Memorizing the Indian Constitution Schedules : A Fun and Creative Approach

The Indian Constitution has a rich history and its fair share of controversies. As the largest written constitution in the world, it originally contained 395 articles, 8 schedules, and 22 parts. 

As law students, it is essential for us to understand what each article, schedule, and part represents. However, memorizing all of this can be quite overwhelming. Personally, I found it challenging too. But for the 12 schedules, I came up with a fun trick to make it easier. 

I was a huge fan of the show Star Trek, which featured Mr. Spock, the science officer aboard the starship USS Enterprise. Using him as a reference, I created a mnemonic that helped me remember the schedules:
"SPOCk SS Le Le, Varna DPM aajaega."
Here's how it breaks down:

1. S – Schedule 1: State and Union Territories
2. P – Schedule 2: Provisions related to the President and Governors of States
3. O – Schedule 3: Oaths and Affirmations
4. C – Schedule 4: Allocation of seats in the Council of States
5. S – Schedule 5: Scheduled Areas and Scheduled Tribes
6. S – Schedule 6: Administration of Tribal Areas in States like Assam, Meghalaya, Tripura, and Mizoram
7. L – Schedule 7: Lists (Union, State, and Concurrent Lists)
8. L – Schedule 8: Languages
9. V – Schedule 9: Validation of certain Acts and Regulations
10. D – Schedule 10: Defection
11. P – Schedule 11: Panchayats
12. M – Schedule 12: Municipalities

By relating these to something I enjoy, like Star Trek, I found it much easier to remember. It is always better to connect things to what you love instead of trying to cram everything just because others say so!

 

Understanding The Doctrine Of Prospective Overruling

In the world of legal evolution, India took a monumental step with the adoption of the Doctrine of Prospective Overruling. A concept that originated in the American judiciary system, it found its way into Indian jurisprudence and forever changed the landscape of legal interpretation and application.

The Birth of Doctrine of Prospective Overruling 

The Doctrine of Prospective Overruling made its mark in India during the landmark case of Golaknath vs. State of Punjab. Chief Justice Subba Rao paved the way for a new era in legal thinking. The Supreme Court, in this case, made a profound decision: while overturning a previous ruling that had upheld Parliament's power to amend fundamental rights, the new ruling would only apply to cases decided after the Golaknath judgment.

This unique approach was not just a legal maneuver; it was a testament to India's commitment to preserving the sanctity of past judgments while allowing the law to evolve in the future. It struck a delicate balance between respecting precedents and adapting to the changing needs of society.

Doctrine of prospective overruling in general words

The term 'prospective' denotes something that operates only in the future, while 'overrule' means overturning a precedent or ruling. Therefore, in simpler terms, the doctrine of prospective overruling is a decision made in a particular case that will only apply to future cases and will not have a retrospective effect on past decisions.

Conclusion:

The journey of the Doctrine of Prospective Overruling in India, starting with the Golaknath case, showcases the dynamism of the Indian legal system. It stands as a testament to the adaptability and foresight of the judiciary. By adopting this doctrine, India has not only embraced a powerful tool for legal development but has also strengthened the foundation of its legal heritage. In this ever-changing world, the Doctrine of Prospective Overruling serves as a beacon of continuity and progress, ensuring that the law remains relevant and just in the years to come.

Refrences 

https://www.freelaw.in/legalarticles/What-is-the-Doctrine-of-Prospective-Overruling---Jurisprudence

https://indiankanoon.org/doc/120358/

https://byjus.com/ias-questions/what-is-the-doctrine-of-prospective-overruling/#:~:text=The%20doctrine%20of%20Prospective%20Overruling%20originated%20in%20the%20American%20Judicial,case%20of%20Golak%20Nath%20v.

https://blog.ipleaders.in/all-about-the-doctrine-of-prospective-overruling/

https://www.legalserviceindia.com/articles/prul.htm

Concept Of Ownership, Unraveling the Connection with Possession

Ownership and possession are often used interchangeably, but they carry distinct concepts. Ownership, a fundamental principle in jurisprudence, grants individuals the right to control and utilize specific assets in a particular manner. The roots of ownership can be traced back to Roman and Hindu law, where it significantly differed from mere possession. In Roman law, the term "dominium” represented the absolute right to a thing, encompassing the full spectrum of control and authority over it. On the other hand, the word “possession” denoted mere physical control over the object without necessarily implying complete ownership or legal entitlement.
Over time, the concept of ownership evolved, encompassing not only physical control but also legal rights, privileges, and responsibilities associated with the property. In contrast, possession remained limited to the immediate physical holding or occupancy of the asset without implying a comprehensive legal entitlement.

Definition of ownership:

Various jurists and legal scholars have offered definitions of ownership throughout history. Let's explore some of these definitions:

Salmon’s definition-

According to Salmond ownership vests in the complex of rights which he exercises to exclusive of all others. For Salmond what constitutes ownership is a bundle of rights which in here resides in an individual. Salmond’s definition thus points out two attributes of ownership.

1. Ownership is a relation between a person and a right that is vested in him
2. Ownership is incorporeal body

Austin’s definition-

According to the view of Austin, there are three elements of ownership:

1. Indefinite user
2. Power of disposal
3. Unlimited duration

Holland’s definition-

He followed Austin’s view of ownership and according to him an owner has three kinds of powers namely; possession, enjoyment, and ownership all or some of which can be lost by lease or mortgage

Pollock’s definition-

According to him, ’Ownership may be described as the entirety of the powers of use and disposal allowed by law.’

Hibbert’s definition-

Ownership includes four kinds of rights within itself:

1. Right to use a thing
2. Right to exclude others from using the thing
3. Disposal of the thing
4. Right, to destroy it.

Kinds of ownership:

There are many kinds of ownership, and some of them are-

• Corporal and Incorporeal ownership:

Corporal ownership is the ownership of a tangible object which can be seen or perceived by senses example ownership of a house, a table, or a machine etc., whereas, incorporeal ownership is the ownership of an intangible object example ownership of a patent, copyright, or trademark etc.

• Legal and Equitable ownership:

Legal ownership are those ownerships which are based on common law, and equitable ownership is that which proceeds from the rules of equity. There is a distinction between the two.

• Vested and Contingent ownership:

When the ownership is based on the fulfillment of some conditions it is known as contingent interest i.e., the ownership is based upon the mere possibility of future events, whereas Ownership is said to be vested when the owner’s title is already perfect i.e., the property is owned absolutely.

• Absolute and Limited ownership:

When in a person all the rights of ownership are vested without any restriction it is absolute ownership, but when there are limitations on user, duration or disposal, the ownership is limited ownership.

• Sole and co-ownership:

When the ownership is vested in one person, it is known as the sole ownership, however when it is vested in more than one it is called co-ownership.

Acquisition of ownership:

Acquisition of ownership can be categorized mainly in two heads

1. Original
2. Derivative

Original mode is the result of some independent personal act of the acquirer. The mode of acquisition may be three kinds:

1. Absolute- When the object that is acquired has no previous owner
2. Extensive- when a person by some acts on his ownership of the previous owner and acquires its ownership himself
3. Accessory – when the ownership of a property is acquired by way of accession to some existing property

Derivative when the ownership is derived from a previous owner Like in the form of gift, inheritance etc.

Difference between Ownership and Possession :

Ownership and possession are two distinct legal concepts in jurisprudence. Ownership refers to the legal right to possess, use, and dispose of an object, while possession refers to the physical control or occupancy of an object. Some other differences between possession and ownership are as follows-

Conclusion:

From the above discussion, it can be concluded that understanding these differences is crucial in legal matters. Ownership and possession look similar or as synonyms in general language, but they are different in jurisprudence as Ownership grants legal rights and control over assets, while possession refers to physical control without full legal entitlement.

References:

Ownership, Essential of ownership and different kinds of ownership in English jurisprudence (lawandlegislation.blogspot.com)

Essential Characteristics of Ownership | Law column

https://legalvidhiya.com/ownership/

https://lawbhoomi.com/ownership-in-jurisprudence-meaning-kinds-incidents-and-relevance-in-contemporary-times/

https://allindialegalforum.com/2020/10/21/possession-and-ownership-and-person/

The Concept of Possession- its meaning, elements, kinds, and modes of acquisition (legalserviceindia.com)

Concept of possession and ownership - iPleaders

IMPACT OF SOCIAL DEVELOPMENT ON LAW

A society cannot remain static. It keeps on moving with economic, social, technical, political development. Therefore, law in other to meet the changing needs of the society keeps itself updated to march with it. 

Positive contribution of social development on law in India

Indian legal system has undergone various changes and reforms to address social issues and has move to progressive state where social justice is promoted like abolishment sati system, child marriage, untouchability, etc. This evolution has profound impact of social development on Indian legal system. Some other examples which reflects social development on law are as follows-

Uniform Civil Code 

The demand for a UCC reflects the impact of social development on law. As society evolves, peoples’ thinking changes too, which results in equality and unity.

In Lily Thomas vs Union of India (2000) SC in regard to uniform civil code under article 44 of Indian constitution held that the government should try to have the same civil laws for everyone. But the court also understands that this issue is very complex as India has different cultures religions and language. Therefore, changes should be made gradually and not by force.

Triple talaq 

With the awareness and equality education also plays a vital role in development of the society and in a progressive society women also demand their equal rights and to live a life with dignity, one such case which showed this is Shayara Bano vs Union of India also known as triple talaq case in the instant case triple talaq was held unconstitutional.

Adultery under section 497 of Indian penal code

 With developing nation, the society is to move from the patriarchal and recognizing the autonomy and agency of women in relationship. In Joseph shine vs union of India the SC held the punishment of section 487 of IPC unconstitutional, this judgment reflected the evolving social norms and court's commitment to uphold equality. 

Same-sex relationships 

With the changing society the need to recognize and protecting the rights of every person irrespective of their gender not just for man or women but also for the third gender. One such example of this was decriminalizing consensual same-sex relationship by declaring section 377 of Indian penal code unconstitutional by the SC in Navtej Singh Johar vs union of India and current pending case of Supriya Chakraborty vs Union of India for same-sex marriage. 

Conclusion

Thus, from the above discussion it can be held that law without social acceptance is ineffective, therefore social development influences the shaping of law as changing societal values demands for legal reforms.  

References

Indian Kanoon - Search engine for Indian Law

LL.M. II SEM (LAW AND SOCIAL TRANSFORMATION) L-2003 TOPIC- Law as an intrument of social change new.pdf (ccsuniversity.ac.in)

Law And Social Transformation English, G.P. Tripathi

Impact of Lily Thomas case and Rahul Gandhi controversy

Impact of Lily Thomas case and Rahul Gandhi controversy

Corruption and criminalization have undermined trust in India’s democracy. Politicians with criminal records holding public office have become a major concern. The need to address the disqualification of such politicians is crucial to restore faith in the democratic system and uphold. 

Meaning of Disqualification: 

"Disqualification" means that a person is disqualified from being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. 

 

Section 8(3) of the Representation of People Act, 1951: 

A person convicted of any offence and sentenced to imprisonment for not less than two years other than any offence referred to in sub-section (1) or sub-section 

(2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. 

 

Section 8(4)of the Representation of People Act, 1951: 

Notwithstanding anything in sub-section (1), subsection 2 and sub-section (3) a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court. 

Defamation

Defamation in general refers to an act of making false statements about someone to harm their reputation.

Defamation is of two kinds:

Libel 

Slander

Libel

If the statement is made in writing and published in some permanent and visible form, then the defamation is called libel.

Slander

If the statement is made by some spoken words then the defamation is called slander.

Defamation in Indian law

Defamation in India is addressed through both criminal and civil law. Under the criminal law, the Indian Penal Code, sections 499 to 502 deal with defamation. If someone is found guilty of defamation, they may face punishment in the form of a fine, imprisonment, or both. On the other hand, the civil law aspect, known as the Law of Torts, focuses on providing compensation to the victim of defamation. Unlike criminal law, which involves punishment, the civil law system aims to remedy the harm caused to a person’s reputation by awarding compensation.

Definition of defamation as per IPC SECTION 499 

Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Lily Thomas vs Union of India & Ors on 10 
July, 2013, (Bench: A.K. Patnaik, Sudhansu Jyoti Mukhopadhaya): 

Social activist Lilly Thomas filed a writ petition (No. 231 of 2005), challenging the constitutional validity of Section 8(4) of the Representation of People Act, 1951, which allowed convicted lawmakers (conviction carrying a sentence of at least two years of imprisonment) to continue in office if they filed an appeal within three months of their conviction. 

 

Decision: 

The Supreme Court held that Section 8(4) is "ultra vires" to the constitutional provisions. 

 

Rahul Gandhi controversy: 

Rahul Gandhi, a prominent leader of India's main opposition Congress party, was recently disqualified as a Member of Parliament (MP) after being found guilty of defaming Prime Minister Narendra Modi with a conviction of two years according to sections 499 and 500 of the IPC. The court convicted Mr. Gandhi for his remarks made during an election rally in 2019, where he had commented on PM Modi's surname which resulted in defamation of modi community. Due to Lily Thomas case, he will no longer hold his seat as an MP from Wayanad in the state of Kerala, even though he had a chance to appeal within 30 days to a higher court. 

 

Analysis: 

The landmark Lily Thomas vs UOI judgment for the disqualification of convicted lawmakers is a significant step in the fight against corruption and criminalization of politics in India. The recent disqualification of Rahul Gandhi highlights the disqualification of lawmakers to ensure that those convicted of criminal offenses cannot hold public office. 

 

References 

Lily Thomas vs Union Of India & Ors on 10 July, 2013 indiankanoon.org

Rahul Gandhi Lok Sabha disqualification: What is the Lily Thomas judgement? msn.com

The Representation of the People Act, 1951. indiankanoon.org

India Code: Section Details 

Rahul Gandhi disqualified as MP after conviction in defamation case - BBC News  

All about section 498A under the Indian penal code

Section 498A husband or relative of husband of a women subjecting her to cruelty

Introduction

In our male-dominated world, the status of women has long been overshadowed by the perceived superiority of men, granting them immense power to harass, molest, and defame women. However, with the passage of time, society has undergone a transformation, recognizing the importance of equality. The status of women now stands on par with men, and they are protected by various Acts. Nonetheless, a significant challenge persists, as the concept of guardianship places women under the control of their fathers before marriage and transfers that power to their husbands after marriage. Unfortunately, this arrangement often paves the way for exploitation, mental anguish, and physical abuse. To address this pressing issue, several Acts have been enacted in India, and one such crucial legislation is Section 498A.

Importance of Section 498A

Section 498A of the Indian Penal Code is a significant legal provision that addresses the prevalent issue of domestic violence and cruelty faced by married women. It recognizes the need to protect women from physical, mental, and emotional abuse within the institution of marriage. This has had a profound social impact by raising awareness about the rights of married women and encouraging them to come forward and report instances of cruelty and harassment. It has given a voice to countless victims who were previously silenced and has contributed to a change in societal attitudes towards gender-based violence.

What is cruelty 

In broadest sense the word Cruelty is behaviour that deliberately causes pain or distress to people or animals. However, the interpretation of cruelty can vary depending on numerous factors such as social status, education, environment, and customs.

 In the context of Section 498A, cruelty encompasses not only physical harm but also mental and emotional harassment that surpasses the limits of endurance.

 Meaning of cruelty as per Explanation under section 498A

• A willful conduct which is of such a nature as is likely to drive the women to commit suicide or to cause grave injury  or damage to life, limb or health whether mentally or physically of the women, or
• Harassment of the women where such harassment is which a view to coercing her or any person related to her to meet any unlawful demands for any property or valuable security or is on account of failure by her on any person related to her to meet such demands.

Punishment 

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine, whereas the maximum sentence provided under Section 4 of the Dowry Prohibition Act is two years and with fine. Section 498A is a cognizable, non-compoundable, and non-bailable offense.

Addressing Misuse and Protecting the Accused

Due to the potential for abuse of Section 498A it was rightly held in the case of Arnesh Kumar vs. State of Bihar & Anr, the Supreme Court issued guidelines to prevent automatic arrests in cases under Section 498A of the Indian Penal Code. The court directed police officers not to arrest individuals automatically, unless there are valid reasons. The accused must comply with a notice issued by the police, and if they do, they should not be arrested unless there are recorded reasons for doing so. The guidelines aimed to reduce the misuse of the law and protect individuals from arbitrary arrests. These directions were applicable to cases where the punishment could be imprisonment for a term up to seven years.

Continuous Evaluation and Amendments

It is essential to regularly evaluate the effectiveness of Section 498A and make necessary amendments to address any shortcomings or loopholes. This evaluation can be done through comprehensive research, data analysis, and engaging with experts in the field. By continuously improving the legal framework, the aim is to provide better protection to married women and prevent any misuse of the law.

Withdrawing a 498A Case

Since 498A section is non-compoundable 498A can not be withdrawn but if the husband filed a Quashing petition, wife can file her consent affidavit resulting in the quashing of 498A and this is the best way can 498a case be withdrawn. The same was followed in the latest Supreme Court judgment on 498A in 2022 Satender Kumar Antil v. CBI

Jurisdiction in Complaints Related to Section 498A

Rupali Devi vs. State of UP In this case of three Judge bench comprising CJI Ranjan Gogoi, Justice L. Nageswara Rao and Justice Sanjay Kishan Kaul considered that if a wife leaves her husband's home because of cruelty from him or his family, the court in her new location may have the power to handle a complaint against them under Section 498A of the Indian Penal Code.

Role of NGOs and Support Systems

Alongside the legal provisions, various non-governmental organizations (NGOs) and support systems have emerged to provide assistance, counseling, and shelter to women affected by cruelty within marriage. These organizations play a crucial role in empowering women, advocating for their rights, and helping them navigate the legal process.

Conclusion 

With a view from the above information, it can be rightly concluded that Section 498A of the Indian Penal Code is a powerful shield against domestic violence. Continuous evaluation and collaboration with NGOs are crucial to ensure its effectiveness and protect victims from abuse within marriage.

References 

K.D. Gaur, Central Law Publications

Cruelty definition and meaning | Collins English Dictionary (collinsdictionary.com)

Latest Supreme Court Judgment on 498A [2022] | SCC Blog (scconline.com)

All you need to know about Section 498A of the IPC - iPleaders

Section 498A IPC : Recent Supreme Court Judgments (livelaw.in)

Indian Kanoon - Search engine for Indian Law

SECTION 498A IPC (INDIAN PENAL CODE) - POWERFUL BUT.. (shreeyanshlegal.com)

Article 16 Of The Indian Constitution

Article 16

Equality of opportunity in matters of public employment –

In the aftermath of India's independence in 1947, the focus was on ensuring that every individual was treated equally and with dignity. Human rights became a key concern in the country, and efforts were made to uplift weaker sections through education and employment. Article 16 of the Indian Constitution is an extension of Article 14, which guarantees the right to equality before the law and equal protection of the laws. Article 16 specifically prohibits discrimination in matters of employment or appointment to any office under the State on the grounds of religion, race, caste, sex, or place of birth. It aims to ensure that every individual has an equal opportunity to employment and public office.

Scope-

Article 16 ensures equal opportunity in public employment, prohibits discrimination, and allows reservation for disadvantaged groups but its scope is limited to citizens of India.

Key features of Article 16 include:

1. It is available only to citizens of India.
   
   
2. It relates to matters of employment in the public sector.
   
   
3. It provides grounds for discrimination in employment.
   
   
4. Parliament has the power to make residence a ground for discrimination.
   
   
5. It provides reservations for backward classes, scheduled castes, and scheduled tribes.
   
   
6. It allows reservations in promotions.
   
   
7. It provides grounds for carrying forward vacancies.
   
   
8. It prohibits individuals of other religions from entering an office of a different religious institution.
   
   
9. There is a ceiling limit of 50%.
   
   
10. It provides reservations for economically weaker sections.
    
    
11. It includes the concept of the creamy layer.

Article 16 in detail-

Article 16(1) states that every citizen shall have an equal opportunity to be considered for employment or appointment to any public office under the State.

Article 16(2) provides the seven grounds on which discrimination in employment or appointment to any public office under the State is prohibited, namely:

1. Religion

2. Race

3. Caste

4. Place of birth

5. Sex

6. Descent

7. Residence

Article 16(3) provides an exception to Article 16(2) by allowing Parliament to enact a law that permits discrimination based on residence for employment or appointment to any office under the control of the State, Union Territory, local authority, or other specified authority.

Article 16(4) states that the reservation in employment or appointment can be made by the state in favour of-

•  Any Backward class of citizens
• Not adequately represented in the services under the state

Article 16(4A) states provides reservation in promotion for Sc/St it was added by 77th amendment act

Article 16(4B) provision added by 81th amendment act. It states the concept of carry forward of unfilled posts. I.e., if there are vacancies reserved for certain categories in a particular year, and if they remain unfilled, they can still be considered separately for the next year's recruitment process, without being counted towards the 50% reservation limit for that year.

 Article 16(5) prohibits individuals of other religions from entering an office of a different religious institution.

Article 16(6) provides reservation of 10 per cent to economic weaker sections

Case laws relating to article 16

• Balaji vs State of Mysore: In this case, the Supreme Court held that the reservation of seats for backward classes in educational institutions should not exceed 50% of the total seats available. The court also ruled that the concept of creamy layer should be applied to ensure that only the truly deserving among the backward classes benefit from such reservations, as per Article 16(4) of the Indian Constitution.

• Devdasna vs Union of India: This case dealt with the issue of the creamy layer and reservation in promotions for government employees. The Supreme Court held that the concept of creamy layer should also be applied to promotions and not just to initial appointments, as per Article 16(4A) of the Constitution. The court also clarified that reservation in promotions can only be made after a detailed analysis of data on the representation of different communities in various categories of posts.

• Mandal Commission: This Commission was set up in 1979 to identify socially and educationally backward classes in India and recommend measures for their upliftment. The Commission recommended 27% reservation for OBCs in government jobs and educational institutions, which was later implemented by the government through the 76th Amendment to the Constitution in 1994, under Article 16(4A).

• Indra Sawhney vs Union of India: This case is popularly known as the Mandal Commission case. The Supreme Court upheld the constitutional validity of the 27% reservation for OBCs recommended by the Mandal Commission, but also imposed certain conditions and limitations on its implementation. The court held that reservations in promotions can only be made after a detailed study of backwardness and inadequacy of representation, and that the total reservation in any given situation should not exceed 50%, as per Article 16(4) of the Constitution.

• Jan hit Abhiyan vs Union of India: in the instant case validity of the 103rd Amendment Act of the Constitution of India was challenged. The 103rd Amendment Act was passed by the Indian Parliament in 2019 and provided for the reservation of seats for economically weaker sections (EWS) of society in educational institutions and public employment.
  The case was heard by a five-judge bench of the Supreme Court of India, and the majority opinion (3:2) held that the 103rd Amendment Act was valid and held that the amendment was a valid exercise of the Parliament's power to amend the Constitution under Article 368, and that the reservation for EWS was not based on caste or religion and therefore did not violate the basic structure of the Constitution however, the minority opinion(dissenting opinion) disagreed with the majority and held that the amendment violated the basic structure of the Constitution as it exceeded the 50% cap on reservations set by the Supreme Court in the Indra Sawhney case. The minority opinion also raised concerns about the lack of data and empirical evidence supporting the need for EWS reservations.

Conclusion

Indian Constitution's Article 16 guarantees equality of opportunity in public employment and prohibits discrimination based on various factors. Reservation is allowed for backward classes, scheduled castes, tribes, and economically weaker sections. Discrimination based on residence is permitted if allowed by Parliament. Article 16(5) prohibits people from other religions from entering an office of a different religious institution.

References

Indian Kanoon - Search engine for Indian Law

Article 16 of the Indian Constitution - iPleaders

Article 16 of Indian Constitution

Article 15 of the Constitution of India - Wikipedia

Article 16: Equality of opportunity in matters of public employment - Constitution of India

Mandal Commission - Wikipedia

Janhit Abhiyan vs. Union of India, 2022: Case comment (lawbhoomi.com)

DPSP AND FUNDAMENTAL RIGHTS CONTROVERSY

 

The Indian constitution is a unique document that lays down the fundamental principle and values that governs the state one of the critical features of Indian constitution is fundamental rights and directive principles of state policy covered under article 12-35 of part iii and article 35-51 of part iv in Indian constitution.

DPSP AND FUNDAMENTAL RIGHTS: STRIKING A BALANCE

Fundamental rights are the rights which gives guarantee to the rights and freedom of people and citizen that ensures personal liberty and dignity subject to some restriction. On the contrary the DPSP’s are the guidelines which must be followed by the lawmakers while formulating the law. This novel feature was adopted from Irish constitution which is copied from the Spain.

Difference Between Fundamental Rights and directive principles of the state policies

1. Constitutional Provision:
   DPSP is covered under Part IV of the Indian Constitution, while FR is covered under Part III.
2. Nature of Provision:
   DPSP sets guidelines and principles for the government to follow in making laws and policies, while FR prescribes fundamental rights and liabilities of citizens.
3. Instrument of Institution:
   DPSP is an instrument for the institution of the government, while FR places limitations upon state actions.
4. Enforcement:
   DPSP is not enforceable by the courts, while FR is enforceable by the courts.
5. Type of Provision:
   DPSP consists of positive commands, while FR consists of negative liabilities.

Relationship between the fundamental rights and DPSP’s

The relationship between the two has be well interpretated by the following case laws which are as follows:

Champakam Dorairajan Vs State of Madras
In the instant case madras government passed an order which fixed quotas for admission to engineering and medical colleges under article 15(4). The order was challenged on the grounds of 15(1) of which government replied that the order was passed under article 46. However, the court held that the DPSP are subsidiary to the fundamental rights because the latter are enforceable and the directive principles cannot override the fundamental rights and held order was invalid.

Re Kerala Education Bill
The Re Kerala Education Bill case was about a law that required all private schools to be taken over by the government. Some schools challenged the law, saying it violated their right to run their own schools.
The court said that Directive Principles of State Policy (DPSPs) cannot override fundamental rights, but the court can use both principles to interpret the law. The court said that when interpreting the law, it should try to find a way to balance both DPSPs and fundamental rights as much as possible.

Golak Nath vs State of Punjab
In this landmark case, the Supreme Court held that Parliament cannot amend the fundamental rights of citizens. The petitioner challenged the validity of the Constitution (17th Amendment) Act, 1964, which sought to take away the right to property as a fundamental right. The Court held that the amending power of Parliament under Article 368 did not extend to the fundamental rights enshrined in Part III of the Constitution. However, after this case, the government introduced the 24th and 25th Constitutional Amendments in 1971, which added Article 31C to the Constitution. Article 31C provided that any law made to implement the Directive Principles of State Policy (DPSP) would not be void on the ground of inconsistency with the fundamental rights.

Keshavananda Bharti Vs State of Kerala
This case is famous for introducing the concept of the "basic structure" of the Constitution. The petitioner, a spiritual leader, challenged the Kerala Land Reforms Act, 1963, which imposed a ceiling on landholdings. The Supreme Court held that the DPSPs are an integral part of the Constitution and must be given due importance. The Court further held that the power of Parliament to amend the Constitution was not unlimited and could not be used to violate the basic structure of the Constitution, which includes fundamental rights. The Court held that Article 31C, which had been introduced after the Golak Nath case, was unconstitutional. However, after this case, the government introduced the 42nd Constitutional Amendment in 1976, which widened the scope of Article 31C to include not only laws made to implement the DPSPs but also laws made for securing the "socialist" objectives of the Constitution.

Minerva Mills vs Union of India (1980):
In this case, the Supreme Court attempted to strike a balance between fundamental rights and DPSPs. The petitioner challenged certain provisions of the Constitution (42nd Amendment) Act, 1976, which had curtailed the power of judicial review and had given wider powers to the Parliament to amend the Constitution. The Supreme Court held that fundamental rights and DPSPs are both integral parts of the Constitution and that one cannot be considered superior to the other. The Court held that any law made to implement the DPSPs must not violate the basic structure of the Constitution, which includes fundamental rights. The Court also held that the power of judicial review is an essential feature of the Constitution and cannot be taken away by the Parliament. The Court struck down the offending provisions of the 42nd Amendment, thereby upholding the supremacy of the Constitution.

Current scenario

The sequence of who will prevail first is as follows-

1. Fundamental rights, except for the 14th and 19th.

2. Directive Principles of State Policy (DPSP) under article 39(b) and (c).

3. Other fundamental rights.

4. Other DPSP.

Conclusion
The controversy surrounding DPSP and fundamental rights in the Indian Constitution has been resolved by balancing both principles.

References

I.C. Golak Nath And Ors. vs State Of Punjab And Anr. on 27 February, 1967 (indiankanoon.org)
Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April, 1973 (indiankanoon.org)
Minerva Mills Ltd. & Ors vs Union Of India & Ors on 31 July, 1980 (indiankanoon.org)
https://blog.ipleaders.in/difference-between-fundamental-rights-and-directive-principles
https://www.legalbites.in/directive-principles-and-fundamental-rights
In Re: The Kerala Education Bill, ... vs Unknown on 22 May, 1958 (indiankanoon.org)
Difference between Fundamental Rights and Directive Principles of State Policy & Their Comparisons (byjus.com)
Fundamental Rights, Directive Principles and Fundamental Duties of India - Wikipedia
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Hart and Fuller Debate: The Relationship Between Law and Morals

Throughout history, there has been a debate about the relationship between law and morals. In different periods, societies have described this relationship in various ways. This essay will explore the Hart and Fuller debate, which is a famous discussion about the relationship between law and morals in modern times. Before that, we will briefly describe the historical development of the relationship between law and morals.

• Ancient Times

In ancient India, Hindu law had no distinction between law and morals. Later, in Mimansa, certain principles were laid down that distinguished between obligatory and recommendatory actions. In ancient Greece, natural law was based on morals. The same was true for ancient Rome, where natural law was also based on morals.

• Middle Ages

During the Middle Ages, the church was the main source of law in Europe, and its laws were based on morals (the Bible).

• 19th Century

In the 19th century, the analytical school of thought emerged, which believed that law had nothing to do with morals. Jeremy Bentham, a famous philosopher, solved this question by stating that law has the same center as morals but not the same circumference.

• Modern Times

In modern times, there is a clear distinction between law and morals. However, the relationship between the two is still debated. The Hart and Fuller debate is an example of this.

H.L.A. HART And LON. L FULLER

The controversy between positivism and naturalism revolves around the question of what law ought to be versus what law as it is. This debate began with H.L.A. Hart's journal "Positivism and the Separation of Law and Morals", to which Lon L. Fuller responded with "Positivism and Fidelity to Law". The ongoing debate between these two legal theorists continued with their respective books "The Concept of Law" and "The Morality of Law".
Hart's concern was that law and morals are distinct, and he gave three critiques of natural law theory. First, he argued that John Austin's theory of command was a better explanation of the nature of law than natural law theory. Second, he introduced the concept of "penumbra", which refers to the idea that there are areas of law where there is no clear answer and where judges must use discretion to determine what the law is. Finally, he argued that there may be morally bad laws, but that does not mean they are not laws.
Fuller, on the other hand, argued that judges should decide what the law is based on a basic code of rationality, rather than solely on what the law ought to be. According to Fuller, a law is not a law if it does not follow this basic code. This basic code is not necessarily based on morality, but it is grounded in reason.

Nazi informer case :

The defendant reported her husband for making derogatory remarks about Hitler during WWII, resulting in his death sentence. After the war, the wife was found guilty of using Nazi laws to deprive her husband of his freedom. The judge who sentenced the husband was acquitted.

Hart Views:

• He argued that the Nazi laws were valid because they were created and enforced by the state.
• From a legal positivist perspective, the morality of the Nazi laws is irrelevant if they were created and enforced according to the rule of recognition.

Fuller Views:

• He argued that the Nazi laws were invalid because they violated fundamental moral principles.
• From a natural law perspective, the Nazi laws were unjust and immoral because they violated the principles of human dignity, equality, and respect for individual rights.
  

Shyam Chouksey case (2017):

the Shyam Chouksey case in India addressed the mandatory playing of the national anthem in cinema halls. 

The Supreme Court drew on the legal debate between H.L.A. Hart and Lon Fuller, citing Fuller's principles of promoting social goals and procedural fairness. Some criticized the decision for violating individual freedom.

Conclusion

The debate about the relationship between law and morals has occurred throughout history. The Hart and Fuller debate is an example of this tension. Hart says law and morals are different, while Fuller thinks a law must follow basic morality to be valid.

References

Hart–Fuller debate - Wikipedia
B.N. Mani Tripathi

http://www.ijlljs.in/wp-content/uploads/2017/04/Jurisprudence_draft.pdf

https://lawogs.co.in/index.php/2021/12/22/morality-and-law-hart-fuller-debate/

https://blog.ipleaders.in/all-about-law-and-morality/

Article 12 in The Constitution Of India 1949

The term "state" has different meanings depending on the context in which it is used. According to the Cambridge dictionary, a state is defined as a part of a large country with its own government, such as in Germany, Australia, or the US. However, in the Constitution of India, the term "state" has a much wider meaning, which is defined under Article 12 and 36 respectively. Article 12 is related to fundamental rights, whereas Article 36 is related to directive principles of state policy. In this article, we will delve deeper into the various interpretations and implications of the term "state" in the Indian context.

Article 12 Under Part III of The Constitution Of India 1949 

Definition In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

Meaning

Article 12 of the Indian Constitution is a unique provision that expands the definition of "State," which includes the following.

1. The Government and Parliament of India,
   
   
   This refers to the central government of India, which comprises of the President, Vice-President, Prime Minister, Cabinet Ministers, and other government officials. The Parliament of India is made up of the Lok Sabha (House of the People) and the Rajya Sabha (Council of States). Additionally, all departments established by the central government are also included under this definition.
   
   
2. The Government and Legislature of each state in India,
   
   
   This point refers to the state governments of India, which have their own elected Chief Ministers, Council of Ministers, and State Legislatures. It also includes the Union Territories of India.
   
   
3. Local authorities
   according to General Clauses Act section 3(31) “local authority” shall mean a municipal committee, district board, body of port Commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund. 
   
   
4. Other authorities,
   It has been interpreted by various case laws some of them are as follows-
   

University of Madras v. Shanta Bai (1954)-

The court applied the principle of ejusdem generis, which means "of the same kind and nature," and held that only those authorities performing government or sovereign functions are covered under the ambit of the state. Hence, the University of Madras is not considered a state in the case of University of Madras v. Shanta Bai (1954). However, this approach to interpretation was rejected in the case of Ujjam Bai v. State of Uttar Pradesh (1963).

Rajasthan Electricity Board v. Mohan Lal (1967), 

In the case of Rajasthan Electricity Board v. Mohan Lal (1967), the court held that the term "other authority" would include all authorities created by the constitution or statute, and that such authorities need to be engaged in performing government or sovereign functions. Based on this interpretation, the court held that a university is also a state.

Som Prakash Rekhi vs Union Of India(1980)

The question in this case was whether Bharat Petroleum (BPCL), a company acquired by the central government, is considered a "State" as defined in Article 12 of the Constitution, even though it is registered under the Company Act.

In the instant case, the Supreme Court held that Bharat Petroleum (BPCL), is considered a "State" as defined in Article 12 of the Constitution. Further, The court has laid down tests to determine if a body is considered a State under Article 12, including:

• government holding the entire share capital

• state financial support and control over management

• deep and pervasive state control

• state-conferred or protected monopoly status

• performing important public functions related to government

• transfer of a government department to the corporation.
  

R.D. Shetty vs airport Authority of India (1979)

the Supreme Court of India held that an entity could be considered an "authority" under Article 12 of the Indian Constitution if it is a government agency or instrumentality, regardless of its legal form. As a result, the International Airport Authority of India was considered a "State" under Article 12 and was bound by the fundamental rights guaranteed under the Indian Constitution. Further, Justice P.N Bhagwati gave 5 Point test This is a test to determine whether a body is an agency or instrumentality of the state and goes as follows –

1. Financial resources of the State, where State is the chief funding source i.e. the entire share capital is held by the government.
2. Deep and pervasive control of the State
3. The functional character being Governmental in its essence, meaning thereby that its functions have public importance or are of a governmental character.
4. A department of Government transferred to a corporation.
5. Enjoys “monopoly status” which State conferred or is protected by it.

Zee Telefilms Ltd. & Anr vs Union Of India & Ors (2005)

Fact in Issue: Whether the Board of Cricket for Control in India (BCCI) is a 'State' under Article 12 of the Constitution of India?

The Supreme Court applied the tests laid down in R.D. Shetty vs International Airport Authority of India (1979) to determine whether BCCI is an instrumentality of the State and concluded that-

• The government's control over BCCI was not sufficient to make it a 'State'.

• BCCI did not receive significant financial assistance from the government.

• BCCI's monopoly status in the field of cricket did not make it a 'State' as it was not performing a public duty.

• BCCI's activities were primarily for commercial purposes and not for the benefit of the public.

Therefore, in the instant case held that BCCI is not a 'State' under Article 12.

A.R Antulay Vs. R.S Nayak(1988)

In the instant case, the Supreme Court of India held that the judiciary is considered a state while performing legislative and executive functions. This case reaffirmed the principle of separation of powers and emphasized the importance of maintaining the independence of the judiciary. However, in the case of Rupa Hurra vs Ashoke Hurra it was held that judiciary doesn't fall under the ambit of Article 12.

Conclusion

The word "state" has different meanings in different situations. In India's Constitution, for the purpose of fundamental rights, "state" is defined in Article 12 (Part III) to include the Indian Government and Parliament, state governments and legislatures, local authorities, and other authorities. Courts have established guidelines to decide whether an organization can be considered a "state.

References

Indian Kanoon - Search engine for Indian Law

Article 12 and 13 as the basis of Fundamental Rights  - iPleaders

'State' Under Article 12 of the Constitution - Drishti IAS

Analysis of the airport authorities under Article 12 of the Indian Constitution - iPleaders

India Code: General Clauses Act, 1897

Fundamental rights in India - Wikipedia