • But in Kesavananda Bharti V. State of Kerala Case, the SC rejected the above view and held that preamble is a part of the constitution
  • In Excel Wear V. Union of India, the SC held that "socialist" word in preamble is to provide a decent standard of life to the working people and especially provide security from cradle to grave.
  • In Minerva Mills Case, the importance of premble is realised. Chief Justice observed: " the edifice of our constitution falls upon the concepts crystallised in the preamble".
  • Members of the drafting Committee: Dr. B. R. Ambedakar (Chairman), Alladi Krishna Swami Ayyar, K.M. Munshi, N. G. S. Ayangar, Md. Sadullah, N. Madhav Rao ( in place of B. L. Mitra), DP Khetan ( T. Krishnamachari after Khetan Death)

Indian Polity - II

- Indian constitution establishes a parliamentary form of government of India
- The Indian constitution is structured on Government of India Act 1935
- The Fundamental rights embodied are based on Bill of Rights of the US constitution.
- The Directive Principles of State Policy in Part IV of the constitution are derived from the constitution of Ireland
- Parliamentary form of Government is modeled on the constitution of Great Britain.
- The Preamble is the preface to the constitution
- The preamble says “We the people of India, having decided to make this country as sovereign, socialist, secular, democratic republic and to secure to all its citizens: justice, social, economic and political. Liberty of thought, expression, belief, faith and worship, equality of status and opportunity: and to promote among them all; fraternity assuring the dignity of the individual and the unity and integrity of the nation. In our constitution assembly this twenty sixth day of November 1949, we do hereby adopt, enact and give to ourselves this constitution.

Indian Polity - I

Salient Features of the Indian Constitution:

- Indian constitution is the lengthiest and most detailed of all constitutions in the world
- originally consisted of 395 articles divided into 22 parts and 9 schedules
- There are 6 fundamental rights in the constitution.
- India is a secular state (means state has no religion on its own)- Articles 25 t0 28 give shape to this secularism.
- It provides for a single citizenship for the whole of India. There is no state citizenship
- The preamble of the constitution declares India to be a Sovereign, Socialist, Secular, Democratic Republic.

Soverign: Country is not dependent upon any outside authority.
Socialist: Ownership ofthe means of production and distribution by the state- inserted by 42nd amendment act.
Democratic: It has a government which gets its authority from the will of the people.
Republic: India does not have a hereditary monarch.

- Indian democracy is based on adult suffrage. In other words, any person who is not less than 18 years of age, who is otherwise eligible has a right to vote without any discrimination on sex, property or texation.

Friday, August 14, 2009

Directive Principles of state policy

  • Part IV of the constitution contains the directive principles of state policy.
  • According to Art. 37 , it shall be the duty of the state to apply the Directive principle in making laws for the governance of the country.
  • However these principle are not enforcible in the courts and do not create any justicable rights in favour of Individuals.
  • The courts cannot declare any law as void on the ground that they contravene any of the directives of state policy.