SUBJECT :
ENGLISH II - LEGAL LANGUAGE
PORTION
|
01
|
CHAPTER NO.1
|
LEGAL
CONCEPT S
|
|
|
|
A) CIVIL AND CRIMINAL LAW
|
|
B) COMMON LAW
AND EQUITY
|
||
|
C) RULES OF
NATURAL JUSTICE
|
||
|
D)
RULES OF INTERPRETATION
1)
INTERPRETATION OF STATUE
2)
INTERPRETATION OF CONTRACTS
|
||
|
E)
PRECEDENTS
1)
RATIO DECIDENCE AND OBITER ICTA
|
||
|
02
|
CHAPTER NO. 2
|
CONSUMER
PROTECTION
|
|
|
|
A) AIMS AND
OBJECTIVES OF CONSUMER PROTECTION ACT.
|
|
B) DEFINATION
OF IMPORTANT AND DEFINITE TERMS
|
||
|
C) COMSUMER
PROTECTION COMES IN AND RIGHTS OF CONSUMER
|
||
|
D) CONSUMER
DISPUTE REDRESSAL AGENCIES.
|
||
|
03
|
CHAPTER NO. 3
|
UNIFORM
CIVIL COURT
|
|
04
|
CHAPTER NO. 4
|
THE
CONSTITUTION OF INDIA AND PUBLIC INTEREST LITIGATION
|
|
|
|
A) PREAMBLE
|
|
B) SALIENT
FEATURES OF CONSTITUTION OF INDIA
|
||
|
C) FUNDAMENTL
RIGHTS, PUBLIC INTEREST LITIGATION, JUDICIL ACTIVISM.
|
||
|
D) DIRECTIVE
PRINCIPLES OF STATE POLICY (PART – 4)
|
||
|
E)
FUNDAMENTAL DUTIES.
|
||
|
05
|
CHAPTER NO. 5
|
RESERVATIONS
|
|
|
|
A) RESERVATION
FOR SCHEDUE CASTE AND SCHEDULE TRIBE AND BACKWARD CLASSES.
|
|
B) RESERVATION
FOR WOMEN
|
||
|
C) RESERVATION
FOR CHILDREN
|
||
|
D) RESERVATION
FR ANGLO – INDIANS
|
||
|
E)
THE MANDAL COMMISION AND ITS AFTER MATH
|
||
|
06
|
CHAPTER NO. 6
|
FAMOUS
TRIAL
|
|
|
|
A) WHAT IS A
TRIAL
|
|
B) TRIAL OF
BAL GANGADHAR TILAK
|
||
|
C) TRIAL OF
MAHATMA GANDHI
|
||
|
D) TRIAL OF
WALTERB GRAHAM RAWLAND
|
||
|
07
|
CHAPTER NO. 7
|
LAND
MARK JUDGEMENT.
|
|
|
|
A) INDIAN
MEDICAL COUNCIL V/s V. P. SHANTA
|
|
B) Mrs. JORDAN
DIENGHEH V/s S.S CHOPRA
|
||
|
C) MOHAMMD
AHMED KHAN V/s. SHAH BANU BEGAM
|
||
|
D) SARLA
MUDGAN V/s UNION OF INDIA
|
||
|
E)
AHMEDABAD WOMEN ACTION GROUP V/s UNION OF INDIA
|
||
|
F)
PRAGATI VARGHESE V/s CYRAL VERGHESE
|
||
|
G) MUSILAMI
MADALIEL V/s IDEOL OF SWAMI NATHAN SWAMI HIROKOLI
|
||
|
H) K. C.
WASANT KUMAR V/s STATE OF KARNATAKA
|
||
|
I)
JANKI PRASAD PARIMO V/s STATE OF JAMMU AND KASHMIR
|
||
|
J) INDIRA
SAWHNEY V/s UNION OF INDIA
|
||
|
K) CHAITTAR
SING V/s STATE OF RAJASTHAN
|
||
|
L)
ASHOK KUMAR GUPTA V/s STATE OF UTTAR PRADESH
|
||
|
M) S RANGA
RAJAN V/s P. JAG JIVAN RAM
|
||
|
N) A. D. M.
JABALPUR V/s SHIVKANT SHUKLA
|
||
|
O) NARSIMA RAO
V/s STATE
|
||
|
P) S. P GUPTA
V/s UNION OF INDIA
|
||
|
Q) I. C
GOLAKNATH V/s STATE OF PUNJAB
|
||
|
R) KSHAWNATH
BHARTI V/s STATE OF KERELA
|
||
|
S) ATTMPTED
RECONSIDERATION OF THE DECISION OF SUPREME COURT IN KESHAWNATH BHARTI’S CASE
|
||
|
T)
MINERVA MILLS V/s UNION OF INDIA
|
CHAPTER NO. 04
THE CONSTITUTION OF INDIA AND PUBLIC INTEREST LITIGATION
WE THE PEOPLE OF INDIA,
having solemnly resolved to continue India into a SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC, and to secure to all its citizens: JUSTICE, SOCIAL,
ECONOMIC AND POLITICAL; LIBERTY OF THOUGHT, EXPRESSION, BELIEF, FAITH ND
WORSHIP;
EQUALITY of status and of opportunity
and to promote among them all.
FRATERNITY assuring the dignity of
the individual and the unity and integrity of the nation.
In our CONSTITUENT
ASSMBLY, this twenty sixth day of NOVMBER – 1949, DO HERBY ADOPT, ENACT AND GIV
TO OURSELFS THIS CONSTITUTUIONS.
INTRODUCTION :
The preamble serves as an
introduction to the constitution. It is a statement of the purpose for which
the Indian constitutions was enacted. The preamble has dual function. Firstly,
it indicates the source of the constitution namely the people of India.
Secondly, it throws light on the aims and objects of the constitution.
Four pillars of preamble
are to secure justice, liberty, equality and fraternity to all the citizens of
the country. Thus, the preamble express the political, moral and religious
values which the constitutions is intended to promote.
In the words of noted
jurist, Mr. N. A Palkhiwala “the constitution is not a Jelly Fish; it is a
highly involved organism. It has an identity and integrity of its own, the
evocative preamble wing its identity card”.
SALIENT FEATURES
INDIAN CONSTITUTION:
The constitution of India which comes
into force on 26th Jan 1960 has the following salient feature.
1) It is a lengthy
constitution the world has ever produced. When enacted, it had 395 articles and
8 schedules. Today it has many more.
2) Detailed
provisions are made in the constitution for the working of the three pillars of
the government. (Executive, Legislature and Judicial), not only of the center
but, also of the state. Additionally it also contains several provisions on
divorce subjects like Panchayat, Municipalities and Society Matters which could
be easily taken care of under separate Acts.
3) Being a federal
constitution, it provides for a division of legislative power between union and
the state. Matters containing ‘List 1’ of the 7 schedules are within the
exclusive jurisdiction of parliament. There is a separate list of matter, list
to on which only the state can pass legislation and there is a 3 list
containing matter on which both the centers and state can legislate.
4) Although, the
federal interim, the constitution even sages case, a substantial strong center
even during normal times. In time of emergency. It is converted into almost
unitary constitution. Legal pundits have therefore sometimes refers to it as a
cause federal constitution.
5) Federal tends to
be rigid. However, the Indian constitution is perhaps most flexible federal constitution. In the first 16 years
of the existence it has been amended more the hundred times.
6) Although the
constitution does not provide any express restriction on the power of
parliament to amended. The Supreme Court has held that parliament has no power
to amend basic structure as basic frame work of the constitution.
Eg: 1) Federal and secular nature of
constitution
2)
Supremacy of the constitution.
3)
The demonstration of power between executive legislative and judicial.
4)
Dignity of individual.
5)
Unity and integrity of Nation.
7) Apart from containing detail provision for
fundamental rights. The constitution also provides for
Fundamental duties of Indian citizen.
7) Constitution of
India also provides for directive principles of state policy.
8) The constitution
provides for an independent judiciary with power of judicial review.
9) It supper
imposes and elected president upon a cabinet of minister which is responsible
to parliament.
10) The constitution
envisages a single citizenship for whole of India. In US. A citizen can be a
both of US and the state of California. No Indian can be a citizen of
Maharashtra and Gujarat.
11) The Indian
constitution has adopted the constitution of secular state. There is no state
religion and every person is free to follow the religious pursuits of his or
her choice or even to follow no religion at all.
12) The constitution
has provided for adult franchise. Every citizen over the age of 18 has right to
vote.
13) An attempt is
made in the constitution to reconcile the theory of parliament sovereignty with
the principal of supremacy of writing constitution.
MEANING OF WORDS IN LEGAL TERMS :-
1) SOVEREIGN :
The
supreme, absolute and uncontrollable power by which an independent state is
governed and form which all specific political powers are derived; the
intentional independence of a state, combined with the right and power of
regulating its internal affair without foreign interference.
2) SOCIALIST :
An
economic and social theory that seeks to maximize wealth and opportunity for
all people through public ownership and control of industries and social
service.
3) SECULAR :
Secularism
is the principal of the separation of government institution and persons
mandated to represent the state from religious institution and religious
dignitaries. One manifestation of secularism is asserting the right to be free
from religious rule and in a state declared to be neutral on matters of belief,
from the imposition by government of religion or religious practices upon its
people.
4) REPUBLIC :
That
form of government in which the administration of affairs is open to all the
citizens. The political unit or “State”, independent of its form of government.
5) DEMOCRATIC :
It is a
form of government in which the people freely govern themselves; where the
executive or (administration) and law- making or (legislative) power is given
to people chosen by the public.
CONSTITUTION
PART 3 – FUNDAMENTAL RIGHTS
1) RIGHT TO EQUITY
(ART. 14 TO 18)
2) RIGHT TO FREEDOM
(ART. 19)
3) PROTECTION IN
MATTERS OF CONVICTION (ART. 20)
4) RIGHT TO LIFE
AND PERSONAL LIBERTY (ART. 21)
5) RIGHT TO
EDUCATION (ART. 21A)
6) PROTECTION
AGAINST ARREST & DETENTION (ART. 22)
7) RIGHT AGAINST
EXPLOITATION (ART 23 & 24)
8) RIGHT TO FREEDOM
OF RELIGION (ART. 25 TO 28)
9) CULTURAL AND
EDUCATIONAL RIGHTS ( ART. 29 & 30)
10) RIGHT TO
PROPERTY (ART. 31)
11) RIGHT TO
CONSTITUTION REMEDIES (ART. 32 & 33)
DESCRIPTION:
1) Right to
equity (Article 14 to 18) :
a) Article 14 –
Right to Equity :
Article 14 of Indian constitution deals with right to
equality. It provides for “Equality before law and Equal protection of Law”.
Equality, which is equivalent to ‘Dicey Rule’ of law (England and American
equal protection of law), is very important fundamental rights.
Article 14 of the Indian
constitution declares that ‘the state should not deny to any person equality
before the law or equal protection of law within the territory’. According to
this article law treats equally all individuals without any discrimination
right from the Prime Minister to the Constable. By equal protection of law is
meant security to everyone, under similar terms, in his life, his liberty, his
property and the pursuit of happiness. It implies not only the right of each to
resort and the same terms with other to the court of the country for the
security of his person and property, the prevention and redress of wrong, and
enforcement of contracts but also exemption from any greater burdens and
charges such are equally imposed upon all others under similar circumstances.
Equality before the law is a
negative concept and equal protection of law is a positive concept. The former
declares that everyone is equal before law, that no one can claim special privileges
and that all classes are equally subjected to ordinary law of land. Latter
guarantees equal protection of all alike in the same situation and under like
circumstances.
CASE LAW:
Shiv Shankar V/s Madhya Pradesh
government.
It was held in this case that
equality before the law is the negative concept which means absence of any
special privilege in favors of any individual or class irrespective of status,
rank and office. It was held in this case that equal protection of law is the
positive concept which would certainly means equality of treatment in equal
circumstances.
b) (Article 15)
– Prohibition of discrimination on ground only of religion, race, caste, sex or
place of birth :
Article 15 is divided
into 5 parts:
1) Article 15(1)
:
Lays
down that the state not discriminate against any citizen on ground only of
religion, race, caste, sex, place of birth or any of them.
2) Article 15(2)
:
No
citizen can be discriminated against only on the below grounds:
Access
to shop, Public restaurants, Hotels, Place of Public entertainment. Or the use
of wells, tanks, bathing ghats, roads and place of resort, maintain wholly or
partly out of state funds of dedicated to the use of general public.
3) Article 15(3)
:
Nothing
in article shall prevent the state from making special provisions for women’s
& children’s.
4) Article 15(4)
:
Article
15 clause 4 allows the state to make special provisions of advancement of any
socially and educationally backward classes of citizens or for the schedule
class & schedule tribes.
5) Article 15(5)
:
Article
15 clause 5 inserted in 2005 allows the state to make special provision for the
advancement of above classes of person relating to their admission in education
institution, including private educational institution whether or not aided by
the state except certain minority educational institutions.
c) (Article 16)
– Equality of opportunity in the matters of public employment.
1) There
shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State.
2) No
citizen shall, on grounds only of religion, race, caste, sex, descent, place of
birth, residence or any of them, be ineligible for, or discriminated against in
respect of, any employment or office under the State.
3) Nothing in this article shall
prevent Parliament from making any law prescribing, in regard to a class or
classes of employment or appointment to an office under the Government of, or
any local or other authority within, a State or Union territory, any
requirement as to residence within that State or Union territory prior to such
employment or appointment.
4) Nothing in this article shall
prevent the State from making any provision for the reservation of appointments
or posts in favor of any backward class of citizens which, in the opinion of
the State, is not adequately represented in the services under the State.
4A) Nothing in this article shall
prevent the State from making any provision for reservation [in matters of
promotion, with consequential seniority, to any class or classes of posts in
the services under the State in favor of the Scheduled Castes and the Scheduled
Tribes which, in the opinion of the State, are not adequately represented in
the services under the State.
4B) Nothing in this article shall
prevent the State from considering any unfilled vacancies of a year which are
reserved for being filled up in that year in accordance with any provision for
reservation made under clause (4) or clause 4A) as a separate class of
vacancies to be filled up in any succeeding year or years and such class of
vacancies shall not be considered together with the vacancies of the year in
which they are being filled up for determining the ceiling of fifty per cent. Reservation
on total number of vacancies of that year.
Nothing in this article shall affect
the operation of any law which provides that the incumbent of an office in
connection with the affairs of any religious or denominational institution or
any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination.
d)
Article 17 – Abolition
and untouchablity :
Untouchablity is
abolished and its practice in any form is forbidden. The enforcement of any
disability arising out of untouchablity it shall be an offence punishable in
accordance with law.
The parliament
has enacted the untouchablity offence act 1965. Now since 1976 it has renamed
as protection of civil rights Act 1955. This act must read along with the
present article.
The state can
pass any act in order to improve the living conditions of untouchable and
should not be violate of Article 17. On the ground act it would result in their
segregation and thus amount to practicing untouchablity.
e)
Article 18 –
Abolition of title :
Conferment of title has been
abolishing by Article 18, as they tend to create unnecessary distinction among
the people. Which is not in line with the ideals of Social, Economic and
Political justice and equality? Military or Academic distinctions may be
conferred. Citizen of India are also prohibited from accepting title from
forcing state it is to be noted that what Article 18 prohibits is the conferment
of title but not of awards.
2)
Right to freedom
(Article 19) :
1.
All citizens shall have the right -
a.
To
freedom of speech and expression;
b.
To
assemble peaceably and without arms;
c.
To
form associations or unions;
d.
To
move freely throughout the territory of India;
e.
To
reside and settle in any part of the territory of India; and
f.
***
(repealed)
g.
To
practice any profession, or to carry on any occupation, trade or business.
2.
Nothing
in sub-clause (a) of clause (1) shall affect the operation of any existing law,
or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said
sub-clause in the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States, public order,
decency or morality, or in relation to contempt of court, defamation or
incitement to an offence.
3.
Nothing
in sub-clause (b) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing,
in the interest of the sovereignty and integrity of India or public order,
reasonable restrictions on the right conferred by the said sub-clause.
4.
Nothing
in sub-clause (c) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing,
in the interests of the sovereignty and integrity of India or public order or
morality, reasonable restrictions on the exercise of the right conferred by the
said sub-clause.
5.
Nothing
in sub-clause (d) and (e) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law
imposing, reasonable restrictions on the exercise of any of the rights
conferred by the said sub-clauses either in the interests of the general public
or for the protection of the interests of any Schedule Tribe.
6.
Nothing
in sub-clause (g) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing,
in the interests of the general public, reasonable restrictions on the exercise
of the right conferred by the said sub-clause, and, in particular, nothing in
the said sub-clause shall affect the operation of any existing law in so far as
it relates to, or prevent the State from making any law relating to, -
1.
the
professional or technical qualifications necessary for practicing any
profession or carrying on any occupation, trade or business, or
2.
the
carrying on by the State, or by a corporation owned or controlled by the State,
of any trade, business, industry or service, whether to the exclusion, complete
or partial, of citizens or otherwise.
3)
Protection in matters
of conviction (Article – 20):
a)
Article 20(1) :
No
person can be convicted for any offence if that act was not an offence when it
was committed. Nor can be given any punishment which is greater than the
punishment which was prescribed for that act when committed.
b)
Article 20(2) :
No
person can be prosecuted and punished for the same offence more than once.
Which is also called ‘double jeopardy’.
c)
Article 20(3) :
No
person who is accused of an offence can be compelled to be a witness against
himself. (Prosecution against self discrimination).
4)
Right to life and
liberty (Article – 21) :
No
person shall be deprived life of personal liberty to the procedure establish by
the law.
5)
Right to Education (
Article – 21A) :
The
State shall provide free and compulsory education to all children of the age of
six to fourteen years in such manner as the State may, by law, determine.
6)
PROTECTION AGAINST
ARREST & DETENTION (Article – 22) :
·
No person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds for such arrest nor
shall be denied the right to consult, and to be defended by a legal
practitioner of his choice.
·
Every person who is arrest and detained in custody
shall be produced before the nearest magistrate within a period of twenty-four
hours of such arrest excluding the time necessary for the journey form the
place of arrest to court of the magistrate and no such person shall be detained
in custody beyond the said without the authority of a magistrate.
7)
Right against
exploitation ( Article – 23 & 24 ) :
·
Prohibition of traffic
in human beings and forced labor (Article – 23) :
i.
Traffic of human beings are beggar and other similar
forms of forced labor are prohibited and any contravention of this provision
shall be an offence punishable in accordance with law.
ii. Nothing in this
article shall prevent the state from imposing compulsory service for public
purpose, and in imposing such service the state shall not make any
discrimination on ground only of religion, race, caste or class or any of them.
·
Prohibition of
employment of children in factories ( Article – 24)
No child below the age of fourteen years shall be employed to
work in any factory or mine or engaged in any other hazardous employment.
8)
Right to freedom of
religion (Article 25 to 28) :
·
Freedom of conscience
and free profession, practice and propagation of religion (Article – 25 ) :
i.
Subject to public order, morality and health and to
the other provisions of this part, all persons are equally entitled to freedom
of conscience and the right freely to profess, practice and propagate religion.
Explanation:
The wearing and carrying of kripans
shall be deemed to be included in the profession of Sikh religion.
·
Freedom t manage
religious affairs ( Article 26 ) :
Subject
to public order, morality and health, very religious denomination or any
section thereof shall have the right –
1.
To establish and maintain institution for religious
and charitable purpose;
2.
To manage its own affairs in matters of religion;
3.
To own and acquire movable and immovable property; and
4.
To administer such property in accordance with law.
·
Freedom as to payment
of taxes for promotion of any particular religion
(Article -27):
No person
shall be compelled to pay any taxes, the proceeds of which are specially
appropriated in payment of expenses for the promotion or maintenance of any
particular religion or religious denomination.
·
Freedom as to attendance
at religious instruction or religious worship in certain educational
institutions ( Article – 27 )
I.
No religious instruction
shall be provided in any educational institution wholly maintained out of State
funds.
II.
Nothing in clause (1)
shall apply to an educational institution which is administered by the State
but has been established under any endowment or trust which requires that
religious instruction shall be imparted in such institution.
III.
No person attending any
educational institution recognized by the State or receiving aid out of State
funds shall be required to take part in any religious instruction that may be
imparted in such institution or to attend any religious worship that may be
conducted in such institution or in any premises attached thereto unless such
person or, if such person is minor, his guardian has given his consent thereto.
9)
Cultural and
educational rights ( Article 29 – 30 )
·
Protection of interest of
minorities ( Article – 29 )
i.
Any section of the
citizens residing in the territory of India or any part thereof having a
distinct language, script or culture of its own shall have the right to
conserve the same.
ii.
No citizen shall be
denied admission into any educational institution maintained by the State or
receiving aid out of State funds on grounds only of religion, race, caste,
language or any of them.
·
Right of minorities to
establish and administer educational institution
( Article – 30)
I.
All minorities, whether
based on religion or language, shall have the right to establish and administer
educational institutions of their choice.
II.
1A. In making any law
providing for the compulsory acquisition of any property of an educational
institution established and administered by a minority, referred to in clause
(1), the State shall ensure that the amount fixed by or determined under such
law for the acquisition of such property is such as would not restrict or
abrogate the right guaranteed under that clause.
III.
The State shall not, in
granting aid to educational institutions, discriminate against any educational
institution on the ground that it is under the management of a minority,
whether based on religion or language.
10) Right to constitution
remedies (Article 32 & 33)
·
Remedies for enforcement
of rights conferred ( Article 32 )
The fundamental right is guaranteed to every citizen under part
III of constitution of India. These fundamental rights are guarantee are
available to every citizen against the state this has create the necessary to
protect the fundamental right because the state is more powerful as compare to
individual.
UBI JUS IBI REMEDIUM (Where there is a right there is a remedy) in
other word there is no right without a remedy fundamental right guarantee by
the constitution would be managless unless adequate provisions are made to
enforce such rights. Hence rights to
enforce fundamental rights has itself been made a fundamental right under
constitution of India.
Article 32 guarantees the right to move the Supreme Court for the
enforcement of fundamental right. The Supreme Court is empowered to issue writs.
1)
Habeas Corpus 2) Mandamus 3) Certiorari 4) Prohibition 5) Quo Warrant.
When the constitution
was been drafted in the constitution assembly, Dr. Ambedkar who is regarded as
Father of Indian Constitution” observe with reference to Article 32 as under.
If I was asked to name one particular Article in this constitution as the most
important Article without which the constitution would be nullity, I could not
refer to any article except this one, it is the very sole of the constitution
and very heart of it, And I am glad that house has realized its important.”
Definitions
:
i.
Habeas
Corpus :
Habeas
Corpus a
writ can be regarded as one of the most important. Safe guard of personal
liberty. If the detention of person is nullified, or whenever a person is
detain without detention the writ of Habeas Corpus is issued, literally Habeas
Corpus means produce or bring the body of such person before the court.
(Mandamus means
we command and writ is issued to a person required under the law to perform a specific
duties. In other words writ of mandamus compels the authority to perform that
duty which such authority is required to perform under the law.)
Mandamus is
a judicial remedy in the form of an order from a superior court, to any
government subordinate court, corporation,
or public authority—to do (or forbear from doing) some specific act which
that body is obliged under law to do (or refrain from doing)—and which is in
the nature of public duty, and in certain cases one of a statutory duty. It
cannot be issued to compel an authority to do something against statutory
provision. For example, it cannot be used to force a lower court to reject or
authorize applications that have been made, but if the court refuses to rule
one way or the other then a mandamus can be used to order the court to rule on
the applications.
There are three kinds of mandamus:
1.
Alternative
Mandamus: A mandamus issued upon the first application
for relief, commanding the defendant either to perform the act demanded or to
appear before the court at a specified time to show cause for not performing
it.
2.
Peremptory Mandamus: An
absolute and unqualified command to the defendant to do the act in question. It
is issued when the defendant defaults on, or fails to show sufficient cause in
answer to, an alternative mandamus.
3.
Continuing Mandamus: A
Mandamus issued to a lower authority in general public interest asking the
officer or the authority to perform its tasks expeditiously for an unstipulated
period of time for preventing miscarriage of justice.
(Quo Warranto means by what authority or show the authority.
The object of writ is to prevent a person who has wrongfully and unlawfully
taken the possession of the office from continuing in the office.)
Quo Warranto a writ or legal action requiring a person to
show by what warrant an office or franchise is held, claimed, or exercised.
"Rigorous quo warranto proceedings"
To be fully informed of. The object of writ of certiorari is to keep
judicial body and administration tribunal with in limit, such a writ is issued
by superior court to inferior court requiring the record of proceeding pending
in the inferior court to be transmitted to the superior court, so that the
latter may deal with the same to ensure that justice is done in the matter.
v.
Prohibition :
The writ of prohibition is a
judicial writ issued by Supreme Court to an inferior for preventing the inferior from usurping a jurisdiction
which it does not have in other words it is a writ issued to compel courts within
their limit of their jurisdiction.
11) Directive principal of state policy (Article 48 A) :
Directive principal of state policy are included in part IV of
constitution of India (Article 38 to Article 51) contains directive principal
of state policy as instrument of institution.
A.
Article 38 :
State to
secure social order formation of welfare of people.
B.
Article 39 & 39A :
Certain
principal to be followed for equal justice and free legal aid.
C.
Article 40 :
Organization
of village panchayat.
D.
Article 41 :
Ensuring to
the writ to work.
E.
Article 42 :
Provision
for just and human condition of work and maternity benefit.
F.
Article 43 & 43A :
Provision
of wages for worker and participation of worker in management.
G.
Article 44 :
Uniform
Civil for the citizen.
H.
Article 45 :
Provision
for free and compulsory education for children.
I.
Article 46 :
Provision
of educational and economic of SC, ST, and other worker section.
J.
Article 47 :
Provision
for raising the level of nutrition and level of living and to improve public
health.
K.
Article 48 :
Organization
of agriculture and animal husbandry
L.
Article 48 A :
Protection
& important of environment and safe
guarding forest and wild life.
M.
Article 49 :
Protection
of monuments and place and objects of national importance.
N.
Article 50 :
Separation
of judiciary from security.
O.
Article 51 :
Promotion of
international peace and security
Ø CASE LAWS
·
Black Born Case :
Albert
Raymond black born was a British politician belonging to labor
Party, who was also the member of parliament he is
remember today as a political activist who filled several writ petition against
public official in England.
The black born case broadens
the rule of locus standee in the case of writ file by individual against public
official. Under Black Born standard any person who is adversely affected by the
action of any government official in making a mistaken policy decision can be
given a hearing by the court. The activity was involved in several cases. Some
of the one given below:-
R V/s Commissioner of police of metro
police.
In this case the court of appeal allows Black Born to seek a writ of
Mandamus to compel the police commissioner to enforce the beating and gambling
law against gambling clubs.
Black Born V/s Attorney of General.
In this case the court of
appeal held that Black Born did have Locus Standee to challenge the decision of
British Government to join the EU Common Market, on the merit of the case Black
Born did not succeed.
R V/s Commissioner of police of metro
police.
Here the court of appeal
allows the Black Born to seek a write of Mandamus to compel police to enforce
law against obscene publication.
In Black Born V/s Attorney General case. Black Born brought an action
against Attorney General in which he sought declaration to the effect that by
signing the treaty of Rome, Her majesty Government would be surroundary a part
of sovergnity of the crown. He contended that in so doing the government would
also be acting in breach of law.
·
Govriet Case
Govriet V/s Union of post office
workers.
Major
John Govriet was retired British Army
officer and a
Political Activist. He was the founder of National
Association for Freedom (NAFF) --- which later came to came to be known a
Freedom Association. He is remember today for pioneering the use of legal
action to oppose action of trade unions and other groups which in his opinion
were interfering with personal rights and liberty.
On January
13, 1977 the general secretary of Union of Post Office workers (UPW) announced
on TV that his union executive committee had resolved to boycott all telephone
calls, mails, and telegrams to and fro South Africa in protest against apartheid
practiced in that country. If carried out this resolution would be a violation
of section 63 of Post Office Act, 1953. This TV news annoyed the Major Govriet
and on the following day i.e January 14, he appealed to the Attorney General
for letters permission to institute “Realtor Proceeding” against UPW.
In
matter of public interest it is the Attorney General who files legal proceeding
however if for some reason he does not and other person may do so with the
permission of Attorney General this is known as “Realtor Proceeding” or “Realtor
Action”
Perhaps
for the first time in record, the Attorney General refused his consent to the
proposed realtor action by Govriet. Quit undeterred Govriet brought an action
in his own name and since time was running out he applied on the same day to
the Judge in chambers for an interim injunction to restrain the proposed
boycott. The Judge Stocker J dismiss this application because in his view
Govriet had no Locus Standee to file the action given the fact that the
Attorney General in his own wisdom has refused his permission.
Govriet
immediately file an appeal in the court of appeal where Lord Denning who was
the Judge, where Lord Denning heard the argument and granted a temporary
injunction. He summoned the Attorney General – Samuel Silkin and observed that
“ it was very doubtful whether Attorney General had directed himself properly”.
When
Silkin before the court he insisted that the court of appeal had no power to
examine his reason for refusing consent because this was the role of parliament.
After a FOUR day hearing Govriet succeeded that in establishing that an
individual could challenge the Attorney General refusal.
Lord
Denning declared “Be you ever so high the law is above you” Lord Denning ruling
was over turn by the house of lords in Govriet V/s Union of post office workers
also known as Govriet Case. It caught the imagination of Mrs. Margrate Thatcher
who was then the leader of opposition in the English Parliament when Margrate
Thatcher came to the power and become the Prime Minister she effectively
clipped the wings of several trade unions of Britain.
Public-Interest Litigation (PIL, or जनहित
याचिका) is
litigation
for the protection of the public interest. In Indian law,
Article 32 of the Indian
constitution contains a tool
which directly joins the public with judiciary. A PIL may be introduced in a court of law
by the court itself (suo motu), rather than the aggrieved party or another
third party. For the exercise of the court's jurisdiction, it is not necessary
for the victim of the violation of his or her rights to personally approach the
court. In a PIL, the right to file suit is given to a member of the public by
the courts through judicial activism. The member of the public may be a non-governmental
organization (NGO), an
institution or an individual. The Supreme Court of
India, rejecting the criticism of judicial
activism, has stated that the judiciary has stepped in to give direction
because due to executive inaction, the laws enacted by Parliament and the state
legislatures for the poor since independence have not been properly
implemented.
PIL
Public Interest Litigation :
Definition, Origin & Evolution : Supreme Court –
DEFINITIONS
OF PUBLIC INTEREST LITIGATION
27. Public
Interest Litigation has been defined in the Black's Law Dictionary (6th
Edition) as under:-
"Public
Interest - Something in which the public, the community at large, has some
pecuniary interest, or some interest by which their legal rights or liabilities
are affected. It does not mean anything so narrow as mere curiosity, or as the
interests of the particular localities, which may be affected by the matters in
question.
Interest shared
by citizens generally in affairs of local, state or national
government...."
28. Advanced Law
Lexicon has defined `Public Interest Litigation' as under:-
"The
expression `PIL' means a legal action initiated in a Court of law for the
enforcement of public interest or general interest in which the public or a
class of the community has pecuniary interest or some interest by which their
legal rights or liabilities are affected."
29. The Council
for Public Interest Law set up by the Ford Foundation in USA defined
"public interest litigation" in its report of Public Interest Law,
USA, 1976 as follows: "Public Interest Law is the name that has recently
been given to efforts provide legal representation to previously unrepresented
groups and interests. Such efforts have been undertaken in the recognition that
ordinary market place for legal services fails to provide such services to significant
segments of the population and to significant interests. Such groups and
interests include the proper environmentalists, consumers, racial and ethnic
minorities and others." (M/s Holicow Pictures Pvt. Ltd. v. Prem Chandra
Mishra & Ors. - AIR 2008 SC 913, para 19).
30. This court in
People's Union for Democratic Rights & Others v. Union of India &
Others (1982) 3 SCC 235 defined `Public Interest Litigation' and observed that
the "Public interest litigation is a cooperative or collaborative effort by
the petitioner, the State of public authority and the judiciary to secure
observance of constitutional or basic human rights, benefits and privileges
upon poor, downtrodden and vulnerable sections of the society".
ORIGIN
OF PUBLIC INTEREST LITIGATION:
31. The public
interest litigation is the product of realization of the constitutional
obligation of the court.
32. All these
petitions are filed under the big banner of the public interest litigation. In
this view of the matter, it has become imperative to examine what are the
contours of the public interest litigation? What is the utility and importance
of the public interest litigation? Whether similar jurisdiction exists in other
countries or this is an indigenously developed jurisprudence? Looking to the
special conditions prevalent in our country, whether the public interest
litigation should be encouraged or discouraged by the courts? These are some of
the questions which we would endeavour to answer in this judgment.
33. According to
our opinion, the public interest litigation is an extremely important
jurisdiction exercised by the Supreme Court and the High Courts. The Courts in
a number of cases have given important directions and passed orders which have
brought positive changes in the country. The Courts' directions have immensely
benefited marginalized sections of the society in a number of cases. It has
also helped in protection and preservation of ecology, environment, forests,
marine life, wildlife etc. etc. The court's directions to some extent have
helped in maintaining probity and transparency in the public life.
34. This court
while exercising its jurisdiction of judicial review realized that a very large
section of the society because of extreme poverty, ignorance, discrimination
and illiteracy had been denied justice for time immemorial and in fact they
have no access to justice. Pre-dominantly, to provide access to justice to the
poor, deprived, vulnerable, discriminated and marginalized sections of the
society, this court has initiated, encouraged and propelled the public interest
litigation. The litigation is upshot and product of this court's deep and
intense urge to fulfill its bounded duty and constitutional obligation.
35. The High
Courts followed this Court and exercised similar jurisdiction under article 226
of the Constitution. The courts expanded the meaning of right to life and
liberty guaranteed under article 21 of the Constitution. The rule of locus
standi was diluted and the traditional meaning of `aggrieved person' was
broadened to provide access to justice to a very large section of the society
which was otherwise not getting any benefit from the judicial system. We would
like to term this as the first phase or the golden era of the public interest
litigation. We would briefly deal with important cases decided by this Court in
the first phase after broadening the definition of `aggrieved person'. We would
also deal with cases how this Court prevented any abuse of the public interest
litigation?
EVOLUTION
OF THE PUBLIC INTEREST LITIGATION IN INDIA
42. The origin
and evolution of Public Interest Litigation in India emanated from realization
of constitutional obligation by the Judiciary towards the vast sections of the
society - the poor and the marginalized sections of the society. This
jurisdiction has been created and carved out by the judicial creativity and
craftsmanship. In M. C. Mehta & Another v. Union of India & Others AIR
1987 SC 1086, this Court observed that Article 32 does not merely confer power
on this Court to issue direction, order or writ for the enforcement of
fundamental rights. Instead, it also lays a constitutional obligation on this
Court to protect the fundamental rights of the people. The court asserted that,
in realization of this constitutional obligation, "it has all incidental
and ancillary powers including the power to forge new remedies and fashion new
strategies designed to enforce the fundamental rights". The Court realized
that because of extreme poverty, a large number of sections of society cannot
approach the court. The fundamental rights have no meaning for them and in
order to preserve and protect the fundamental rights of the marginalized
section of society by judicial innovation, the courts by judicial innovation
and creativity started giving necessary directions and passing orders in the
public interest.
43. The
development of public interest litigation has been extremely significant
development in the history of the Indian jurisprudence. The decisions of the
Supreme Court in the 1970's loosened the strict locus standi requirements to
permit filing of petitions on behalf of marginalized and deprived sections of
the society by public spirited individuals, institutions and/or bodies. The
higher Courts exercised wide powers given to them under Articles 32 and 226 of
the Constitution. The sort of remedies sought from the courts in the public
interest litigation goes beyond award of remedies to the affected individuals
and groups. In suitable cases, the courts have also given guidelines and
directions. The courts have monitored implementation of legislation and even
formulated guidelines in absence of legislation. If the cases of the decades of
70s and 80s are analyzed, most of the public interest litigation cases which
were entertained by the courts are pertaining to enforcement of fundamental
rights of marginalized and deprived sections of the society. This can be termed
as the first phase of the public interest litigation in India.
In M.C. Mehta v. Union of India
& Others AIR 1988 SC 1037, this court observed that the effluent
discharged in river Ganga from a tannery is ten times noxious when compared
with the domestic sewage water which flows into the river from any urban area
on its banks. The court further observed that the financial capacity of the
tanneries should be considered as irrelevant without requiring them to
establish primary treatment plants. Just like an industry which cannot pay
minimum wages to its workers cannot be allowed to exist, a tannery which cannot
set up a primary treatment plant cannot be permitted to continue to be in
existence for the adverse effect on the public at large.
109. In yet
another case of M. C. Mehta v. Union of India & Others (2007) 1 SCC
110, a project known as "Taj Heritage Corridor Project" was initiated
by the Government of Uttar Pradesh. One of the main purpose for which the same
was undertaken was to divert the River Yamuna and to reclaim 75 acres of land
between Agra Fort and the Taj Mahal and use the reclaimed land for constructing
food plazas, shops and amusement activities. The Court directed for a detailed
enquiry which was carried out by the Central Bureau of Investigation (CBI). On
the basis of the CBI report, the Court directed registration of FIR and made
further investigation in the matter. The court questioned the role played by
the concerned Minister for Environment, Government of Uttar Pradesh and the
Chief Minister, Government of Uttar Pradesh. By the intervention of this Court,
the said project was stalled.
EVOLUTION
OF PUBLIC INTERST LITIGATION
121. The US
Supreme Court realized the constitutional obligation of reaching to all
segments of society particularly the black Americans of African origin. The
courts' craftsmanship and innovation is reflected in one of the most celebrated
path-breaking judgment of the US Supreme Court in Oliver Brown v. Board of
Education of Topeka 347 U.S. 483, 489-493 (1954). Perhaps, it would accomplish
the constitutional obligation and goal. In this case, the courts have carried
out their own investigation and in the judgment it is observed that "Armed
with our own investigation" the courts held that all Americans including
Americans of African origin can study in all public educational institutions.
This was the most significant development in the history of American judiciary.
122. The US
Supreme Court dismissed the traditional rule of Standing in Association of Data
Processing Service Organizations v. William B. Camp 397 U.S. 150 (1970). The
court observed that a plaintiff may be granted standing whenever he/she suffers
an "injury in fact" - "economic or otherwise".
123. In another
celebrated case Olive B. Barrows v. Leola Jackson 346 U.S. 249 (1953), 73 S.Ct.
1031 the court observed as under:-
"But in the
instant case, we are faced with a unique situation in which it is the action of
the state court which might result in a denial of constitutional rights
and in which it would be difficult if not impossible for the persons whose
rights are asserted to present their grievance before any court. Under the
peculiar circumstances of this case, we believe the reasons which underlie our
rule denying standing to raise another's rights, which is only a rule
of practice, are outweighed by the need to protect the fundamental
rights which would be denied by permitting the damages action to be
maintained."
No comments:
Post a Comment