The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years Article 45 , promotion of educational and economic interest of the weaker sections of the people and their protection from injustice and all forms of exploitation Article 46 , raising the standard of living, improving the level of nutrition and public health and prohibition of intoxicating drinks and of drugs Article 47 , scientific reorganisation of an ma1 husbandry and agriculture Article 48 conservation of environment, forests and wildlife Article 48A , protection of monuments and things of irtistic or historical importance Article 19 , separation of judiciary from ttie executive Article 50 and promotion of international peace and securil y Article The various 'reasonable restrictions' clauses in Part Ill, Article 21, and the seldom-used Part IV-A habe given the judiciary ample scope for the Judicial Review of administrative and legislative action.
Indeed, Article 21 has allowed it to act as a :atalyst in prodding the State to implement the directive principles in so far as they directly bear upon "life and personal liberty. The Constitution provides for direct elections to the House of the People of the Central Parliament, i.
Both the Houses of Parliament together elect the Vice-President. The right to vote, the right to contest elections, and the conduct of elections are all governed 3y the Constitution Part XV as well as special laws like the Representatiori of the People Act, Parliament has power to make laws, inter lia, on preventive c'etention Item 9. Union List, and item 3, Concurrent list , offences against laws in respect of any matter in the Union List Item 93 , and any rnatter not enumerated in any of the three lists Item 97 and Article Public order Item I , prisons and reformatories Item 3 , relief to the disabled and the unemployed Item 9 , and industries other than those declared by Parliament to be controlled by the Union Item 24 are among the items in the State List.
The Police is a State subject Item 2 , whereas deployment of any armed forces of the Union or any other force under the control of the Union is in the Union List Item 2-A. Further, Article empowers parliament to make laws for implementation of any treaty, notwithstanding the above distribution of legislative powers. The executive power of a State is vested with the Chief Minister and his Cabinet who are responsible ':o the State Legislative Assembly.
The President of lndia on the advice of the Prime Minister appoints the Governor, the head of a State. There is a common civil service for the whole of India, whose officers head the Union administration and non- military security forces, and al:;o the State administrations and Police forces.
There is mobility between the Union and State senior positions. The judiciary is presided over by the Supreme Court. The State judiciary is under the control of a High Court, which in certain respects enjoys even broader powers than the Supreme Court, although the law declared by the Supreme Court binds it.
In the scheme of the Constitution, there exists a separation of powers among the legislature, the executive and the judicary, with the judiciary being fiercely independent of the other two, charged with the task of enforcing the constitutional norms, including human rights, and adjudicating upon all inter-individual, inter-institutional disputes.
The freedom of the Press has been monitored chiefly by the Press :ouncil of lndia since It performs this function mainly by innovative interpretation and application of the human rights provisions of the Constitution. The Supreme Court of lndia has in the case Ajay Hasia v. In , thms very first year of the Constitution, the Supreme Court in the c,ase A. Gopalan v. State of reflecting on the intentions of the Constitution-makers, held that "procedure established by law" only meant that a procedure had to be set by law enacted by a Legislature.
Tiree decades later, in Maneka Gandhi v. Further, this approach has led to procedural due process innovations such as the right to claim legal aid for the pocr and the right to expeditious trial.
Such an approach allows it to come down heavily on the system of administration of criminal justice and law enforcement. It also brings into the fold of Article 21 all those directive principles of state policy that are essential for a "life with dignity. In the Francis Coralie Mullin v. Justice Bhagwati held "if a person is deprived of his liberty under a procedure which i j not 'reasonable', 'fair' or 'just', it would fall foul of Article There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article Deoraj Khatri v.
The Supreme Court condemned it as a "barbaric act and a crime against mankind. The State of Maharashtra case,49the Court was confronted with the custodial violence against women and it laid down certain guidelines against torture and ill treatment of women in Police custody and jails.
This was highlighted in the Rudal Shah v. State of Bihar case. The health problems of workers in the asbestos industry led the Supreme Court in the case Paramanand Katra v. Union of lndia to rule that the right to life and liberty under Article 21 also encompasses the right of the workers to health arid medical aid. The rule of '1oi:us stand? On the other hand, the public interest litigation is based on the principle that: We cannot write off the weaker victims of injustices; the court's door when they knock shall open How can a bonded labourer working in a stone quarry ever know of moving the Suprt:me Court?
Public Interest Law offers new challenges and opportunities fol- the committed lawyers and social groups to serve the unequal segments of society better.
This sensitive development is part of democracy of the disabled and of the movement to vindicate social justice through professions for the people. As a result, 'judges with a vision have new universes to behold, and mansions of people's justice to build.
Hence lie advised that the court should prima facie be satisfied that the information laid before it is of such a nature that it calls for examination. By looking at the credentials of the informant, the specific nature of the allegation, the gravity or seriousness of the complaint, and any other relevant circumstances should also be derived.
In the Sunil Batra v. Union of India case,54 the Supreme Court entertained a letter from Batra, a prisoner, complaining about the treatment meted out to a fellow prisoner in a jail. As the court opened its doors wide shedding procedure formalism, many of these issues repeatedly came before it as well as many others such as torture of young prisoners, Police brutality like blinding of suspects during investigation, custodial violence against women prisoners, deaths in Police custody, handcuffing of accused persons facing trials and fetters on incarcerated prisoners.
As the legal procedu'e became deformalised, the court evolved new devices to assist it in dealing with public interest litigation, such as special inquiry, fact-finding commission, scheme remedies and post- decisional monitoring. A nation-wide Legal Aid Scheme came to be established on the initiative of the Supreme In the Supreme Court promised to examine a range of relevant issues concerning ihe public interest litigation procedure.
An examination of these issue:; may be useful to streamline the public interest litigation law and pra1:tice with a view to discouraging abuses. Article 2' embodies a judicially enforceable right. Therefore, it should essentially be a right capable of being protected by a judicial order. Every human right may not be capable of judicial t? Taking into account the peculiar nature of public interest litigation, the Supreme Court of India in a public interest litigation, D.
Basu v. The Guidelines are: 1. The Police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of such P k e personnel who handle interrogation of the arrestee must be recorded in a register.
The Police officer exexiting the arrest shall prepare a memo at the time of arrest and shall be attested by at least one witness. This may be either a member of the family of the arrested or a respectable person of the locality from where the arrest is made.
It shall be countersigned by the arrestee and shall contain the time and date of arrest. The person arrested must be made aware of his right to have some one informed of his arrest or detention as soon as he is put under arrest or is detained. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the narnes and particulars of the Police officials in whose custody the arrestee is.
The arrestee should, where he so requests, be also examined at the time of his arres: and the major and minor injuries if any present on his body and must be recorded at that time. The 'Inspection of memo' riust be signed by both the arrestee and the Police officer effecting the arrest and a copy shall be provided to the arrestee.
The arrestee should bt? He should prepare such a panel for all tehsils anc Districts as well. Copies of all the documents including the memo of arrest referred to above should be sent to the Magistrate for his record. The arrestee may be permitted to meet his lawyer during interrogation though the latter may n3t be present throughout interrogation.
A Police control roorn should be provided at all District and State headquarters so that information regarding the arrest and the place of custody of the arrestee can be communicated by the Officer carrying out the arrest within 12 hours of effecting the arrest and at the Police control room it should be displayed on a conspicuous notice board. The Supreme Court ;also insists that the requirements that flow from Articles 21 and 22 1 of the Indian Constitution are to be strictly followed.
F , Border Security Force B. These guidelines are only a few out of a large number of judgements of the apex court in which the court upheld the human rights of the oppressed individuals. The freedom of information, the democratic right to know, is crucial in making all other human rights effective and providing an important safeguard for the snjoyment of all those rights. Traditionally, the vehicle of public information was the Press.
Today it is called the media, which include the press, ihe radio, the television and the internet. The "Fourth Estate" plays a crucial role in a large democracy like India where about different types of newspapers are circulated. Many the11depended on the BBC for 'impartial' news about lndia. It is no wonder that the freedom of the Press or media became a watchword after emergency. Disposing of a case o: contempt of court against the editors of two newspapers, the Supreme Court remarked: It is the duty of a true and responsible journalist to provide the people with accurate and impartial presentation of news and his views after dispassionate evalclation of facts and information received by him and to be published as a news item.
The editol- of a newspaper or a journal, the court said, has a greater responsibility to guard against untruthful news and its publication. If the newspaper publishes what is improper, misc:hievously false or illegal and abuses its liberty, it must De punished by a court of law.
However, of late it has also come in for criticism, as highlighted by the above Supreme Court decision. The Chairman of the Press Council condemried increasing commercialism and corrupt practices emphasizing the need to arrest them.
Considering the totalit! A colonial law relating to official secrecy, the Official Secrets Act. Sati Prevention Act, ' The National Commission for Women Act, The National Commission for Minorities Act, The Mental Health Act, This is an elaborate charter on human rights ever framed by any State in the world.
The Judiciary in lndia plays a significant role in protecting human rights. The lndian Courts have now become the courts of the poor and the struggling masses and left open their portals to the poor, the ignorant, the illiterates, the downtrodden, the have-nots, the handicapped i ' n d the half-hungry, half-naked countrymen. References and Notes 1 Jawaharlar Nehru.
The Discovery of lndia, 2"d ed. New Delhl. Jawaharlal Nehru Memorial Fund, Read judgment on TanzLII. How did it happen that what appeared a secure conviction was set aside? How will the three judges feel about their decision which, setting the father free, could place the daughter at risk again? Over the last fortnight, the media in South Africa has been filled with particularly terrible crimes involving gender-based violence.
In one response, an enormous crowd of women and men, dressed in black, protested outside the parliament buildings, demanding they be addressed by the President. Many were urging that a state of emergency be declared because of on-going femicide and rape. But the problem is endemic in the whole SADC region.
And occasionally even the courts are moved to speak strongly on the issue. Skip to main content. Google Tag Manager. News About Contact. Home Constitutionalism and Human Rights. Current contributors. Request group membership. Channel content Mar. Read judgment This is a story that could have come from almost anywhere in Africa.
Read judgment on ZambiaLII Is it possible for the institution of chieftaincy and its associated traditions to fit comfortably under a system of democratic constitutionalism? Enter the email address you signed up with and we'll email you a reset link. Need an account? Click here to sign up.
Download Free PDF. Indian Constitutionalism. Preeti Goyal. A short summary of this paper. Download Download PDF. Translate PDF. Constitutional government, therefore, should necessarily be democratic government. In other words, Constitutionalism is a political philosophy in which the functions of government of a state must be in accordance with the provisions of the constitution meaning thereby the actions of government must reflect constitutionality.
As the constitutionalism is a political spirit or philosophy, so it is not necessary that the states who have a constitution must be embodied with the concept of constitutionalism. According to Douglas Greenberg 1 , Constitutionalism is a commitment to limitations on ordinary political power, it revolves around a political process, one that overlaps with democracy in seeking to balance state power and individual and collective rights, it draws on particular cultural and historical contexts from which it emanates and it resides in public consciousness.
Now to identify that whether constitutionalism is present in India or not. There is no exhaustive list of features by which the validity or existence of constitutionalism can be tested; but the every feature which limits the government and proves helpful to establish a position of sovereignty under fundamental principles of constitutional jurisprudence may be a considerable point for constitutionalism.
In Indian context, Preamble may be a point to check the presence of constitutionalism. Our constitution enacted on 26th November,, since then, a question always a matter of great concern that whether preamble is a part of Indian constitution or not. Preamble explains the objectives of constitution in two ways, one about the composition of bodies of governance and other about the objectives sought to be achieved in independent India. According to Justice Subbarao, Preamble is the soul of the constitution, without which a body in the form of state cannot be survived.
The objectives of constitution ensure the dignified conditions for the people of India and provide them all rights and liberties within ambit of fundamental spirit of constitutionalism embodied in entire body of the constitution.
Radhakrishnan 2 , former President of India, has explained secularism in this country, as follows:- When India is said to be a secular state, it does not mean that we reject the reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that secularism itself becomes a positive religion or that the state assumes divine prerogatives…..
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