Category: India

NATIONAL mean a person owing allegiance to and entitled to the protection of a sovereign state. CITIZEN is preferred for one owing allegiance to a state in which sovereign power is retained by the people and sharing in the political rights of those people.  the rights of a free citizen SUBJECT implies allegiance to a personal sovereign such as a monarch.  the king’s subjects NATIONAL designates one who may claim the protection of a state and applies especially to one living or traveling outside that state.

HUMAN RIGHTS JURISPRUDENCE ‘THE INDIAN CONCEPT’

INTRODUCTION

A right is not a claim or demand but something which is not wrong. Natural Rights Theory as propounded by John Locke calls rights as pre-political which were available to man in his state of nature. These three human rights of life, liberty and estate were ensured to individuals by virtue of the ethical code of mutuality and moral order. The effort to safeguard, protect and promote basic Human Rights continues in every generation in every civilization. New rights arise from the roots of the old. Today we have broadened the field of Human Rights thought and action to new areas and population. The development of Human Rights and then recognition and protection is done with the support of Jurisprudence.

WHAT ARE HUMAN RIGHTS?

“The core of human rights discourse is that it is a right to which only human beings are entitled, which gives meaning to the essence of humanity, and without which humanity necessarily loses those special attributes that make it human”. Ajomo had earlier defined human rights in similar terms inter alia: “human rights are inherent in man; they arise from the very nature of man as a social animal. They are those rights which all human beings enjoy by virtue of their humanity”.

According to Joel Feinberg, “Human Rights as moral rights held equally by all human beings, unconditionally and unalterably” For Feinberg Human Rights are moral claims based on primary human needs.[1]

 Human rights are those liberties, immunities and assistance by which, through accepted contemporary values, all human beings should be able to demand the rights in the society which they live.

Human Rights are inherent rights which are made for protection, safeguard and development of humans all over the world and these rights cannot be waived off on someone’s will or whim. As said by some American Attorney, “If you remove them from any human being, he will become less than human. They are part of the very nature of a human being, and attach to all human beings everywhere in all societies, just as much as do his arms and legs.”

Human Rights are also defined as moral rights which every human being ought to have every time and everywhere which contrasts a being as moral and rational than the other. In other words, idea of human rights familiarize with morality and rationality but can be said as limitation or challenge to this definition, are new born, infants, juvenile, lunatics. These humans have rights but they lack sense of morality and rationality.

WHAT IS JURISPRUDENCE?

Jurisprudence originated from the Latin word ‘Juris-prudentia’, whereby ‘juris’ means law and ‘prudentia’ means skill or knowledge. Therefore, jurisprudence is skill or knowledge of law and its application. It covers the whole body of legal principles in the world. It deals with those relations of human and society which are regulated by law. It is a normative evaluation of basic legal values and ideas which impart validity and recognition to legal system.

 It is conceptional analysis between law and socio-political society, which provides significance to the legal system. Rapid changes in this progressive society has given birth to new issues and dynamic law, has lead to evolution of jurisprudence. In other words, evolution of society brings changes in the law to tackle the problems through pragmatic approach has given rise to functional jurisprudence i.e. law and justice.

Professor Gray defined, “Jurisprudence more or less in the same manner. He opined that jurisprudence is the science of law, the statement and systematic arrangement of the rules followed by the courts and the principles involved in these rules.”

HUMAN RIGHTS JURISPRUDENCE

Human rights are described as inalienable, fundamental, God-given etc. the basic purpose is that these rights are not created by constitution and other codes or any supreme authority but they have to declare and preserve those rights. This can be also said as human rights can exist as shared norms or human moralities which are supported and protected by strong reasons or as legal rights of a person.

Incidentally, human right generate from the realistic insight of ancient and medieval humanism. In the classical literature of
Prehistoric Greece from 5th century B.C. we come across a striking expression of the belief in the power exercised by the gods on human community which was based on law. According to the Ancient Greece writers, the god establishes a law which stand above the duties and prohibitions imposed by the rules of the community.

In Roman law there was dissimilarity between national law (jus civile) and the common law to all nations (Jus gentium). ‘Jus natural’ was the law of nature which is fixed and unchallengeable, higher to all human laws derived from the dictates of right reason.

In middle ages, a number of Acts were enacted to show the superiority of Human Rights. The principle of the Habeas Corpus Acts latent in the 39th clause of Magna Carta was acknowledged already in 1188 by Alfonso IX. Charters of liberty are steps towards the realization and implementation of Human Rights. Magna Carta of 1215, Petition of Rights of 1628; Habeas corpus Act of 1679, Bill of Rights of 1689 are some of such steps taken in England.

THE INDIAN CONTEXT

According to D.D. Basu, “Human Rights as those minimal rights which every individual must have against the State or other public authority by virtue of his being a member of the human family, irrespective of any other consideration”[2]

Development of jurisprudence and legal theory in India owes as much to ancient hindu legal thinkers as it owes to western jurists and legal philosophers. The ancient Indian legal thinkers expounded their own indigenous legal system which was based on sound principles of reasoning and human wellbeing and excelled in many respects from other legal systems of the world. Commenting on ancient Indian jurisprudence, Mayne observed:

“Indian law has the oldest pedigree of any known system of jurisprudence, and even now it shows no sign of decrepitude. At this day it governs races of men, extending from Kashmir to Capecomorin, who agree in nothing else except their submission to it.”

ANCIENT HUMAN RIGHTS JURIPRUDENCE

The positive law embodies certain values which holds universal validity, like Dharma (righteousness), Artha (wealth), Kama (desires), Moksha (salvation) were expounded by ancient Indian philosophers and thinkers years ago with a view to establish a cordial social order by striking a balance between inner and outer, spiritual and material aspect of life.

“Dharmasastras” and the “Arthasastras” and other legal treatises of the history have revealed an incredible system, which regulates the duties of Kings, judges, subjects and judicial as well as legal procedures. The ancient concept of Dharma enabled citizens to inculcate sense of discipline in conducting themselves in society. The message is “Dharma” as the absolute value, which fastens kings and citizens, men and women.

Human rights achieve meaning only when there is an independent judiciary to enforce rights. The administration of justice always remained separate from the executive; it is as a rule independent in structure and spirit. It was the Hindu judicial system that first realized and acknowledged the significance of the separation of the judiciary from the executive and gave this fundamental principle a realistic shape and form. The case of Anathapindika v. Jeta descript in the monastic rules of vinaya pitaka,’ is an unblemished demonstration of this principle. According to it, a Prince and a private citizen submitted their cases before court of law and the court decided against the Prince. The Prince accepted the decision as a matter of course and as binding on him. The evolution of the principle of separation of the judiciary from the executive was largely the result of the Hindu conception of law as binding on the sovereign.

As Nagendra Singh remarks, “The individual in ancient India existed as a citizen of the State and in that capacity he had both rights and obligations. These rights and duties have largely been expressed in terms of duties (Dharma) – duties to oneself, to one’s family, to other fellowmen, to the society and the world at large. The basis of ancient human rights jurisprudence was Dharma – the ideal of ancient Indian legal theory was the establishment of socio-legal order free from traces of conflicts, exploitations and miseries. Such a law of “Dharma” was a model for the universal legal order.”[3]

MODERN HUMAN RIGHTS JURIPRUDENCE

With the progress of Indian Society, Constitution of India came into force on 26th January 1950 with 395 Articles and 8 Schedules which is one of the most elaborate fundamental laws ever adopted. The Preamble to the Constitution declares India to be a Sovereign, Socialist, Secular and Democratic Republic. The term ‘democratic’ signifies that the Government gets its authority from the spirit of the people. It gives a feeling that they all are equal “irrespective of the  race, religion, language, sex and culture.” The Preamble to the Constitution pledges justice, social, economic and political, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and fraternity assuring the dignity of the individual and the unity and integrity of the nation to ail its citizens. With this evolution citizens are also expected to be self restrained and self disciplined and also conscious about their rights and duties.

The Indian Constitution in its Chapter Third envisaged seven fundamental rights with several Directive Principles for the establishment of a welfare polity in India. The 44th Amendment reduced them to six and accepted right to property as a mere legal (not fundamental) right of the citizen.

Similarly, several directives have been accepted as fundamental in the governance of the country. The rights to information, primary education and pollution free environment have come on the periphery of fundamental rights. As democracy matures in India, the judiciary is increasingly insisting on the development of human rights jurisprudence and the legal implementation of social legislation for the attainment of human rights in India.

Protection of Human Rights Act, 1993 there are certain legislations which directly or indirectly protect the Human Rights and Fundamental Freedoms of mankind in multidimensional approach. All these are in accordance with the mandate of Human Rights instruments as well as in accordance with the Constitutional provisions.

The Indian Constitution is a document rich in human rights jurisprudence. This is an elaborate charter on human rights ever framed by any State in the world. Part 3 of the Indian Constitution may be characterized as the ‘Magna Carta’ of India. The Judiciary in India plays a significant role in protecting human rights. The Indian 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 and the half-hungry, half-naked countrymen.

CONCLUSION

The concept of Human Rights Jurisprudence in India is prevalent from the ancient time and continues. There are certain legislations, which directly or indirectly protect the Human Rights and Fundamental Freedoms of humankind in multidimensional approach. All these are in accordance with the consent of Human Rights instruments as well as in accordance with the Constitutional Provisions.

[1] Joel Feinberg, “Social Philosophy”, 1973, Prentice Hall, N.J p. 85

[2] D.D Basu, “Human Rights in Constitutional Law”, 1994, Prentice Hall, Delhi, p. 5

[3] S.N. Dhyani, Fundamentals of Jurisprudence: The Indian Approach (Allahabad: Central Law Agency, 1992) Pg.79.

Promissory estoppel as a substitute to the consideration

The doctrine of consideration and promissory estoppel is a term used in contract law that deals with the bargaining condition of the contract.

The Doctrine of Promissory Estoppel

The doctrine of promissory estoppel is an equitable doctrine. It is a principal evolved by equity to avoid injustice to the parties. The true principal of promissory estoppel is where one party has by his worlds on conduct made to the offer a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go upon it is necessary for the application of the doctrine that one party has his position in reliance of the promise.in other words, promissory estoppel is a unilateral promise from one side and intended to induce some action by the other party. The promisee is note bound to act, for his gives no promisor to his promise. His act is at the same time an acceptance of and a consideration for the same. To attract the application of this doctrine, the following ingredient must be satisfied:

1)         That there was a promise in regard to something to be done in future.

2)         That the promise was intended to affect the legal relationship of the parties and to be acted upon accordingly.

3)         That it is one on which the other side has, in fact acted to its prejudice. 

The case of Hughes v. Metropolitan Railway[1] is known as a part of the origin of the doctrine. In the case the property owner gave his tenant the option of repairing the property in six months or face forfeiture. Under the lease, the owner, could make the tenant. Metropolitan Railway, do repairs on the building, so the tenant had six months to complete the repairs. Before the six months had transpired, the tenant proposed to the owner to buy the property. There were negotiations for the purchase of the property, but it wasn’t settled. After the six months expired, the owner sued the tenant for breach of contract and attempted to evict the tenant. The tenant had completed the agreed upon repairs past the six-month deadline. The owner was successful in suing the tenant, however, the appellate court overruled the decision. It was originally believed that the plaintiffs were trying to take advantage of the defendants by negotiating with them and then stalling, causing the six months to expire and then suing them. But that wasn’t true. They sued them because the six months had expired.

The ruling was that through their dealings, both parties made it inequitable to count the time of the negotiations as a part of the six months. The defendants relied on this promise, and therefore, it would be unfair to make them liable in this case. The implied promise is enough to allow estoppel to apply.

The Doctrine of Consideration

Consideration is defined under section. 2(d) of Indian Contract Act, 1872. The doctrine of consideration is defined as an act, or promise, of the price in which the other party is bought, and the entire agreements is then enforceable. The doctrine of consideration is important in all contracts, as it refers simply to an agreement that is legally enforceable.

However, it is important to note that there have been significant modifications to the pre-existing doctrine of consideration.

 In the case of Dunlop Pneumatic Tyre Co Ltd v Selfridge Ltd[2] the court held in a unanimous decision that Dunlop could not claim for damages in the circumstances. The court found that firstly, only a party to a contract can claim upon it. Secondly, Dunlop had not given any consideration to Selfridge and therefore there could be no binding contract between the parties. Lastly, Dunlop was not listed as an agent within the contract and could therefore not be included as a valid third-party who had rights to claim on the contract.

Promissory estoppel as a substitute to the consideration

The doctrine of promissory estoppel is an alternative to the doctrine of consideration. It refers to a contract that cannot be withdrawn because one party acted on the other parties’ promise. In most cases, one party was harmed or served injustice because of the broken promise that they relied on. The promissory estoppel acts as a legal shield against the other’s claim, even though they did not give any consideration.

The doctrine of promissory estoppel is the exception to the contract consideration rule. It implies that a contracted promise is enforceable by law even without any consideration present. It is important, however, to understand that the promissory estoppel can only be used as a legal defense and not to initiate a legal claim.

Promissory estoppel is an important doctrine in contract law in which a non-contractual promise lacking consideration rendered enforceable to avoid an injustice. Promissory estoppel arises when injustice can be avoided only by means of the enforcement of a promise that would otherwise be unenforceable for lack of consideration. It is usually applied in cases in which a party has relied on another party’s promise, and that party’s nonbinding promise will be enforced because to do otherwise would be unfair. Promissory estoppel is commonly used in the context of charitable donations. In some jurisdictions the charity must have reliance on the promise but in others reliance is not necessary.

[1] UKHL 1977 AC 439

[2] UKHL 1915 AC 847

Coercion under English Law and Indian Law- A Comparative Analysis

Under Section 15 of Indian Contract Act, 1872 –

“Coercion” defined – “Coercion” is the committing, or threatening to commit any act forbidden by the Indian Penal Code, or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. (45 of 1860).

Explanation.- It is immaterial whether the Indian Penal Code is or is not force in the place where the coercion is employed. (45 of 1860).

Coercion as defined under Section 15. It corresponds with most part with ‘Duress’, known to English Law.

Coercion comprises of the following two elements :

  1. Committing or threatening to commit an act which is contrary to law with the intention of causing any person to enter into an agreement ;
  2. Which compels an individual to act in an involuntary manner.

In case a contract is entered into by coercion, the contract shall be voidable under Section 19 of the Indian Contract Act, 1872.

Also, in case certain money has been paid or goods been delivered by the party to the contract under coercion, the same is recoverable under Section 72 of the Act.

Coercion: Voidable Contract

To cause any person to enter into an agreement is not necessary. It has been held in Purushottam Daji Mandalik v. Pandurang Chintaman Biwalkar[1] Plaintiff sued the defendant to set aside a sale-deed on he ground of coercion under Section 39 of the Specific Relief Act, 1963. Particulars of the coercion alleged were given in the plaint and further elucidated in the plaintiff’s deposition and supported by definite willingness to the effect that here has been open and violent abduction and severe beating to procure signature of the document. The contract was declared voidable.

Burden of Proof

The invalidating circumstances, which allege coercion must be stated by the party relying on the defence of coercion. Therefore, the aggrieved party which wants to set aside the contract will have to establish that the consent was obtained by coercion.

Duress

What the India Law calls coercion is called in English duress or menace. Duress is said to consist in actual or threatened violence or imprisonment of the contracting party or his wife, parent or child, inflicted or threatened by the other party or by one acting with his knowledge and for his advantage. Duress must be such as to cause immediate violence and also to unnerve a person with ordinary firmness of mind.

Test for Duress

The person who applies pressure to extract a promise from another is not allowed to excuse his wrongful behavior by using other reasons which the victim may have had for making the promise. In the case of Barton v. Armstrong[2], where the Court observed that it is enough that the pressure “was a reason (not the reason, nor the predominant reason nor the clinching reason) why the complainant acted the way he did.” In this case: A exerted pressure on B by threatening to kill B if he did not enter the agreement. There were other commercial reasons which might have induced B to enter into the agreement even in the absence of the threats from A. It was held that it was enough that A’s threat was a reason that contributed to the decision to enter into the agreement. It was not necessary to show that it was the prime reason.

DIFFERENCE BETWEEN COERCION AND DURESS

Coercion in India means committing or threatening to commit an act forbidden by the Indian Penal Code, duress under common law, consists in actual violence or threat of violence to a person. It includes doing of an illegal act against a person, whether it be a crime or a tort. Unlike coercion, duress is not confined to unlawful acts forbidden by any specific penal law like the Indian Penal Code in India.

Detaining a property or threatening to detain any property is also covered within the definition of coercion whereas duress is constituted by acts or threats against the person and not against his property.

India, coercion may proceed from a person who is not a party to the contract, and it may also be directed against a person who, against, may be a stranger to contract i.e. a third party.

Duress does not cover acts done by a party to the contract, or a person stranger to contract. In England, duress should proceed from a party to the contract and is also directed against the party to the contract himself, or his wife, parent, child, or other near relative.

[1] AIR 1968 SCR 705

[2] UKPC 1976 AC 104

India’s Healthcare Condition

Long before the virus invasion into India, the nation already suffered from a devastatingly poor healthcare system. With more corrupt systems in Public (government owned) hospitals where only miserable think of going while the middle or upper  middle and upper classes always seek for the genuine treatments at heavily priced private hospitals. Middle class economic sectors do end up with long term bank loans.

We’ve seen many cases in the past where private hospitals literally looted patient’s families, in some cases the patient was already dead while reaching the hospital and yet doctor’s kept the dead bodies for treatment and kept fooling the family by saying “we are doing the treatment and trying our best to save the patient”. All this was done just to add up bills for the families and friends of patient.

There’s a saying about doctors worldwide that they are a form of god who saves lives but this thought is questioned when some doctors commit the hideous sins ever known to humanity. This is happening even during the treatments of covid-19 specifically in India where many citizens are falsely reported covid positive and are admitted to expensive private medical institutes who charge hefty charges (8-12 Lakhs INR) from somebody who’s already negative from the virus contagion.

In many other cases where healthy citizens wrongly reported are admitted to hospitals and later their vital body parts viz. heart, kidneys, eyes, liver etc were removed for organ trade benefits. So how these doctors were able to do this and how still many are doing this right under the nose of government administrations. The answer comes to complete absence of investigation of each dead body, these doctors know it for sure that an alleged positive patient when claimed dead would be directly sealed into a body bag by the hospital workers. No policemen and neither family nor friends are allowed to have a sneak peek at the dead body. The dead body in a body bag is directly sent for cremation. This gives an upper hand for corruption and illegal organ trade.

Some 2.4 million Indians die of treatable conditions every year, the worst situation among 136 nations studied for a report published in The Lancet. Poor care quality leads to more deaths than insufficient access to healthcare–1.6 million Indians died due to poor quality of care in 2016, nearly twice as many as due to non-utilisation of healthcare services (838,000 persons).

“For too long, the global health discourse has been focused on improving access to care, without sufficient emphasis on high quality care,” Muhammad Pate, co-chair of the commission that produced the report, who is also chief executive of Big Win Philanthropy and former minister of state for health in Nigeria, said in a statement. “Providing health services without guaranteeing a minimum level of quality is ineffective, wasteful and unethical,” he said.

As the Indian government readies to roll out its ambitious national health protection scheme, the Ayushman Bharat Yojana, by the end of September 2018, the study’s findings are crucial.

“We need to better measure the quality of our health system as a composite entity rather than be merely content with certifying hospitals and laboratories,” said Srinath Reddy, president of the Public Health Foundation of India, a Delhi-based think tank, about the lack of mechanisms for monitoring quality in India. “Some elements of quality, mainly in maternal and child health, are being monitored under NRHM [National Rural Health Mission]. However, composite measures of the health system overall are unavailable,” he said.

Public accountability and transparency on health system performance are two ways to improve the quality of healthcare, the commission recommends.

Commonly used health metrics such as the availability of medicines, equipment and skilled attendants do not reflect quality of care and even “lead to false complacency about progress”, it says, proposing a dashboard of metrics that should be implemented by countries by 2021 to enable transparent measurement and reporting of quality care.

SEPARATION OF POWERS

INTRODUCTION

As said by Aristotle, “All constitutions have three elements, concerning which the good lawgiver has to regard what is expedient for each constitution. When they are well-ordered, the constitution is well-ordered, and as they differ from one another, constitutions differ. There is one element which deliberates about public affairs; secondly that concerned with the magistrates- the question being, what they should be, over what they should exercise authority, and what should be the mode of electing to them; and thirdly that which has judicial power.”[1]

Separation of power basically means distribution of the powers and authority as well as responsibilities and duties amongst the three pillars of our nation that is, the executive, the legislature and the judiciary. It deals with the function of each organ of the state and its inference on other organ. India is a quasi-federal country.

MEANING

The French thinker Montesquieu stated, early in eighteenth century, that moving power in the hands of only one organ or group of the government is tyrannical. In order to address this problem, he felt that the solution would be to place power in three separate three arms of government, namely the legislature, the executive and the judiciary. This would make it possible for each body to be autonomous of the other in such a way that there can be no encroachment or overlapping of powers and that there could be harmony that would help the smooth functioning of the government.

These words state the Doctrine of Separation of Powers as given by Montesquieu, “There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing laws, that of executing public resolutions, and of trying the causes of individuals.”

Understanding that the function of a government is to safeguard individual rights but recognizing that governments have traditionally been the principal violators of such rights, a number of measures to reduce that likelihood have been developed. One such measure is of the separation of powers.

The premise behind Separation of Powers is that if a single person or community has a considerable amount of control, they can become harmful to the general public. Separation of powers is a way to minimize the momentum of power in the hands of any group, making abuse and arbitrariness more difficult to be brought into practice. It is generally accepted that there is a tripartite structure of government authority and power:

(i) Legislature (ii) executive (iii) judiciary.

As per the theory of the separation of powers these three powers and functions of the government must always be kept separate in a free democracy, exercised by separate Government organs.

DOCTRINE OF SEPARATION OF POWERS

As explained by Wade and Philips, The Doctrine of Separation of Powers indicates 3 features to showcase the Powers of Government:

I. The same person should not form part of more than one of the three organs (i.e. Executive, Legislature and Judiciary) of the Government. For example, ministers should not sit in Parliament.

II. One organ of the Government should not control or interfere with any other organ of the Government in carrying out its functions. For example, judiciary should not be independent of executive.

III. One organ of the Government should not exercise the functions dispensed to any other organ. For example, ministers cannot be the part of law making body.

Separation of powers means delegation of powers for certain specified functions of the government. All the powers of the government have been conceived as falling within one or another of given three modules-

(1) The enactment of creation of laws

(2) The interpretation of the laws made

(3) The enforcement of those laws

Namely, legislative, judicial and executive. Government has been reckoned to be made up of tripartite structure having for their functions and such classification is known as classical division.

IMPORTANCE

As it is a very generally accepted fact that whenever a huge amount of power is given in the hand of any administering authority there are higher probabilities of corruption, maladministration and misuse of power. This doctrine aids in preventing the abuse of power.  This doctrine shields the individual from the arbitrary rule. The government is the violator and also safeguards individual liberty.

Basically, the importance can be summarized in the following points:

  • Terminating the authoritarianism, it safeguards the liberty of an individual.
  • It not only protects the liberty of the individual but also preserves the efficiency of the administration.
  • Focus on the requirement of independence of the judiciary
  • Prevent the legislature from enacting an arbitrary rule.

THE TRIPARTITE STRUCTURE

Model is divided into three branches of state. All have separate powers and responsibilities but are inter dependent on each other. Let’s know about these branches in brief.

Legislature:

It is the law making body of the country.

It is the basis for the functioning of the other two organs, the executive and the judiciary.

It is also sometimes accorded the first place among the three organs because until and unless laws are enacted, there can be no implementation and application of laws.

Executive:

The executive is the organ that implements the laws enacted by the legislature and enforces the will of the state.

It is the administrative head of the government.

Ministers including the Prime/Chief Ministers and President/Governors form part of the executive.

Judiciary:

The judiciary is that branch of the government that interprets law, settles disputes and administers justice to all citizens.

The judiciary is considered the watchdog of democracy, and also the guardian of the Constitution.

It comprises of the Supreme Court, the High Courts, District and other subordinate courts.

INDIAN CONSTITUTION AND SEPARATION OF POWERS

The doctrine of separation of powers is not accorded a constitutional status. Apart from the Directive principles laid down in Article 50 which enjoins separation of judiciary from the executive, the constitutional scheme does not embody any formalistic and dogmatic division of powers. In India we have parliamentary form of government where executive is very important part of legislature. We don’t follow this doctrine with rigidity but then the essential functions have been sufficiently differentiated and it is an assumption that one organ of the state will not perform the functions of another organ of the state. Every organ of the state has to perform the essential functions, i.e. the legislature must legislate, the executive must execute and the judiciary must adjudicate.

CONCLUSION

There is no clear difference between executive and legislative forms of government: the legislation that is enacted must always be enforced and executed, and a great deal of executive intervention involves new legislation. Although, judiciary is an independent body.

As such, division can be said to be an artificial division. This is borne out by the fact that there is presently no constitutional system with a comprehensive separation of powers where there is a distribution of the three functions between three independent bodies without overlapping or cross-coordination.

[1]Aristotle- Politics- BOOK 4- Part XIV

Covid-19 Impact on Indian Economy

Year of 2020 had been an omen for the entire world and India is no exception to dodge from this curse. Unemployment rose from 6.7% on 15 March to 26% on 19 April and then back down to pre-lockdown levels by mid-June. During the lockdown, an estimated 14 crore (140 million) people lost employment while salaries were cut for many others. More than 45% of households across the nation have reported an income drop as compared to the previous year. The Indian economy was expected to lose over ₹32,000 crore (US$4.5 billion) every day during the first 21-days of complete lockdown, which was declared following the corona virus outbreak. Under complete lockdown, less than a quarter of India’s $2.8 trillion economic movement was functional. Up to 53% of businesses in the country were projected to be significantly affected. Supply chains have been put under stress with the lockdown restrictions in place; initially, there was a lack of clarity in streamlining what an “essential” is and what is not. Those in the informal sectors and daily wage groups have been at the most risk. A large number of farmers around the country who grow perishables also faced uncertainty.

The Government of India announced a variety of measures to tackle the situation, from food security and extra funds for healthcare and for the states, to sector related incentives and tax deadline extensions. On 26 March a number of economic relief measures for the poor were announced totalling over ₹170,000 Cr. The next day the Reserve Bank of India also announced a number of measures which would make available ₹374,000 Cr. to the country’s financial system. The World Bank and Asian Development Bank approved support to India to tackle the coronavirus pandemic.

Businesses across the world namely hospitality, entertainment, aviation etc have seen a major negative impact. Various sports events such as IPL and Olympics have been postponed. Schools and colleges have been closed. The virus has also disrupted the functioning of various online giants such as Amazon. Countries such as USA, Italy and Spain are suffering the most since their death toll is very high. Factories, Restaurants, Pubs, Markets, Flights, Super Markets, Malls, Universities and Colleges etc. were shut down. Fear of corona virus has limited the movement of the individuals. People were not even going to buy the daily essentials and these all were somewhere impacting the economy of the world as a whole. The Organization for Economic Co-operation and Development (OECD)reveals that they have cut their expectation for global growth to 2.4% from 2.9%, and warns that it could fall as low as 1.5%.

India faces a huge decline in government revenues and growth of the income for at least two quarters as the coronavirus hits economic activity of the country as a whole. A fall in investor sentiment impacts privatization plans, government and industry. The lockdown in India will have a sizeable impact on the economy mainly on consumption which is the biggest component of GDP. India’s total electronic imports is equal to 45% that of China. Around 1/3rd of machinery and almost 2/5th of organic chemicals that India purchases come from China. For automotive parts and fertilisers China’s share in India’s import is more than 25%. Around 65 to 70% of active pharmaceutical ingredients and around 90% of certain mobile phones come from China to India.

On the upside, better news on vaccines and treatments, and additional policy support can lead to a quicker resumption of economic activity. On the downside, further waves of infections can reverse increased mobility and spending, and rapidly tighten financial conditions, triggering debt distress. The Geopolitical and trade tensions could damage fragile global relationships at a time when trade is projected to collapse by around 12 per cent.

Understanding Strict Liability

In tort, the liability of a person generally emanates from his negligence and therefore, if the person can be proved negligent then he is held liable. But this general principle of liability does not apply to any person who keeps hazardous substances in his premises or involves in hazardous activities. In that case, the person is invariably liable for the consequences of that act irrespective of the fact whether he was negligent or not. Such a principle is an exception to the general rule of “liability for fault”, it is called “Strict liability”. The principle was first laid down in Rylands v Fletcher and the exceptions to this rule are Plaintiff’s fault, Act of God or Act of the third party. The rule of absolute liability, on the other hand, is often defined as the rule of strict liability minus the exceptions of strict liability. According to this rule, if a person is involved in any hazardous activity and any person due to any accident which occurred during the carrying out of the hazardous activity is harmed, then person carrying out such activity will be held absolutely liable. In India, this rule evolved in the case of MC Mehta v Union of India. Under these acts, the liable person may be not have been involved in the act but will still be held responsible for the damage caused due to the acts.

Strict liability was established through the case of Rylands v Fletcher[1].

In the case, the defendant(Fletcher) was an owner of a mill in Answorth. He wanted to improve water supply for his mill therefore, he employed the services of independent competent Engineers to construct a reservoir. In course of excavation work they notices some old shafts and passages to defendant’s land but did not block them. When the water was filled in the reservoir it ran through the porus shafts and flooded the plaintiff’s (Rylands) coal mines on the adjoining land. The defendant did not know about the shafts nor was he told about them by the qualified Engineers who constructed the reservoir.[2]The plaintiff sued the defendant.

The issues raised were whether the defendant can be held at risk, regardless of the fact that the act of another person led to an element get away in the plaintiff’s territory? It was exceptional that there was no carelessness or expectation on part of the defendant.

The court held that the supplication of the defendant was dismissed, and he was held at liable for all the damages in Ryland’s mine. A rule was set in this case which states that, if a man keepers in his territory any hazardous thing, he will be at first sight held liable if it escapes and harms even if he was not careless in keeping it there. Regardless that the defendant had no blame or carelessness, he was held liable since he kept some unsafe thing on his territory and the said thing has gotten away from his property and caused harm.

There are certain qualifications which are required to decide whether a liability should be strict liability or not. It is only after these qualifications are satisfied can a liability be termed as “strict liability”. These qualifications include:

  1. Dangerous thing : This essentially implies that the defendant will be at risk when the thing got away from his territory was a dangerous thing. The word “dangerous” , in the context, implies that the thing can probably do any kind of mischief when it escapes.
  2. Escape : This essentially implies that the thing causing harm should escape from the territory of the defendant, and it should not be within the reach of the defendant once it escapes.
  3. Non-natural use of land : This essentially implies that for the use to be non-natural, it must be some special use that brings with it increased danger to others. It must not be ordinary use of land or use as is proper for the benefit of community.

Strict liability also includes certain exceptions in Strict Liability which are as follows:

  1. Plaintiff’s fault : If the plaintiff has any blame or any damage is caused then the defendant would not be held liable, as the plaintiff himself interacted with the dangerous thing.
  2. Act of God : This expression can be characterized as an occasion which is not under the ability to control of any human. Such acts happen solely because of characteristic reasons and cannot be anticipated even while practicing alert. The defendant, then, would not be held liable for the misfortune if the dangerous thing got away in the view of some unexpected and common occasion which could not have been controlled in any way.
  3. The Act of Third Party : This rule additionally does not make a difference when the damage is caused by a third party i.e an outsider. The outsider implies that the individual is neither a servant of the defendant, nor the defendant has any sort of agreement with him or control over their work. But in cases, where the act of the third party could have been taken care of by the defendant, he must take care. Else, he will be considered liable.
  4. Consent of the Plaintiff : This special case take the guideline of the maxim “volenti fit injuria”. Suppose if A and B are neighbors, and they share similar water source at the place of A, and if the water escapes and makes harm to B, he cannot claim damages, as A wouldn’t be obligated for the dam.

Thus, for tortious liability, whether the wrongful act was done intentionally, unintentionally or maliciously is generally immaterial as the main consideration in deciding these cases is whether the act complained by the plaintiff constitutes violation of any of his legal right. If it constitutes an infringement of the plaintiff’s legal right then the plaintiff will succeed and held to recover damages from the defendant but if there is no infringement then the case will be dismissed. The non-liability of defendant is also an indication that the alleged violation of right against the defendant has no legal existence.

[1] Rylands v Fletcher, 330 UKHL 1 (1868)

[2] N.V Paranjape , Law of torts and Consumer protection Law and Compensation under Motor vehicles Act, Central Law Pusblisher,ed.1

When Peta’s Credibility Questioned | Time to be a Wise Donar

PETA India, over the years, has earned itself the reputation of being a hypocrite of the highest order. They have been known to selectively target Hindu traditions and customs with religious zeal while giving other religions a free pass. The few occasions PETA India did manage to raise their voice, they quickly silenced themselves due to rousing opposition.

Recently PETA was questioned for its campaign of go-leather-free during the festival of Rakshabandhan. Suspicion was raised when there ad banner had referrings to Rakshabandhan and on the same banner they had mentioned in bold ‘go leather free’. Now the fact is during Rakshabandhan festival everything has to be purely Sanatan (Broader name of Hinduism) that is purely vegetarian. Anything made of leather would actually break the rituals of Praying.


But now, it appears PETA India has found another target. And it is columnist Shefali Vaidya. The NGO in cohorts with Congress and left-liberal trolls has embarked upon a concerted campaign against the columnist for calling out the hypocrisy of the supposed animal rights organisation with regards to Eid where animals are slaughtered and anti-cow leather campaign in times of Rakshabandhan.
However, the campaign against Shefali Vaidya has backfired on them terribly as netizens used the opportunity to expose their hypocrisy. It soon became evident that PETA India is more concerned about the criticism it faces on social media than actual physical attacks on its workers by Islamist mobs.
One social media user pointed out the time when PETA activists were assaulted by a Muslim mob in Bhopal in 2014 for campaigning for vegetarianism ahead of Bakr-Eid. The Police even registered a case under section 295A against three activists for allegedly outraging the religious sentiments of the Muslim community. For some reason, PETA India has been horribly quiet about the incident for some unknown reasons.
Others pointed out that three years after Bollywood actress Sonam Kapoor was awarded the title of PETA India’s ‘hottest vegetarian celebrity’, the daughter of Bollywood star Anil Kapoor had taken to consuming chicken and fish.
People also pointed out that less than a week after PETA India gifted Shilpa Shetty Kundra the ‘Hero to Animals’ award, the Bollywood actress could be seen on YouTube preparing a Roast Turkey recipe.
Then there was the case of Richa Chadha who PETA India heaped praises on for being ‘kind to animals’ but the actress was one of those individuals who was resolutely against the ‘beef ban’.
The most disingenuous sign of hypocrisy came from PETA India’s endorsement of Sonam Kapoor. While the Bollywood actress was awarded by the supposed animal’s rights organisation, she endorses products made of 100% animal skin.
Similarly, PETA conferred a ‘Hero to Animals’ award on actress Dia Mirza, who had earlier shared ‘Kachi Yakhni Ki Biryani’ recipe that is made of chicken or any other animal meat.
Why does PETA kill cats and dogs by the thousands instead of finding them homes? Simply, PETA does not believe in pet ownership. Ingrid Newkirk has called pet ownership “an abysmal situation.” She further elaborated on her goal for destroying the human-pet bond: “If people want toys, they should buy inanimate objects. If they want companionship, they should seek it with their own kind.”
“In the end, I think it would be lovely if we stopped this whole notion of pets altogether,” she has said.
Ridiculously, PETA has argued that outdoor cats should be summarily killed instead of allowed to live. In a 2014 interview with the Washington Post, Newkirk argued that outdoor cats would be better off dead because they might contract a future illness or be hit by a car in the future. In PETA’s twisted mind, it’s more humane to just euthanize the animals than for a hypothetical harm to befall them in the future. Similarly, PETA has also argued in court that elephants are better off being killed than living in American zoos where they are well cared for.
PETA’s pro-killing attitude is part of its core—and it should shock any animal lover.

Payment of Wages during Pandemic

‘If a free society cannot help the many who are poor, it cannot save the few who are rich’, quoted John F. Kennedy years before an epidemic like Covid-19 could have even been forecasted.

Starting from the Plague, a bacteria led pandemic to the Spanish Flu caused by a virus in 1918, the world has seen an invisible enemy mongering fear among the people. Though the epidemics did not change the patterns in people’s reactions but it outbreaks have certainly taught us about social distancing and responsibility. The response to the current pandemic, Novel Coronavirus Disease (COVID 19) has been no different. The current situation where the Government has been repeatedly asking people to be selfish about their loved ones and stay indoors is undoubtedly a decision in the public welfare as it stands as the only way to fight the issue. This infection with symptoms is frightening and can kill people in large numbers as evident in the developed countries but the epidemic is more threatening when thought of people it might affect without symptoms.

Looking back, the plague epidemic was certainly a major turning point in India’s public health system. The principles introduced were new then and vaccines developed turned the history of hospitalization in the country. But when it first came in Mumbai, there were only Social Service leagues and other voluntary organizations which did the work of supplying food and medicine to the needy. Thus, there was impression of hope and being taken care of even when the situation turned helpless.

The society is divided into sections and it is not unknown to anyone of the country. Even though the upper class can claim money not being important more than happiness, the lower class does not even know the meaning of happiness if there is no penny in the pocket. The lockdown period has pushed the lower class people, working under ‘no work, no pay’ policy to the extreme points of their lives so much that the deaths due to hunger can compete with the numbers of deaths due to the virus after a couple of months. The situation is similar to the Plague in a lot of ways, maybe it is time to change the principles and policies of the wage workers and mark it in the history once again.

Coronavirus pandemic is not a depression yet but it is a recession already. The country can easily fall back into a temporary economic crisis and technical point of actions can prevent permanent scars of depression. Compelling the payment of wages to the daily wage workers can be a measure that can instantly transform the social safety of the nation as once these workers lay off; there might be irreparable damages to the entire nation’s productive capacity.

The government has issued directions to the employers to pay wages on mere humanitarian grounds and, it is not only for the permanent workmen but for the contract workers as well. The Disaster Management Act, 2005 or the Epidemic Diseases Act, 1897 which specifically came into force after the epidemic in Mumbai does not guarantee any such direction to be in compliance with the statutory law. However, Central and State governments can take its measures accordingly and it is backed by the provisions. 

Though it has taken time but the Government has come up with ideas to deal with the situation. The government has strictly advised to support the country by paying wages without any consequential deduction in wages for this period. The direction is issued particularly for the casual or contractual workers. On non-payment, the employees can drive down morally to combat their fight. On such kind of a scene, India, as a country, would lose even if it manages to fight the virus.

But the circular is only an ‘advisory’ and has not been issued under any law, ultimately making it not binding on any person. As dealt in the judgment of Narendra Kumar Maheshwari v Union of India that any policy does not take the place of law. Even the legislation under the Disaster Management Act, 2005 does not prohibit any employer from terminating employees or to vary their terms of service. But it does mention securing employees as it requires them to be paid salaries in the course of business. There also lies a major difference between the terms, employees and workmen as pointed out in Dhrangadhra Chemical works Limited v State of Saurashtra. The matter stands important since a workman is entitled to retrenchment as well as other benefits unlike the employers irrespective of whether temporary or permanent. It is important to note that ‘natural calamity’ is not particularly defined in the Act and can be claimed to fall under the ambit of it.  

The migrants are stranded on roadways due to the current situation but hands of employers are tied as well and even though some might think but everyone cannot afford the same. Such a crisis is itself not compensated under loan forbearance.

In such a situation, the solution can be to adopt the idea of common law ‘lay off’ concept to pay 50% of wages so that their daily needs are at least met and also so that it can be done for a larger period to a bigger audience. The Government can also secure by adopting Canada’s plan to subsidize certain requirements and by giving them a privileged position by offering different schemes.

It is time that the country understands that we are all in this together. Without one section the other cannot sustain for long. Very evidently, when John F. Kennedy quoted, he might not have forecasted viruses or pandemics but he knew the world required to stand together for development.

India’s Most Magnificent King, stood under tent for 500 years

It’s true that democracy is wonderful form of government but ever wonder where it was initially invented. Who were those people responsible for setting foundation of the concept of democracy? A concept that wasn’t available in any other civilisation that developed afterwards. One way or the other you must have read it somewhere that a King is everything in an empire, a king forms the law and a king is the law. Basically a king is supposed to do anything that he feels is correct, Right?

What if I tell you that there existed a Mighty King who had immense power yet he was most humble, a king most beautiful and yet he had only one wife, a worthy prince who was the first heir of throne and yet never screamed for his birth right, a king who always lived a life for others being selfless, a king who always faced misery and spent 14 years of his life in exile far from his kingdom and yet never complained, a king whose love of life was abducted, taken to far unknown place thousands of miles and yet he never gave up on her, he travelled thousands of miles barefoot to get his love back.

A king who fought a battle with the strongest man of all the three worlds (Heaven, Hell and Earth) and defeated that strongest man, yet never conquered his territory.  

Words aren’t enough to explain that king and no language has any power to explain his true harmonious character and yet this king had to spend 500 years under a tent.

This could happen only in India and whether to call it a beauty of democracy or flaw of democracy which took it another 74 years, it’s up to you.

It is obvious that no religion should be facing any form of repression but India’s majority religion Hinduism had to face this devotional suppression in its own nation. However difficult to believe it sounds but yes, it actually happened. Maybe because of non-violent and peaceful approach of Hinduism this took 74 years even after Independence of India in 1947, or maybe slow and interruptive approach of solving this case under Indian judiciary should be held responsible, we can’t say actually.

The King that we have been writing about is none other than Lord Ram, the King of Ajodhya and  the founder of democracy. Lord Ram established a kingdom for all the races, colours, creeds, therefore also denoted as Ram-Rajya (The best democracy any nation could have). A kingdom that had fundamental rights for both humans and animals, thousands of year before any civilisation on this planet, this kingdom had rights for all beings.

Indian Supreme Court advocate K. Parasaran who represented Lord Ram’s case in the most sensitive land dispute among Hindus and certain groups of Islamic faith, since all of Muslims were never against Ram Temple construction at ayodhaya’s demolished barbari masjid territory. Around 500 years before during the empire of Mughal emperor Babar, a descendent of Zhengis khan’s bloodstream demolished the most devoted place of worship for Hindus, The Ram temple at a place where Prince Ram was born thousands of years before. The temple itself was found to thousands of years old, when it was demolished.

There’s a saying by Indian Judiciary and constitution “truth shall prevail over lies” and this was rubber stamped by the Supreme Court of India, in its verdict of granting the entire disputed land of babri masjid to Hindus, based on key archaeological evidences (pillars, statues and various other anti-Islamic items) found under the foundations of babri masjid. These were found and secured by former Director of ASI North (archaeological survey of India) K.K. Muhammed and proved to be key evidences in the Honourable supreme court of India while making its final judgement.

Minerva Mills Case: Analyzing the battle between Fundamental Rights & Directive Policies

According to the Constitution of India, Parliament and the state legislatures have power to make laws within their respective jurisdiction. This power, though, is not absolute in nature. The judiciary is given by the Constitution powers to determine the constitutional validity of all laws which means that the Supreme Court(SC) has the power to declare any law invalid or “ultra vires” if it violates any provision of the Constitution. Our founding fathers wanted the Constitution to be an adaptable document instead of a rigid framework for governance. Hence, Article 368 (Power of Parliament to amend the Constitution and its Procedure) gave power to the Parliament to amend the Constitution. But the Parliament could not distort, damage or alter the basic features of the Constitution under the excuse of amending it with the intention that the original ideas which were envisioned by the constitution-makers are preserved. Thus, the doctrine through which certain features of the Constitution are beyond the limit of the powers of amendment by Parliament is called the “Basic Structure” doctrine. No part of the Constitution can be so amended by Article 368 that it “alters the basic structure” of the Constitution or any constitutional amendment that violates the ‘basic structure’ would be invalid.

The phrase “Basic Structure” was introduced in the landmark case of Golaknath v.State of Punjab[1] for the first time in 1967 where the SC held that the Parliament has no power to amend Part III(Fundamental Rights) of the Constitution as the rights given are “transcendental and immutable”. According to the SC decision, Article 368 only lays down amendment procedure of the constitution and does not give the Parliament absolute powers to amend any part of the Constitution, but it was only in 1973 that the concept raised in the case Keshvananda Bharti v. State of Kerala[2] . The SC upheld the validity of the 24th Constitution Amendment Act by reviewing its decision in the Golaknath case. It was held that the Parliament has power to amend any provision of the Constitution, but the basic structure of the Constitution is to be preserved. Though the Apex Court held that the basic structure of the Constitution could not be repealed even by a constitutional amendment but it still did not give any clear definition of basic structure. After the declaration of the doctrine of basic structure of the Constitution by the Supreme Court in the case of Keshvananda Bharti v. State of Kerala, it was in the case of Minerva Mills vs Union on India[3]  which involved a further analysis of the basic structure in the context of the limitations to the amending powers of the Parliament and the balance between fundamental rights and directive principles of the state policy.

Minerva Mills Ltd. is a limited company dealing in textiles in Karnataka. On August 1970, the Central Government, after extensive production fall in the company, under section 15 of the Industries (Development Regulation) Act,1951 appointed a committee. This was to make a full and complete enquiry of the activities of the company as they believed that there had been or was likely to be significant fall in the volume of production. The appointed Committee submitted its report in January, 1971 to the Central Government, on the basis of which the Government passed an order on October 19, 1971 under section 18A of the 1951 Act, permitting the National Textile Corporation Ltd., to take over the administration of the Mills on the ground that its activities are being managed in a manner highly harmful to public interest. This undertaking was then nationalized and the Central Government took over the company under the provisions of the Sick Textile Undertakings Act of 1974.

In this case, the validity of the 42nd Constitutional Amendment Act,1976 was challenged on the ground that the clauses inserted are destructive of the ‘basic structure’ of the Constitution. The Supreme Court struck down the clauses (4) and (5) of the Article 368 on the same ground. The court ruled that a limited amending power itself is a basic feature of the Constitution. The historical judgment of this case laid down that: The amendment made to Article 31C by the 42nd  Amendment is invalid as it damaged the essential features of the Constitution. Clauses (4) and (5) are invalid on the ground that they violate two basic features of the Constitution which is limited nature of the power to amend the constitution and judicial review. The courts cannot be deprived of the power of judicial review. The procedure given in Clause (2) is mandatory. If there is no compliance between the amendment passed and the procedure, then it would be invalid. The Judgment thus makes it clear that the Constitution is supreme not the Parliament. Parliament cannot have unrestricted amending power so as to damage or destroy the Constitution to which it owes its existence and from where it also derives its power. The Fundamental Rights and the Directive Principles of State Policy should be complementary to each other and there should be no conflict between them. Certainly, Part IV is a part of the Constitution. Even though the Directives are not enforceable, Article 37 clearly mentions that it shall be the duty of the State to apply these principles. An unjustified importance on civil freedoms and rights in total disregard of the need to bring about social and economic justice, may lead to a mass disorder. Similarly any importance on the Directive Principles alone, in total disregard of the rights and freedoms, may lead to dictatorship. Hence, a harmonious balance should be maintained between Part III and Part IV and the real combination should come out only from harmonizing the spirit of economic democracy with the spirit of political democracy.

This case validated the ‘basic structure’ doctrine by highlighting the importance of the balance between fundamental rights and DPSP as a part of the basic structure of the Constitution. This case also broadened the concept of the ‘basic structure’ of the constitution which has safeguarded the survival of the fundamental features over which the constitution is based upon.

The court also reiterated the judgment in Kesavananda case holding that the power of Parliament to amend the constitution under Article 368 is of restrictive nature. The court relied on the explanation of Basic Structure that the circumstantial features can be changed but the basic features cannot be changed.

Basic structure of the Constitution is of key importance as it prevents the Parliament from having absolute power and becoming the principal of Law itself. It has now emerged in certainty that the struggle between Parliament and Judiciary is that the constitutional amendments and all the laws are subject to judicial review and laws that violates the basic structure are likely to be struck down. Substantially, Parliament’s power to amend the Constitution is not absolute or unconditional and the Supreme Court is the final negotiator and interpreter of all constitutional amendments.

Finally, the Basic Structure of the constitution reiterates that nothing is above the Constitution, neither the Parliament nor the Judiciary.

[1] Golaknath v State of Punjab, (1967) 2 SCR 762(India)

[2] Kesavnanda Bharati v Union of India, (1973) 4 SCC 225(India)

[3] Minerva Mills v Union of India, (1980)AIR SC 1789

ACCOUNTABILITY OF ELECTION COMMISSION

Keywords:

Election Commission of India ~ Constitution of India ~ Article 324 ~ Supervision ~ Direction ~ Control ~ Accountability

Introduction:

The Election Commission of India is a central, state and district autonomous statutory body responsible and accountable for overseeing electoral process in India. The board administers Lok Sabha, Rajya Sabha elections, state assemblies, state legislative councils and president and vice president of the nation. Under Article 324 of the Constitution, the Election Commission does its work, and the Representation of the People Act has been subsequently enacted under it.

The commission has the strength and supremacy, under the Constitution, to engage in behaviour appropriate to the extent, when the enacted laws make insufficient provision for dealing with a given situation in the conduct of an election. As a constitutional body, the Election Commission is one of the limited bodies that operate with both sovereignty and independence, along with the nation’s higher judiciary, the Union Public Service Commission, and India’s Controller and Auditor General.

What is Election Commission of India?

The Election Commission of India (ECI), which was formed in 1950 to promote democratic process in India, is a constitutionally approved body. The headquarters are situated in New Delhi. It consists of three members namely, the Chief Electoral Commissioner and two other Commissioners who are designated by the president of India for a term of six years and who cannot be removed from office except through a parliamentary indictment. The ECI, while almost invulnerable to political pressures and scrupulously neutral, is tasked with ensuring free and fair elections.

The Indian Election Commission is the governing body of the election. The Election Commission of India (ECI) is envisaged by Article 324 of the Constitution of India. It defines the code of conduct for election model in the country.

The Constitution under Article 324 provides for the planning, conduct and supervision for elections to the legislature, the state governments and the president and vice-president offices by the Election Commission. Therefore, both the central and the regional elections are the responsibility of the Election Commission. It is also responsible for preparing, maintaining and updating the electoral rolls, raising political funds, registration of political parties, nomination of candidates, monitoring of campaigns, accelerating media, arranging and organising polling booths, superintending the vote counting and result declaration. The ECI is convincing and determined in matters of elections—for instance, where the law is ambiguous—but it can be challenged in courts of law.

In the early 21st century, the Indian general elections became the world’s biggest democratic exercise. In a number of geographical, political and climate ways, they involved nearly 700 million voters in some 700,000 polls. The ECI functions through a secretariat of some 300 staff members. Each state has a Chief Electoral Officer with a core staff, and civil servants assume the responsibilities of election officials at the district and electoral levels. However, during the general election, an enormous team of temporary workers up to five million people are responsible for the conduct of the poll.

Superintendence, Direction, Control and Accountability for Elections

In Article 324, the term superintendence, direction and control and the conduct of all elections were kept to include certain powers which, although not expressly given, are required to be exercised in order to effectively fulfil the task of holding the elections at their completion. Furthermore, it would be appropriate for the Commission to make general provisions on matters pertaining to symbols, either in anticipation or in the light of practice.[1] For the purpose of free and fair elections and for the protection and security of electors and with a view to avoiding bullying and victimization of electors, the Commission has full authority to guide the way in which ballots are counted and is accountable for the measures taken during the due process.[2] For transfer of those officers (who had completed more than four years of stay in one district) from one district to another, directives are issued by the Election Commission, were adopted pursuant or intra vires to Article 324.

The text conduct of the elections referred to in Article 324 was considered to be broad in scope, which would include the power to make all the necessary arrangements for the conduct of free and fair elections. As every contingency cannot be acknowledged or anticipated beforehand, the Supreme Court in Union of India v. Association for Democratic Reforms[3], held that the Commission could cope with a situation in which the field had not been occupied by issuing the necessary orders. Article 324 was said to be a reserve of power, giving the Commission its own right to exercise residual authority a creature of the Constitution. The Commission may, therefore, issue instructions asking the candidates to provide information on their assets, their educational qualifications, the background of their lives, etc. Nevertheless, the terms ‘superintendence, direction and control in Article 324 are intended to complement and not replace the law and, therefore, the Commission cannot move against a validly formed electoral law. No power to de-register a political party shall also be bestowed on the Election Commission. Moreover, with the approval of the State, the Commission may control any legal issue not protected by the Rules of Procedure set out in the Legislature.

In the case of Ram Deo Bhandari v. Election Commission[4], the Supreme Court held that the Election Commission was free to take such measures as it deemed appropriate to ensure a free and fair vote, but would not withhold the elections to the Legislative Assembly of a State on the ground that it had failed to complete the process of issuing photo identity cards within the time limit prescribed by the Commission, for it would be contravention of the mandate of Article 168 of the Constitution.

In the case of J.T. Girls Degree College v. State of U.P.[5], it was ruled that the Election Commission and the Election Authorities are both controlled by the 1951, Representation of People Act, and cannot act in a manner inconsistent with the Act. It is also recommended that Article 324 should be read in the context of the Constitutional Scheme and the Act of 1950 and of 1951. In A.C. Jose v. Sivan Pillai[6], some significant errors in the use of EVM had been identified by the Supreme Court. Since these deficiencies had been taken care of by the new improved version of EVM as well as by the Representation of People Act, 1951 and the Rules there under were modified accordingly.

Some Issues for which ECI has to be Accountable

  • The presence of money and criminal elements in politics has risen over the years, along with intimidation and political corruption resulting in elections being criminalized. The ECI could not stop the deterioration.
  • A blatant misuse of power has occurred by the state government, which often makes large-scale transactions on the eve of elections and posts malleable officials in key positions, often employing official vehicles and electioneering buildings, in violation of the ECI model code of conduct.
  • The ECI is not properly prepared to control the parties. The ECI does not have the authority to impose internal party control and to govern party finances.
  • Throughout the past few years, there has been a growing perception that the Election Commission is becoming increasingly independent of the executive that has damaged the institution ‘s reputation.
  • One of the main institutional drawbacks is the lack of accountability in the election of the CEC and two other commissioners and the choice of the presiding government.
  • EVMs have been reported to be malfunctioning, to be hacked and not to record votes that corrode the confidence of the institution of the general masses.
  • Loss of structural governance as a result of decreasing democratic morality norms and deteriorating service ethic and commitment in public life.
  • An inefficient and lengthy judicial method of managing electoral requests, frequently making the whole method meaningless.

Conclusion:

Through the years, a range of commendable electoral reforms have been carried out by the Election Commission to improve democracy and improve the fairness of the elections. These changes are admirable and equally sufficient. Under the EC’s auspices, the election machinery certainly deserves plaudits for free and fair conducting of elections. So many vices still torment our framework. Political parties turn to irrational tactics and unethical practices to win votes. These diseases promote entry of the anti-social elements into the electoral competition. The question is not the lack of legislation but their lack of rigid compliance and enforcement. There is a need to strengthen the EC’s hands and give it more legal and institutional power and authority to root out those unjust tendencies. The EC must be granted powers to discipline the errant politicians who are transgressing and breaching the voting process and code of conduct.

Frequently Asked Questions (FAQ’s):

Q.1. What are the advantages of using EVM’s?

A.1. Electronic Voting Machines (EVM’s) have been widely used in important constituencies in restricted areas and also, in by-elections. Throughout the Goswami Committee deliberations, any questions regarding this technology were amply removed. Not only were the EVMs satisfactorily demonstrated to all representatives of parliament, but many electronic experts from the Indian government also testified that the devices could be used without any lingering doubts at all the elections. The benefits of EVMs are very evident in preventing large-scale rigging as the system locks up and will allow just one hit every several seconds. Wherever such EVMs were used in urban and rural areas, there were no large-scale rigging reports.

Q.2. What are successes and failures of ECI?

A.1. Thirteen general elections to Lok Sabha and a much greater number to various State Legislative Assemblies have been held over the last half-a-century. We should take genuine pride in the fact that these were successful and widely accepted as free and equal. But the experience has also brought many misconceptions to the fore, some very severe, which in many quarters has created a profound concern. Links to the toxic position of financial influence, muscle strength, and mob control and criminalization, racism, communitarianism, caste system and corruption are frequent.

[1] K.M. Sharma v. J.B. Singh, AIR 2001 All. 175.

[2] E.C. of India v. Ashok Kumar, AIR 2000 SC 2979.

[3] AIR 2002 SC 2112.

[4] AIR 1995 SC 852.

[5] AIR 2004 All. 267.

[6] AIR 1984 SCR (3) 74.

Things to Do When You Are Bored

  • Start and Complete a puzzle
  • Start a Journal
  • Start a Blog
  • Start a Youtube Channel
  • Start a new hobby
  • Cook
  • Bake
  • Try your hand at Poetry
  • Learn another language
  • Read books
  • Write a Book
  • Start Painting
  • Take on a photography challenge
  • Meditate
  • Start Exercising
  • Write letters
  • Put on a show
  • Declutter your Wardrobe
  • Declutter your home
  • Online Shopping
  • Catch up on TV Shows
  • Watch Movies
  • Connect with your friends
  • Feed your neighbourhood stray dogs
  • Take on 30 day challenges
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PRAWN PULAO | SHRIMP PULAO | SPICY SHRIMP PULAO | SIMPLE PRAWN PULAO
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Prawns roast kerala style | നല്ല അടിപൊളി ചെമ്മീൻ റോസ്‌റ്റ് ഈസി ആയി ഉണ്ടാക്കാം | English Subtitles

India’s Geography| Knowing India better

Mother Earth has been quite favourable to India, giving it a potential advantage in terms of economy, culture, climate, tourism, etc. although, unfortunately, this has neither been reciprocated nor has the potential been utilized.

India is an individual subcontinent

India is a distinct geographical unit bounded on the north by the ranges of the Himalaya and Karakoram, on the north-west by the mountains to the west of the Indus, on the north-east by the hills of Assam and Cachar, and everywhere else by the sea, forming a distinct subdivision within the continent. It’s not a surprise that this area is called the Indian Subcontinent.

India’s coastline mostly protected due to inaccessibility in the past

In ancient times, when no power attempted to assert full command of the sea, a country so largely surrounded by the ocean was inaccessible for the most part, and could be approached by land through its land territorial section only. The north-eastern hills and the gigantic Himalayan and Karakoram ranges present comparatively few passable openings and none easy of passage for considerable bodies of men. But the hills west of the Indus are pierced by many passes more or less open. The main land gates of India are on her north-western frontier, and this physical fact dominated her history for thousands of years, avoiding thousands of potential invasions. It was only when water navigation developed in European countries did India become a colony.

Earliest Human Civilizations

The northern plains being made fertile by Ganga and Indus combined with availability of water for other daily purposes led to the development of one of the earliest human civilizations in the world. And this laid the foundation of development of what we have today in the entire world – market, arts, farming, administration, etc.

Economic Advantages

Due to geographical position, China and India became the two most prosperous regions in the world with the highest living standards at around 0 BC. Economic activities like farming and places like markets were well established. Long coastline also created many natural ports and harbours. This led to the establishment of cities like Mumbai and Kolkata near the ports.

A Unique, but Diverse Culture

A very diverse geography is one of the primary reasons for diverse culture in India. We have desert, mountains, plains, coastal areas, plateau having diverse climatic conditions and natural resources which shaped regional habits and culture. Then a broad belt of hill and forest running from the Gulf of Cambay on the west to the mouths of the Mahanadi on the east, along with Vindhya and Satpura mountains and river Narmada separates north from south India. These barriers were difficult to cross in the ancient times which were clearly reflected by almost distinct culture between the 2 regions.

Influence on Climate

The lofty Himalaya Mountains form a barrier which prevents the cold winds of north Asia from blowing into India, thus protecting it from severely cold winters. It also traps the Monsoon winds, forcing them to shed their moisture within the sub-continent. India lies between 8 N and 37 N latitudes. The Tropic of Cancer passes through the middle of India, thus making the southern half of India in the Torrid Zone and the northern half in the Temperature Zone, which is responsible of different climate due to wind patterns, etc.

Tourism for Everyone’s Taste

As I mentioned before, India has everything. I have been to various European nations and the US and can say that if natural resources are better developed and made more accessible in India, then Himalayas can beat Switzerland, Thar Desert can take over Death Valley, Goa over famous beaches. Then we have forests and lagoons in Kerala, various lakes, rivers, etc.

In a nutshell, India’s location offers it with numerous advantages that can easily take it to the top. This is clearly reflected by the fact that the subcontinent was the most advanced region in the BC era – when nature was the primary source of development. But then the social structure, policies and various other things decelerated its growth.

India’s geographic advantages and its role in India’s grand strategy were clearly grasped by Lord Curzon of Kedleston, former Viceroy of India during the British Rule. Lord Curzon understood the geographic advantages of a state that ruled the subcontinent, truths that hold true today for an independent India. In Curzon’s 1909 essay “The Place of India in the Empire,” he wrote:

“It is obvious; indeed, that the master of India must, under modern conditions, be the greatest power in the Asiatic Continent, and therefore, it may be added, in the world. The central position of India, its magnificent resources, its teeming multitude of men, its great trading harbours, its reserve of military strength, supplying an army always in a high state of efficiency and capable of being hurled at a moment’s notice upon any given point either of Asia and Africa- all there are assets of precious values. On the west, India must exercise a predominant influence over the destinies of Persia and Afghanistan; on the north, it can veto any rival in Tibet; on the north-east and east, it can exert great pressure upon China, and it is one of the guardians of the autonomous existence of Siam. On the high seas it commands the routes to Australia and the China Sea.”

This article would definitely shed some lights on India’s immensely gifted geography and to people’s minds, in knowing India better.