Assignment 1

Subject :- HR1
Questions

Q-1. What are Human Rights, explain its growth and awareness during Nationalist Movement.

Answer :-

Synopsys :-

 Define Human Rights

Human rights are the basic rights and freedoms that belong to every person in the world,
from birth until death.

 Define fundamental rights

Fundamental rights are the basic human rights enshrined in the Constitution of India which
are guaranteed to all citizens. They are applied without discrimination on the basis of race,
religion, gender, etc. Significantly, fundamental rights are enforceable by the law, subject to
certain conditions.
 Difference between human rights and fundamental rights
 Comparison Chart

BASIS FOR
FUNDAMENTAL RIGHTS HUMAN RIGHTS
COMPARISON

Meaning Fundamental Rights means the
primary rights of the citizens
which are justifiable and written
in the constitution.
Human Rights are the basic rights
that all the human beings can
enjoy, no matter where they live,
what they do, and how they
behave, etc.

Includes Basic Rights Only Basic and Absolute Rights

Scope It is country specific. It is universal.

Basic Principle Right of freedom Right of life with dignity

Guarantee Constitutionally guaranteed Internationally guaranteed

Enforcement Enforceable by the court of law. Enforceable by United Nation

 BASIS FOR
FUNDAMENTAL RIGHTS HUMAN RIGHTS
COMPARISON

Organization.

Origin Originated from the views of Originated from the ideas of

democratic society. civilized nations.

 Brief History of human rights

The origins of Human Rights are ideally pinpointed to the year 539 BC. When the troops of Cyrus
the Great conquered Babylon. Cyrus freed the slaves, declared that all people had the right to
choose their own religion, and established racial equality.

Another cornerstone in Human Rights History is represented by the promulgation of the Magna
Charta in 1215 which introduced a raw concept of “Rule of Law” and the basic idea of defined
rights and liberties to all persons, which offers protection from arbitrary prosecution and
incarceration. Before the Magna Charta, the rule of law, now considered as a key principle for
good governance in any modern democratic society, was perceived as a divine justice, solely
distributed by the monarch or the king or, in this case, King John of England.

An evolution of the concepts expressed by the Magna Carta is represented by the English Bill of
Rights. It was an act signed into law in 1689 by William III and Mary II, who became co-rulers in
England after the overthrow of King James II. The bill outlined specific constitutional and civil
rights and ultimately gave Parliament power over the monarchy. Many experts regard the
English Bill of Rights as the primary law that set the stage for a constitutional monarchy in
England. It’s also credited as being an inspiration for the U.S. Bill of Rights (1791).

The Declaration of the Rights of Man and of the Citizen, adopted in 1789, by France’s National
Assembly , represents one of the basic charters of human liberties, containing the principles that
inspired the French Revolution.

 National movement in India

India as a whole had been ruled by emperors like Ashoka and Samudragupta in ancient times
and Akbar to Aurangzeb in Medieval times. If we go back to history there are certain incidences
which we see as the act of promoting Human Rights which include equality, freedom, good life
for all.

Raja Ram Mohan Roy fought against the social evil in indian society. Roy founded the Atmiya
Sabha and the Unitarian Community to fight the social evils, and to propagate social and
educational reforms in India. He was the man who fought against superstitions, a pioneer in
Indian education, and a trend setter in Bengali Prose and Indian press.Crusaded against Hindu
customs such as sati, polygamy, child marriage and the caste system. Demanded property
 inheritance rights for women.In 1828, he set up the Brahmo Sabha a movement of reformist
Bengali Brahmins to fight against social evils.

Ishwar Chandra Vidyasagar was always vocal about the oppression that the society inflicted on
women at that time. He was very close to his mother who was a woman of great character, who
directed him once to do something to alleviate the pain and helplessness of Hindu widows, who
were forced to live a life of abnegation. They were denied basic pleasures of life, marginalised in
the society, often exploited unfairly and treated as a burden by their family. Vidyasagar’s made it
his mission to improve the quality of life for these helpless women. He faced raging opposition
from orthodox society which termed the concept as something heretic. He challenged the
Brahminical authorities and proved that widow remarriage is sanctioned by Vedic scriptures. He
took his arguments to the British Authorities and his pleas were heard when the Hindu Widows'
Remarriage Act, 1856 or Act XV, 1856, was decreed on July 26, 1856.

The British rule in India can be seen in the Modern period. During this period, the British
Government of India had not only deprived the Indian people of their freedom but had
based itself on the exploitation of the masses, and ruined India economically, politically,
culturally and spiritually. After witnessing the colonial rule, every Indian was of the firm
opinion that the recognition, protection and implementation of human rights are not only
basic but also inalienable for them for leading a civilized life. The Preamble, Fundamental
Rights, Directive Principles of State Policy, newly added Fundamental Duties, reservation for
scheduled castes and tribes, special provisions for Anglo- Indians and other backward classes
are important constitutional provisions from the human rights point of view.

The idea of human rights emerged stronger after World War II. The extermination by Nazi Germany
of over six million Jews, Sinti and Romani (gypsies), homosexuals, and persons with disabilities
horrified the world. Trials were held in Nuremberg and Tokyo after World War II, and officials from
the defeated countries were punished for committing war crimes, "crimes against peace," and
"crimes against humanity."

Human rights is an idea whose time has come. The Universal Declaration of Human Rights is a call to
freedom and justice for people throughout the world. Every day governments that violate the rights
of their citizens are challenged and called to task. Every day human beings worldwide mobilize and
confront injustice and inhumanity. Like drops of water falling on a rock, they wear down the forces
of oppression and move the world closer to achieving the principles expressed in the Universal
Declaration of Human Rights.

Q-2. Explain the position of Human Rights in India with special reference to part III and IV of
Indian Constitution.

Answer :-

Synopsys :-

 Constitution of india
It is a Sovereign Socialist Secular Democratic Republic with a parliamentary system of
government. The Republic is governed in terms of the Constitution of India which was adopted
by the Constituent Assembly on 26th November, 1949 and came into force on 26th January,
1950.

 Part 3 of indian constitution :

(Article 12 to 35 contained in Part III of the Constitution deal with Fundamental Rights.
These are: Right to equality, including equality before law, prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters
of employment.)
1. Right to equality (Article 14-18)
Right to equality guarantees equal rights for everyone, irrespective of religion, gender,
caste, race or place of birth. It ensures equal employment opportunities in the
government and insures against discrimination by the State in matters of employment
on the basis of caste, religion, etc. This right also includes the abolition of titles as well as
untouchability.

2. Right to Freedom (Articles 19 – 22)

Freedom is one of the most important ideals cherished by any democratic society. The
Indian Constitution guarantees freedom to citizens. Freedom of speech, expression,
Freedom of assembly without arms, Freedom of association, practise any profession,
Freedom to reside in any part of the country

3. Right against Exploitation (Articles 23 – 24)

This right implies the prohibition of traffic in human beings, begar, and other forms of
forced labour. It also implies the prohibition of children in factories, etc. The
Constitution prohibits the employment of children under 14 years in hazardous
conditions.

4. Right to Freedom of Religion (Articles 25 – 28)

This indicates the secular nature of Indian polity. There is equal respect given to all
religions. There is freedom of conscience, profession, practice and propagation of
religion. The State has no official religion. Every person has the right to freely practice his
or her faith, establish and maintain religious and charitable institutions.

5. Cultural and Educational Rights (Articles 29 – 30)

These rights protect the rights of religious, cultural and linguistic minorities, by
facilitating them to preserve their heritage and culture. Educational rights are for
ensuring education for everyone without any discrimination.
 6. Right to Constitutional Remedies (32 – 35)

The Constitution guarantees remedies if citizens’ fundamental rights are violated. The
government cannot infringe upon or curb anyone’s rights. When these rights are
violated, the aggrieved party can approach the courts. Citizens can even go directly to
the Supreme Court which can issue writs for enforcing fundamental rights.

 Part 4 (directive principle of state policy in constitution)

The Directive Principles of State Policy of India are the guidelines or principles given to the institutes
for governing India and are provided Part IV (Article 36-51) of the Constitution of India.

The Constitution of India aims to establish not only political democracy but also socioeconomic
justice for the people to establish a welfare state. With this purpose in mind, our Constitution lays
down desirable principles and guidelines in Part IV.

These provisions are known as the Directive Principle of State Policy. Directive Principles of State
Policy (DPSP) aim at ensuring socio-economic justice to the people and establishing India as a
Welfare State.

Directive Principles of State Policy are in the form of instructions/guidelines to the governments at
the centre as well as states. Though these principles are non-justiciable, they are fundamental in the
governance of the country.

The idea of Directive Principles of State Policy has been taken from the Irish Republic. They were
incorporated in our Constitution in order to provide economic justice and to avoid the concentration
of wealth in the hands of a few people.

 Difference between part 3 and part 4

Position of human rights and part 3 and 4 of COI

https://blog.ipleaders.in/human-rights-constitution-india/

Assignment 2

Subject :- CPF
Questions

Q-1 Constitution, constitutionalism and Rule of law

 Define constitution :-

Constitution is a set of principles or precedents by which a state is governed. When they are
compiled into a single document, it is called codified written constitution for e.g of India. As
opposed to this, Britain's Constitution is written in numerous fundamental Acts of a legislature,
court cases or treaties.
  Importance of constitution

A constitution is important because it ensures that those who make decisions on behalf of the
public fairly represent public opinion. It also sets out the ways in which those who exercise
power may be held accountable to the people they serve. And it sets out where government
powers end by guaranteeing individuals’ specific rights and freedoms. These rights help to
assure the protection and promotion of human dignity, equality and liberty. Constitutions may
provide for the division of powers between the central government and the regions.
Constitutions should be agreed rather than imposed so as to provide an acceptable framework
for the settling of different political views. They help provide for a stable society by ensuring
that, although everybody may not agree with the government all the time, the people accept the
legitimacy of the system of choosing governments.

 Constitutionalism

The concept of constitutionalism is a mechanism that provides legitimacy to a democratic

government. It cannot and should not be confused with the legality of the acts of the officials in a
government setup. Constitutionalism is far more important than having a written Constitution. With
some exceptions most of the countries have Constitutions but it in no way means that they practice
constitutionalism. Some of the basic principles developed over time that embody the concept of
constitutionalism are separation of powers, judicial control and accountable government.

In India, constitutionalism is considered to be a natural corollary to the fundamental governance of

the country.

The Constitution of India with the aid of various legislations has developed a detailed and robust
mechanism to put into place administrative mechanisms for the smooth functioning of the
machinery of governance.

However, due to a variety of factors, the distance between the government and the governed has
been growing with every passing year. The rich are getting richer and the poor have resigned to their
fates, areas which were backward sixty years ago remain as such.

The concept of constitutionalism has been recognised by the Supreme Court in Rameshwar Prasad v.
Union of India. The Court stated, “The constitutionalism or constitutional system of Government
abhors absolutism – it is premised on the Rule of Law in which subjective satisfaction is substituted
by objectivity provided by the provisions of the Constitution itself.”

 Difference between constitution and constitutionalism

The main difference between constitution and constitutionalism lies in the fact that the constitution
is generally a written document, created by the government (often with the participation of the civil
society), while constitutionalism is a principle and a system of governance that respects the rule of
law and limits the power of the government. Most modern constitutions were written years ago, but
laws and norms had already been evolving and mutating for centuries, and continue to do so. The
constitution (and laws in general) is a living entity that should adapt to the changing features of the
modern world and of modern societies. Failing to adapt the constitution – without losing its core
principles and values – may lead to an obsolete and unadapt governance system. Other differences
between the two concepts include:

1. Constitutionalism is based on the principles outlined in the constitution – or in other core

legal documents – but it is also a principle of its own. The idea of constitutionalism is
opposed to the concept of authoritarian and despotic rule and is based on the belief that the
power of the government should be limited in order to prevent abuses and excesses;
2. The constitution is often a written document, while the principles of constitutionalism are
generally unwritten. Both constitution and constitutionalism evolve with the promulgation
of democratic ideals – although they do not always proceed at the same speed. There can be
a constitutional form of governance – that respects the rights of the citizens and promotes
democratic values – even though the national constitution is out dated. At the same time, an
inefficient democratic government may not be able to rule in a constitutional way, despite
the existence of a constitution.

 Rule of Law

The term „Rule of Law‟ is taken from England. It means that no man is above the law and that every
person is subject to the jurisdiction of ordinary courts of law, irrespective of his rank and position.
„Rule of Law‟ requires that no person should be subjected to harsh, uncivilized or arbitrary
treatment. Rule of law is associated with the word „law‟ which means that man or a society must
not govern by a man or ruler but rather than they must be govern by Law. In other words we can say
that law means law of land which is defined under Article 13 of Indian Constitution. Rules mean law
rules. Since, there is no physical existence of law so law means government based on principle. It
means all the acts of government should be reasonable and according to law. The expression “rule
of law” explains a state of affairs in which everything must be done according to law. It is a state of
affairs in which there are legal barriers to governmental arbitrariness and there are available legal
safeguards for the protection of the individuals. In simple words, it is the reverse of tyranny, the
antithesis of the rule of anarchy and fear.

 Principle of rule of law

1. Supremacy of law

As per the first postulate, rule of law refers to the lacking of arbitrariness or wide discretionary
power. In order to understand it simply, every man should be governed by law.

According to Dicey, English men were ruled by the law and the law alone and also where there is
room for arbitrarinessand that in a republic no less than under a monarchy discretionary authority
on the part of the Government must mean insecurity for legal freedom on the part of its subjects.
There must be absence of wide discretionary powers on the rulers so that they cannot make their
own laws but must be governed according to the established laws.

2. Equality before law

According to the second principle of Dicey, equality before law and equal subjection of all classes to
the ordinary law of land to be administered by the ordinary law courts and this principle emphasizes
everyone which included government as well irrespective of their position or rank. But such element
is going through the phase of criticisms and is misguided. As stated by Dicey, there must be equality
before law or equal subjection of all classes to the ordinary law of land. French legal system of Droit
Administrative was also criticized by him as there were separate tribunals for deciding the cases of
state officials and citizens separately.

3. Predominance of Legal Spirit

According to the third principle of Dicey, general principles of the Indian Constitution are the result
of the decisions of the Indian judiciary which determine to file rights of private persons in particular
cases. According to him, citizens are being guaranteed the certain rights such as right to personal
liberty and freedom from arrest by many constitutions of the states (countries). Only when such
rights are properly enforceable in the courts of law, those rights can be made available to the
citizens. Rule of law as established by Dicey requires that every action of the administration must be
backed and done in accordance with law. In modern age, the concept of rule of law oppose the
practice of conferring discretionary powers upon the government and also ensures that every man is
bound by the ordinary laws of the land as well as signifies no deprivation of his rights and liberties by
an administrative action.

Q-2 Separation of powers in India

 Introduction

In India, a separation of functions rather than of powers is followed. Unlike in the US, in India, the
concept of separation of powers is not adhered to strictly. However, a system of checks and balances
have been put in place in such a manner that the judiciary has the power to strike down any
unconstitutional laws passed by the legislature.

Today, most of the constitutional systems do not have a strict separation of powers between the
various organs in the classical sense because it is impractical. In the following sections, we will see
the prevailing system in India, what the relationship between each organ is, and the constitutional
provisions thereof.

Before proceeding with the relationships, let us examine in brief what the functions of each organ of
the government are.

 Three Organs Of Government

1. Legislature: The chief function of the legislature is to enact laws

o It is the basis for the functioning of the other two organs, the executive and the
judiciary.
o 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.
 
 2. Executive: The executive is the organ that implements the laws enacted by the legislature
and enforces the will of the state.

o It is the administrative head of the government.

o Ministers including the Prime/Chief Ministers and President/Governors form part of
the executive.
 
3. Judiciary: The judiciary is that branch of the government that interprets the law, settles
disputes and administers justice to all citizens.

o The judiciary is considered the watchdog of democracy, and also the guardian of the
Constitution.
o It comprises of the Supreme Court, the High Courts, District and other subordinate
courts.

 Relationship between Executive and Judiciary

There are several provisions in the Constitution that make the judiciary independent. This is
because, it is believed that for a democracy to remain efficient and effective, the judiciary must
be independent. The judiciary is said to be the guardian of the constitution. If the executive also
assumes judicial powers, that sort of a government tends to become oppressive.
However, there are some judicial functions which are performed by the executive as well. They
are:

1. The appointments of the judges are made by the executive.

2. The President and the Governors also enjoy the power to pardon, reprieve, etc. These
are direct judicial functions.
3. Under the system of administrative adjudication, the executive agencies have the power
to hear and decide cases involving particular fields of administrative activity.

 Relationship between Legislature and Executive

The Constitution states that the executive branch of the State (Council of Ministers) shall be
collectively responsible to the Legislature (Lok Sabha). This implies that the Parliament should
supervise the work of the government and hold it accountable for its actions.

 In a parliamentary form of government, the executive is not separated from the

legislature in that the members of the council of ministers are members of the legislature.
 The executive loses power when it loses the confidence of the legislature. The
executive/council of ministers is dismissed if it loses the legislature’s confidence before
its tenure is over. So, the legislature controls the executive through a vote of no-
confidence.
 The head of government and head of state are different. The head of the government is
the Prime Minister while the head of state is the President.
 The parliament makes laws in general broad terms and delegates the powers to the
executive to formulate detailed policy and implement them.
 In a presidential form of government, the executive is not accountable to the legislature.
One person is the heads of both the State as well as the government. A minister need
not be from the legislature.
  Relationship between Legislature and Judiciary

Even though the functions of the executive and the judiciary are well-defined in the Constitution,
the system of checks and balances ensures that each one can impose checks on the other.

 The judiciary can strike down laws that it considers unconstitutional or arbitrary.
 The legislature, on its part, has protested against judicial activism and tried to frame laws
to circumvent certain judgements.
 Judicial activism is said to be against the principle of separation of powers.
 There have been instances where the courts have issued laws and policies through
judgements. For example, the Vishakha Guidelines where the SC issued guidelines on
sexual harassment.
 In 2010, the SC directed the government to undertake the distribution of food grains.
 If the judiciary oversteps its mandate and crosses over into the territory of the legislature
or the executive, it is called judicial overreach.

 Conclusion

The doctrine of separation of powers in the strict sense is undesirable and unpractical
and therefore till now it has not been fully accepted in any of the country, but this does
not mean that the doctrine has no relevance in the world of today. The logic behind this
doctrine is still valid.

The logic behind the doctrine is of polarity rather than strict classification, meaning
thereby that the centre of authority must be dispersed to avoid absolutism. It has been
well said by Lord Action, "Power corrupts and absolute power tends to corrupt absolutely"
Conferment of power in a single body leads to absolutism. Thus, though it is important
that power shouldn't get concentrated in one hand, a system of checks and balances
must be maintained for a smooth functioning.

Q-3 Constitutional Pluralism Vs. Legal pluralism

 Pluralism Definition

In government, the political philosophy of pluralism anticipates that people with different interests,
beliefs, and lifestyles will coexist peacefully and be allowed to participate in the governing process.
Pluralists acknowledge that a number of competing interest groups will be allowed to share power.
In this sense, pluralism is considered a key element of democracy. Perhaps the most extreme
example of pluralism is found in a pure democracy, where each individual is allowed to vote on all
laws and even court decisions.

In 1787, James Madison, known as the Father of the U.S. Constitution, argued for pluralism. Writing
in the Federalist Papers No. 10, he addressed fears that factionalism and its inherent political in-
fighting would fatally fracture the new American republic. Madison argued that only by allowing
many competing factions to participate equally in the government could this dire result be avoided.
Though he never used the term, James Madison had essentially defined pluralism.

The argument for modern political pluralism can be traced to early 20th century England, where
progressive political and economic writers objected to what they saw as the growing tendency of
individuals to become isolated from each other by the effects of unrestrained capitalism. Citing the
social qualities of diverse yet cohesive medieval constructs such as trade guilds, villages,
monasteries, and universities, they argued that pluralism, through its economic and administrative
decentralization, could overcome the negative aspects of modern industrialized society.

 Constitutional pluralism

The theory of constitutional pluralism as advanced by MacCormick and Walker witnessed immense
success in its attempt to explain the relationship between courts of Member States performing
constitutional review and the Court of Justice. Despite its success, the theory has often been
criticized for its lack of normative prescriptions and legal certainty in resolving the question of the
final arbiter in the EU. It is the aim of this Article to address and move beyond these criticisms by
introducing and exploring the auto-correct function necessary for the proper and balanced
functioning of the pluralist system.

The auto-correct has the function of preventing an outbreak of conflict between the constitutional
jurisdictions involved—in the EU judicial architecture, an awareness on the part of all the actors
involved of the benefits of a pluralist setting results in conflict management and control. The auto-
correct function operates as follows: in the EU as we know it, issues prone to constitutional conflict
arise regularly, and both the Court of Justice and national constitutional jurisdictions are able,
through their respective procedural avenues, to control the extent of the conflict. There are also two
legal imperatives driving this dynamic in two opposite directions—the principle of primacy of Union
law on the one hand, and the obligation to respect the national identity of Member States on the
other.

As analyzing judicial behaviour shows, the application of self-restraint and mutual accommodation
avoids a clash between parallel sovereignty claims on EU and national levels. In particular, national
and EU law interaction demonstrates the existence of in-built conditions for the auto-correct
function's application, such as the principle of EU-friendly interpretation in national constitutional
law, or the national identity clause in primary EU law. The auto-correct function manifests itself and
brings about a balance between the different constitutional orders only through the interaction of
parallel claims to sovereignty.

 Legal pluralism

Legal pluralism is broadly the existence of multiple legal systems within the same state1, and is a key
feature of the Indian legal system. Stemming from historical foundations, this article will argue that
it is no longer fit for a modern day, democratic India which prides itself on equality and religious
freedom: it discriminates against Muslim women and exacerbates religious divisions, namely
between Muslims and Hindus.
Legal pluralism in India

India has an official faith-based pluralist system which stems from an attempt to codify existing
religious customary practices which occurred for centuries. This pluralist system comprises
‘Mohammedan’ or Shari’a law, the official legal origin of which can be traced back to the Shariat Act,
1937 which codified a proportion of the fiqh (law which has an Islamic basis and is interpreted in
Islamic sources), although it was practised long before then. Hindu law also forms part of the wider
Indian legal system and is, in particular, applied to family disputes. However, it is arguably more
inclusive than Mohammedan law since it includes Sikhs and Buddhists. Since the 2000s, Christian
Law has also become recognised as a plural jurisdiction, transforming provisions for Christians on
divorce, separation, maintenance, and adoption in the Indian Divorce (Amendment) Act 2001 to
become more like those seen in Britain, creating an intensely interwoven system of laws.

The complexity of this legal matrix is only compounded by the fact that certain regions will subscribe
to different interpretations of religious law and integrate it into a colonial era framework, such as
that seen in Goa. Therefore, the legal remedies available to an individual can vary depending on
where they live, their own religion and the predominant religion of their local area. Viewing this set-
up from an English legal perspective, this undoubtedly poses rule of law issues, specifically relating
to legal certainty and fair warning – people cannot plan their lives accordingly if they are not certain
as to which laws to follow.

Impact on women

Although the Indian constitution guarantees gender equality and freedom from gender and
religious-based discrimination, the pluralist nature of the Indian legal system has meant this
ambition has not been properly realised2. Muslim women in particular have been subject to poor
treatment under religious laws. This was particularly highlighted by the Shah Bano Begum3 case
where a Muslim woman was denied alimony from her husband under Shari’a law despite the fact
had she been a Hindu or Christian and treated under different religious laws, she would have
received redress. Although the Indian supreme court overturned the religious court’s decision and
the Muslim Women (protection of Rights on Divorce) Act 1986 was passed to protect Muslim
women following the collapse of their marriage, their rights under Shari’a law are still minimal.

Impact on religious tensions

Legal pluralism has had two key impacts on religious tensions. The aim of legal pluralism in a faith-
based context is to empower religious groups and encourage co-operation between them.
However, pluralism has caused the ‘political divide between Hindus and Muslims [to] worsen’5
through placing them into faith-based legal enclaves. Recent surveys have reflected this increase in
tensions hence 78% of Indians interviewed insisted that until a uniform civil code is established,
there will never be social cohesion between the religions in India. This suggests that legal pluralism
has been a central point in cementing the differences between Hindus and Muslims, a view
endorsed in interview with Elham Manea who noted that pluralism, by its nature, leverages one
group above another and never serves to develop social cohesion, but rather creates harsh swathes
within communities6.

Recommendations

Religious freedom is a hugely controversial issue in India, with a recent survey noting that it is one of
the most important values for Indians8. This has been recognised by the courts and politicians, and
the Indian Attorney General himself has asserted that the issue is far too political for the courts to
decide and should lie with Parliament. Thus, arguably, reform could be achieved by the Indian
Parliament abolishing the current legal system and creating a single body of law to be followed – a
true ‘one law for all’ approach.

 Constitutional Vs. Legal Pluralism

1. Constitution is much more about equality and treating each and every one with equal
platform. While the legal pluralism has much more diversity as it take into consideration
many more individual cultures and diversity in india.
2.

 Conclusion

In conclusion, legal pluralism is no longer fit for India. A new ‘one law for all’ approach is necessary
to end the discrimination experienced by many Indian Muslim women and create religious harmony
in the state.

Q-4 Federal0ism in India: Central control vs. State autonomy

 Federalism in India

India is a federal system but with more tilt towards a unitary system of government. It is sometimes
considered a quasi-federal system as it has features of both a federal and a unitary system. Article 1
of the Indian Constitution states, ‘India, that is Bharat, shall be a union of states’. The word
federation is not mentioned in the constitution.

Elements of federalism were introduced into modern India by the Government of India Act of 1919
which separated powers between the centre and the provincial legislatures.

Indian Constitution is aid to be a federal structure only because it is said that it has clear
demarcation of boundaries between central & the state government similar to that of U.S. India
having legislative and executive authority divided between the centre and the state.

Chief essentials for a constitution to be federal are:

1. Dispersion of powers between the center and the unit states forming federation among a number
of co-ordinate bodies, controlled by constitution.

2. Rigidity – neither the center nor the state has power to amend the provision of constitution
relating separation of powers.

3. A written constitution

4. Domination of the constitution – neither of center or state have power to nullify the constitution

5. An independent body and unprejudiced authority (Eg. Judiciary)

 Importance of Federalism in India

Before we go into details about the importance of federalism in India one must examine in brief the
features of federalism in order for a better understanding

Article 200 of the Indian Constitutions stipulated that the states must obey the laws made by the
Central government and during emergency situations it empowers the Union Government to make it
all powerful

 Single Constitution
 Single citizenship
 Flexibility of Constitution
 Integrated judiciary
 Appointment of the Centre
 All India Services
 Emergency provisions

Thus, federalism becomes a relevant and important factor of modern politics. The core objectives of
Indian federalism is unity in diversity, decentralization in administration and devolution in authority.
The state will be able to pursue goal of common welfare in the midst of diversity through federalism

But like all political systems it will have its fair share of challenges

Challenges of Indian Federalism

Below are some of the challenges regarding federalism in India

1 .Regionalism

Regionalism is where and individuals region is given preference, at times that of other regions as
well. In a country as diverse and geographically vast as India, regionalism can tends to rear its ugly
head from time to time. Some factors can be cultural as in the example of the Northeast states
whose denizens feel that they are not culturally close enough to the rest of the country or the case
of the southern states who feel they are not given their fair share of central funds despite having
large states
2. Centralized Amendment Power
In a typical federation, the power of amendment to the Federal Constitution lies on a shared basis
between the federation and its units. In India, the power of constitutional amendment lies with the
Centre under Article 368 and other provisions. Although ratification of half of the states is sought for
in some limited areas, the states in the Indian Union have virtually no power in this critical area of
governance.

3. Language Conflicts

Diversity in languages in India sometimes causes a blow the federal spirit of the Constitution. There
are 22 languages constitutionally approved in India. Besides, hundreds of dialects are spoken across
the country. Trouble arises when the strongest unit of the federation attempts to force a particular
language on others. The tussle for official language in India is still a burning issue. The southern
states’ opposition to Hindi as the official language of India has led to deep-seated language crisis in
India.

4. Economic Incompatibilities of the units

Differences economic standards and relative economic and fiscal incompatibilities among the
constituent states also pose a threat to a federation. The forces of imbalances in the field are
demands for economic planning and development and for regional economic equality and financial
autonomy of states. Demand for a financial equality of a region creates problems in a federation.

In India, some states are declared as poor and on the principle of equalization, are getting grants-in-
aid. But the dilemma in a federation emerges that if the principle of equalization is adhered to, the
national income and the total income growth will suffer.

5. Centralised Planning

Although economic and social planning is found in the Concurrent List of the Seventh Schedule to
the Constitution, the Union Government enjoys unbridled authority over national and regional
planning in India. Centralised planning, through the Planning Commission, now NITI Aayog appointed
by the Centre, considerable preponderance in legislative power for the Union, the financial
dependence of the states on the Centre’s mercy, the administrative inferiority of the states make
the states meek and weak.

 Main Differences Between Federal Government and State Government

The federal government has more power and responsibilities as compared to the state government
because it legislates national and foreign affairs as well and also regulates the functioning of all
states. On the other hand, the state government will only regulate the issues and affairs of its state.

The federal government has the authority to establish inferior courts so that it would be easier to
regulate the legality, but the state government does not have the power to do so.

The federal government can raise the forces or armies and also responsible for maintaining them,
but the state government has no interference in raising the armies. It only works for the citizen
residing in its state.
The laws play a significant role in operating a nation. Laws formulated by the federal government are
applicable nationwide and followed by all the states, but the laws formulated by the state
government are applicable only to the citizens of that state.

It is important to have foreign commerce or trade because it eventually contributes to the economic
development of the country. The federal government is responsible for international trade and
operates the functioning of commerce related to foreign countries. On the contrary, the state
government cannot regulate international trade.

Q-5 Balance for free speech : Rights vs. Restrictions

 Introduction

The freedom of expression cannot be absolute in an orderly society, and this raises crucial issues of
the permissible limits of restrictions on freedom of expression. Such issues involve consideration of
the nature of the restriction, its scope and extent, its duration and the presence or absence of an
efficacious corrective machinery to challenge the restriction. Generally, it is the judiciary which
performs the task of reconciling freedom of expression with certain imperatives of public interest
such as national security, public order, public health or morals, and individual rights such as the right
to reputation and the right of privacy. The crux of the matter is whether censorship is ever justifiable
and, if so, in what circumstances. In India Judiciary has taken enormous effort to ensure delicate
balance between Freedom of Speech and Expression and Reasonable restriction. It has pronounced
several landmark judgements. THE ESSENCE OF FREE SPEECH is the ability to think and speak freely
and to obtain information from others through publications and public discourse without fear of
retribution, restrictions or repression by the Government.

ELEMENTS OF FREEDOM OF SPEECH & EXPRESSION:

1. This right is available only to a citizen of India and not to foreign nationals.

2. The freedom of speech under Article 19(1) (a) includes the right to express one’s views and
opinions at any issue through any medium, e.g., by words of mouth, writing, printing, picture, film,
movie etc.

3. This right is, however, not absolute and it allows Government to frame laws to impose reasonable
restrictions in the interest of sovereignty and integrity of India, security of the state, friendly
relations with foreign states, public order, decency and morality and contempt of court, defamation
and incitement to an offence.

4. This restriction on the freedom of speech of any citizen may be imposed as much by an action of
the State as by its inaction. Thus, failure on the part of the State to guarantee to all its citizens the
fundamental right to freedom of speech and expression would also constitute a violation of Article
19(1) (a).

 Right of Freedom of Speech and Expression

A basic element of a functional democracy is to allow all citizens to participate in the political and
social processes of the country. There is ample freedom of speech, thought and expression in all
forms (verbal, written, broadcast, etc.) in a healthy democracy.
Freedom of speech is guaranteed not only by the Indian Constitution but also by international
statutes such as the Universal Declaration of Human Rights (declared on 10th December 1948),
the International Covenant on Civil and Political Rights, the European Convention on Human
Rights and Fundamental Freedoms, etc.

 This is important because democracy works well only if the people have the right to
express their opinions about the government and criticise it if needed.
 The voice of the people must be heard and their grievances are satisfied.
 Not just in the political sphere, even in other spheres like social, cultural and economic,
the people must have their voices heard in a true democracy.
 In the absence of the above freedoms, democracy is threatened. The government will
become all-too-powerful and start serving the interests of a few rather than the general
public. 
 Heavy clampdown on the right to free speech and free press will create a fear-factor
under which people would endure tyranny silently. In such a scenario, people would feel
stifled and would rather suffer than express their opinions.
 Freedom of the press is also an important factor in the freedom of speech and
expression.
 The second Chief Justice of India, M Patanjali Sastri has observed, “Freedom of Speech
and of the Press lay at the foundation of all democratic organizations, for without free
political discussion no public education, so essential for the proper functioning of the
process of Government, is possible.”
 In the Indian context, the significance of this freedom can be understood from the fact
that the Preamble itself ensures to all citizens the liberty of thought, expression, belief,
faith and worship.
 Liberal democracies, especially in the West, have a very wide interpretation of the
freedom of speech and expression. There is plenty of leeways for people to express
dissent freely.
 However, most countries (including liberal democracies) have some sort of censorship in
place, most of which are related to defamation, hate speech, etc.
 The idea behind censorship is generally to prevent law and order issues in the country.

 Restriction on Freedom of Speech

Freedom of speech is not absolute. Article 19(2) imposes restrictions on the right to freedom of
speech and expression. The reasons for such restrictions are in the interests of:

1. Security
2. Sovereignty and integrity of the country
3. Friendly relations with foreign countries
4. Public order
5. Decency or morality
6. Hate speech
7. Defamation
8. Contempt of court

The Constitution provides people with the freedom of expression without fear of reprisal, but it
must be used with caution, and responsibly.
Freedom of Speech on Social Media
The High Court of Tripura has held that posting on social media was virtually the same as a
fundamental right applicable to all citizens, including government employees. It also asserted that
government servants are entitled to hold and express their political beliefs, subject to the
restrictions laid under the Tripura Civil Services (Conduct) Rules, 1988.
In another significant judgment, the HC of Tripura ordered the police to refrain from prosecuting
the activist who was arrested over a social media post where he criticized an online campaign in
support of the Citizenship Amendment Act (CAA), 2019 and warned people against it. The High
Court held that these orders are in line with the very essence of the Indian Constitution.
Hate Speech
The Supreme Court of India had asked the Law Commission to make recommendations to the
Parliament to empower the Election Commission to restrict the problem of “hate speeches”
irrespective of, whenever made. But the Law Commission recommended that several factors
need to be taken into account before restricting a speech, such as the context of the speech, the
status of the maker of the speech, the status of the victim and the potential of the speech to
create discriminatory and disruptive circumstances.
Freedom of Speech in Art
In relation to art, the court has held that “the art must be so preponderating as to throw obscenity
into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be
overlooked.” 
There are restrictions in what can be shown in cinemas and this is governed by the
Cinematograph Act, 1952. You can read more about this and the Censor Board in India here.

Safeguards for Freedom of Speech and Expression under Article 19(2)

The Constitution of India guarantees freedom of speech and expression to all its citizens,
however, these freedom are not absolute because Article 19 (2) of the constitution provides a
safeguard to this freedom under which reasonable restrictions can be imposed on the exercise of
this right for certain purposes. Safeguards outlined are discussed below-
Article 19(2) of the Indian constitution allows the state to make laws that restrict freedom of
speech and expression so long as they impose any restriction on the –

1. The state’s Security such as rebellion, waging war against the State, insurrection and not
ordinary breaches of public order and public safety.
2. Interest id Integrity and Sovereignty of India – this was added by the 16th constitutional
amendment act under the tense situation prevailing in different parts of the country. Its
objective is to give appropriate powers to impose restrictions against those individuals or
organizations who want to make secession from India or disintegration of India as
political purposes for fighting elections.
3. Contempt of court: Restriction can be imposed if the speech and expression exceed the
reasonable and fair limit and amounts to contempt of court.
4. Friendly relations with foreign states: It was added by the First Amendment Act, 1951 to
prohibit unrestrained malicious propaganda against a foreign-friendly state. This is
because it may jeopardize the maintenance of good relations between India and that
state.
5. Defamation or incitement to an offense: A statement, which injures the reputation of a
man, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule,
or contempt. The civil law in relating to defamation is still uncodified in India and subject
to certain exceptions.
6. Decency or Morality – Article 19(2) inserts decency or morality as grounds for restricting
the freedom of speech and expression. Sections 292 to 294 of the Indian Penal Code
gives instances of restrictions on this freedom in the interest of decency or morality. The
sections do not permit the sale or distribution or exhibition of obscene words, etc. in
public places. However, the words decency or morality is very subjective and there is no
strict definition for them. Also, it varies with time and place.
Subject :- Mass media

Questions

Q-1 Explain in detail various types of Ownership.

https://www.investopedia.com/ask/answers/051315/what-difference-between-horizontal-
integration-and-vertical-integration.asp

Q-2 Explain in detail the difference between visual and non- Visual Media and its impact on People’s
minds.

1. Visual media
2. Non-visual media
3. Difference between visual and non-visual media
4. Impact on peoples mind

Q-3 Define OTT platforms. Explain in detail the concept of OTT Platforms.

 What is OTT platform

What are OTT platforms? OTT, or over-the-top platforms, are audio and video hosting and streaming
services which started out as content hosting platforms, but soon branched out into the production
and release of short movies, feature films, documentaries and web-series themselves.

Initially, major OTT platforms in India, including Netflix, Hoststar, Amazon Prime, etc. were governed
by self-regulatory bodies. But, in 2020, the Government of India has moved these Over The Top
platforms under the administration of the Ministry of Information and Broadcasting.

New guidelines concerning OTT Platforms are mentioned in the Information Technology Rules 2021
that came into effect from 26th May 2021.

This is an important topic for candidates preparing for the upcoming IAS Exam from the GS II and III
Mains perspectives. Questions based on the same may be asked in the Government Policies &
Interventions, Issues Relating to Development, and IT & computers part of the examination.

 OTT Platforms in India – A Brief Background

In India, no fixed body has ever been assigned to regulate the OTT platforms. But in 2019, amid
various complaints and issues raised against the digital content on these online mediums, the
Government decided to take actions against the same.
It was in October 2020 that the Supreme Court ordered the Central Government to take up the
charge of the digital content showcased on these mediums and finally, the OTT platforms will now
be administered by the Ministry of Information and Broadcasting (MIB).

In January 2019, eight video streaming platforms had signed a self-regulatory code that stated a set
of guiding principles for the content which can be displayed online. However, there were 5 terms
and conditions which had to be mandatorily followed:

 No such content shall be added on these platforms which would cause any disrespect to the
national emblem or national flag
 Display of content which can hurt religious sentiments could not be streamed
 Visuals promoting child pornography to be strictly prohibited
 Content which is banned by the law or order of the country could not be streamed
 Terrorism of any kind cannot be promoted

However, the Union Government disapproved of this code formed by the Internet and Mobile
Association of India (IAMAI), and Digital Curated Content Complaints Council (DCCC) as no specific
and elaborate set of rules were released.

 Regulations on OTT and Digital Content in India

Before discussing the rules and regulations which have been defined by the Ministry for the
function of OTT platforms in India, let us first understand the need for regulating the digital
content. 
What is the need to regulate the Digital content in India on OTT platforms?

 With the increasing usage of the internet each day and multiple genres of media and
content being released, the Government had to maintain the standards of traditional and
digital/online content
 Multiple complaints and issues had been raised by the people of the country, concerning
the things being shown online. Government sought a third party interference to maintain
the content released 
 In India, OTT is the only platform that was self-regulatory, thus to make it equivalent to
similar platforms like television and radio, the Government shifted the administration of
this sector to MIB
OTT Platform Regulations under the Ministry of Information and Broadcasting (MIB)

 Since the Supreme Court passed the judgement in October 2020, no final decisions have
been revealed as yet by the Union Government regarding the measures which will be
taken to regulate the digital content
 Similar directives might be followed as are compiled by the Central Board Of Film
Certification (CBFC) for movies, News Broadcasting Standards Authority (NBSA) for
television, and Press Council of India for print media
 A legal framework will be set up to ensure that nobody, or producer tends to break the
rules set by the Ministry.
 On February 2021, a new set of regulations were released by the Ministry of Information
and Broadcasting
Thus, finally, the Government decided to undertake OTT platforms and their censorship rights under
the Ministry of Information and Broadcasting.

 Benefits of Over The Top Platforms

There are multiple benefits of using OTT platforms and why they have become so famous within
no time in India. 

 Cost-Effective – Anyone willing to watch online digital content, can register themselves
and pay a monthly or yearly subscription amount which makes it cost-effective
 Easy Access – One can log in to these OTT platforms through mobile applications,
smart TV, laptops, tablets, etc. The only requirement is an internet connection
 Creative and Unusual Content – Through these over the top platforms, various creative
ideas have come to the forefront which could not be brought across due to censorship or
regulatory laws
 An open platform for Entertainment Industry – The biggest advantage of this platform
is that it has provided a medium for new talent to get more opportunities as the number of
projects are much higher in comparison to television or films
 Platform for International content – Any Indian content uploaded on these platforms
can be viewed internationally. This gives a broader outreach of content and talent

 Disadvantages of OTT Platforms

Along with advantages the OTT platforms have various issues and challenges which they need
to overcome:

 May affect social-political harmony – Since there is no censor board to review the
content, there are chances that the content may affect social or political harmony and
hurt people’s sentiments on certain issues
 No regulatory board – No organisation, department, or body is held responsible for the
content that goes online. This has always been one of the biggest concerns for the
Government of the country
 Threat to Culture and Tradition – The modern and fresh content releasing on OTT
platforms has been accepted and appreciated by the people in India. However, there still
are a few who have not been able to accept this unique content. Thus, the government
needs to be accountable to them as well
Moving forward, the Ministry of Information and Broadcasting shall have to focus on maintaining
the quality of content being added digitally, ensure that it does not hurt the sentiments of the
people, and promote new and fresh talent and content. 

Q-4 Explain in detail the Freedom of Press under Art-19(1)(a).

 Article 19(1)

Article 19(1) of the Constitution of India guarantees six fundamental freedoms to every citizen of

India, namely-

a) Freedom of speech and expression;

b) Freedom to assemble peacefully and without arms;
 c) Freedom to form associations, unions or co-operative societies;
d) Freedom to move freely throughout the territory of India;
e) Freedom to reside and settle in any part of the territory of India, and
f) Freedom to practice any profession, or to carry on any occupation, trade or business. 

 Article 19(1)(a)

In India under Article 19(1)(a) of the Constitution of India, “all citizens shall have the right to freedom
of speech and expression”. In the Preamble to the Constitution of India the people of India declared
their solemn resolve to secure to all its citizens liberty of thought and expression.

 Freedom of Press

Freedom of press or media refers to the rights given by the Constitution of India under the freedom
and expression of speech in Article 19(1)(a). It encourages independent journalism and promotes
democracy by letting the people voice their opinions for or against the government’s actions.

Article 19 was brought to light after the Romesh Thappar vs State of Madras case highlighted the
importance of media being the fundamental basis of all democratic organizations. However, it
recognised the ‘public safety and public order’ under Article 9 (1-A) and dismissed the case.

Venkataramiah J. of the Supreme Court of India in Indian Express Newspapers (Bombay) (P) Ltd. v.
Union of India has stated: “In today’s free world, freedom of the press is the heart of social and
political intercourse. The press has now assumed the role of the public educator making formal and
non-formal education possible on a large scale, particularly in the developing world, where television
and other kinds of modern communication are not still available for all sections of society. The
purpose of the press is to advance the public interest by publishing facts and opinions without which
a democratic electorate (Government) cannot make responsible judgments. Newspapers being
purveyors of news and views having a bearing on public administration very often carry material
which would not be palatable to Governments and other authorities.”

Freedom of press and media is widely recognised in India. It does have reasonable restrictions under
Article 19(2) to protect the safety of the people of the nation.

At the heart of the declaration in Article 19 it states, “Everyone has the right to freedom of opinion
and expression, this right includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and regardless of frontiers.”

What are the rights of the media?

Freedom of the Press is nowhere mentioned in the Constitution. It is believed to be covered under
Freedom of Speech and Expression. Hence, the rights of a common citizen are the same as the rights
of a media or press house.

The media has certain rights to challenge the government and showcase the issues gaining rapid
attention by the people through various media sources and houses. Some rights are:
 a) Defamation and free press
b) Freedom of speech and expression
c) Right to publish and circulate
d) Right to receive information
e) Right to conduct interviews
f) Right to report court proceedings
g) Right to advertise

However, there are certain restrictions in Article 19(2) to protect the nation and its integrity. The
restrictions can be imposed in case of threats against:

a) Sovereignty and integrity of India

b) Security of the State
c) Friendly relations with foreign states
d) Public order, decency or morality
e) Contempt of court
f) Defamation
g) Incitement to an offence

 Why is freedom of the press important in India?

Free exchange of ideas: The press inspires people to think beyond the social norms and gives a
platform to exchange ideas and thoughts that deserve to be heard by people all around the nation.

Holding the person or body accountable for their actions: Often, people try to cover up their actions
and settle a case without bringing the media into it. The press brings to light such situations and
makes sure that justice is served correctly with the backing of the common people.

Voice of the people: The press acts as a channel which writes and speaks the thoughts of the
majority of people. It focuses on the issues that are suppressed and brings forward the ones that
should be talked about.

Fourth pillar of democracy: Since the media is an independent body that challenges the
Government, it can be referred to as the fourth pillar of democracy alongside the judiciary,
legislative and executive bodies of the Government.

https://www.legalserviceindia.com/article/l448-Freedom-of-Press.html

https://www.lawctopus.com/academike/freedom-of-speech-and-expression/#:~:text=In%20India
%20under%20Article%2019,liberty%20of%20thought%20and%20expression.

Q-5 Explain in detail the Censorship on films with abbas case.

Assignment

lSubject :- Constitution and new challenges

Questions

Q.1 Explain various provisions regarding inter-state water disputes under Indian constitution and
other laws.

Answer

What is Water Dispute Resolution?

All the major river basins and some among the medium river basins are of inter-state nature. As
the development of projects by one state on an inter-state river may affect the interests of other
basin states, inter-state differences arise with regard to the use, distribution and control of waters
of inter-state river basins.
Agreements on inter-State rivers
The first step to resolving inter-state water disputes in mutual discussions and negotiations. The
states or parties involved can mutually negotiate on the terms and conditions and form an
agreement. 
In case, these negotiations do not work out, the next initiative is taken by the government, under
the Inter-State River Water Disputes Act, 1956. Then comes the Inter-state Water Disputes
Tribunals in India into force. The active tribunals in the country include:

Tribunal Year of States involved

formation

Krishna Water Disputes Tribunal II 2004 Andhra Pradesh, Maharashtra, Telangana &
Karnataka

Mahanadi Water Disputes Tribunal 2018 Chhattisgarh & Odisha

Mahadayi Water Disputes Tribunal 2010 Karnataka, Goa & Maharashtra

Ravi & Beas Water Tribunal 1986 Rajasthan, Haryana & Punjab
 Vansadhara Water Disputes 2010 Odisha & Andhra Pradesh
Tribunal

Constitutional provision for inter state provisions

Article 246 of the Constitution deals with the subject matter of laws to be made by the Parliament
and by the Legislatures of the States. 
Discussed below are the laws and the provisions under the Indian Constitution for inter-state
water disputes:

 Issues related to water supplies, irrigation and canals, drainage and embankments, water
storage and water power are mentioned under Entry 17 of State List 
 The regulation and development of inter-State rivers and river valleys for the interest of
the public falls under Entry 56 of the Union List. This provision empowers the Union
government 
 Article 262 (1) – “Parliament may, by law, provide for the adjudication of any dispute or
complaint with respect to the use, distribution or control of the waters of, or in, any inter-
State river or river valley.”
 Article 262 (2) – “Notwithstanding anything in this Constitution, Parliament may, by law,
provide that neither the Supreme Court nor any other court shall exercise jurisdiction in
respect of any such dispute or complaint as is referred to in clause (1).”

What is the Inter-State River Water Disputes Act, 1956?

The Interstate River Water Disputes Act, 1956 was enacted under Article 262 of the Constitution
of India. to resolve the water disputes that would arise in the use, control and distribution of an
interstate river or river valley.
Over the years many amendments have been made in this Act to further simplify and ease out
the agreements and settlements between the related states. 
Inter-State River Water Disputes (Amendment) Bill, 2019 
The latest amendment to this Act was introduced in Lok Sabha on July 25, 2019. It will further
streamline the adjudication of inter-State river water disputes. The Bill seeks to amend the
Inter-State River Water Disputes Act, 1956 with a view to streamline the adjudication of inter-
state river water disputes and make the present institutional architecture robust.

Conclusion
The main motive behind having constitutional remedies for resolving water disputes is to avoid
any kind of inter-state contention and disagreements. 
With the latest amendments, the adjudication of water disputes can be speeded up. The idea of
constituting a single tribunal with different benches along with fixation of strict timelines for
adjudication will result in expeditious resolution of disputes relating to inter-state rivers. 
The Centre’s proposal to set up an agency alongside the tribunal, that will collect and process
data on river waters can be the right step in this direction.
All these measures will streamline the process of resolving such inter-state water disputes in the
country. 

Q.2 Explain various types of emergencies under Indian Constitution.

Three Types of Emergency Under The Indian Constitution

Black law’s dictionary defines emergency “as a failure of social system to deliver reasonable
conditions of life”. The term emergency may be defined as “circumstances arising suddenly that
calls for immediate action by the public authorities under the powers especially granted to them”.
Dr. B.R Ambedkar claimed that the Indian Federation was unique as during the times of
emergency it could convert itself into an entirely unitary system. In India, the emergency
provisions are such that the constitution itself enables the federal government acquire the
strength of unitary government whenever the situation demands. During such urgent needs all
the pacific methods should be exhausted and emergency should also be the last weapon to use
as it affects India’s federal feature of government.

There are three types of emergencies under the Indian Constitution namely-
· National Emergency
· Failure of constitutional machinery in states
· Financial Emergency
National Emergency

Article 352 of the Indian Constitution talks about the national emergency. National emergency is
imposed whereby there is a grave threat to the security of India or any of its territory due to war,
external aggression or armed rebellion. Such emergency shall be imposed by the president on
the basis of written request by the council of ministers headed by the Prime Minister. When they
are satisfied that they are satisfied that there is an eminent danger thereof.

Every proclamation is required to be laid before each House of Parliament, it will cease to
operate after one month from the date of its issue unless in the meantime it is approved by the
parliament, the proclamation may continue for a period of 6 months unless revoked by the
president. For further continuance of emergency the resolution has to be passed by either house
of parliament by a majority of not less than two-third members of the houses.

During the times of such emergency the executive, legislative and financial power rests with the
centre whereas the state legislature is not suspended. The union government under Art.250 of
the constitution gets the power to legislate in regards to subjects enumerated in the state list.
Except Art20 and 21 all the fundamental rights are suspended. Under Art.359 the president may
suspend the right to move to the courts for enforcement of fundamental rights during the time of
emergenc

Failure Of Constitutional Machinery In State

Article 256 talks about the failure of constitutional machinery in state also known as the
President’s rule. If the president on Governor’s report or otherwise is satisfied that the situation
has arisen that the government can’t be carried in accordance with the constitutional provisions
then, he may issue State emergency.

President can declare emergency either by the report of Governor or he himself is satisfied that
the situation is such that the emergency has to be imposed. But at times, President may declare
emergency when a report is not received from the governor. This was done by President
Venkataraman in 1991 in the state of Tamil Nadu even though he didn’t receive a report from the
governor.

After the 42th Amendment of the constitution the state emergency was made immune from
judicial review. But later in the 44th Amendment the legality of President’s rule could be
challenged

The proclamation relating to state emergency shall be laid before each House of Parliament
unless both Houses approve it, the emergency shall cease to have effect after the expiry of a
period of two months. Further the duration of proclamation can be extended to 6 months each
time by both Houses of Parliament passing resolution approving its continuance. Beyond the
period of an year the proclamation can only be continued if the Election Commission certifies that
it is not possible to hold election in the state or that territory. The consequences of state
emergency are-

· The president assumes all the executive power of the state himself. The state administration
runs by him or any person appointed by him generally the Governor.
· During such proclamation, the state assembly is either dissolved or suspended. But the MLA’s
do not lose their membership of the Assembly.
· Parliament makes laws regarding the state list. The parliament only passes the budget for the
state.
· The High court of the state functions independently.
· President also proclaims ordinances in the state.

During the state emergency the Union government has absolute control over the state except the
judiciary.
If one looks at the past instances of state emergency in the country, three common grounds
emerge that have been invoked under Art.356- breakdown of law and order, political instability,
corruption and maladministration.

In Rameshwar Prasad V. UOI (Bihar Assembly Dissolution Case) it was held that the
presidential proclamation dissolving state assembly in Bihar under Art.356 was unconstitutional
on extraneous and irrelevant ground. The court said that the state governor misled the centre in
recommending dissolution of state assembly.
In the historic case of S.R Bommai V. UOI, a full bench of the Karnataka High court produced
different opinion about the imposition of the President’s rule in Karnataka, while in other states
the court held that it was in violation of the constitution and would have restored the original
position.
Financial Emergency

The president under Article 360 of the constitution has the power to declare financial emergency
if he is satisfied that the financial stability or the credit of India or any part of its territory is
threatened. It has to be laid before both the Houses of Parliament and ceases to operate at the
expiration of two months unless meanwhile approved by the resolution of Houses.

During the operation of financial emergency, the executive authority of the union extends to the
giving of directions to any state to observe certain specified canons or financial propriety and
such other directions that the President may find necessary. The directions may include
reduction of salaries or allowance of those serving a state, of all those in connection with the
affairs of union including judges of high court and Supreme Court. There has been no occasion
of financial emergency in India.

Conclusion
During the period of emergency for the execution of power there might be infringement of
Fundamental rights of individuals, which are judicially granted by the Constitution of India. The
validity of actions must be reviewed to deter political gains and give way to political interest.
Despite abuse of powers of the emergency provisions still have an important role to play in the
conditions prevailing in India, though it still remains a controversial issue in the country

Q.3 Why the definition of "state" under article 12 needs to be widened ? Support your answer with
case laws.

Article 12 - Definition of State

In the applications of the provisions of Fundamental Rights for Indian Citizens, the term
‘State’ has been used in a wide concept. To provide clarity to the term, Article 12 of the
Indian Constitution defines it. This article will briefly mention the significance of Article 12
and the latest developments regarding the same, which will be important for the Indian Polity
syllabus
Article 12 defines ‘State’ as:

1. Legislative and Executive Organs of the Union Government:

1. Indian Government
2. Indian Parliament – Lok Sabha, Rajya Sabha
2. Legislative and Executive organs of the State Government:
1. State Governments
2. State Legislature – Legislative Assembly, Legislative Council of State
3. All local authorities
1. Municipalities – Municipal Corporations, Nagar Palika, Nagar Panchayats
2. Panchayats – Zila Panchayats, Mandal Panchayats, Gram Panchayats
3. District Boards
4. Improvement Trusts, etc.
4. Statutory and Non-Statutory Authorities
1. Statutory Authorities Examples:
1. National Human Rights Commission
2. National Commission for Women
3. National Law Commission
4. National Green Tribunal
5. National Consumer Disputes Redressal Commission
6. Armed Forces Tribunal
2. Non Statutory Authorities Examples
1. Central Bureau of Investigation
2. Central Vigilance Commission
3. Lokpal and Lokayuktas

Is Article 12 a Article 12 in itself is not a fundamental right technically, but it defines the
fundamental right? term ‘State’ for the Fundamental Rights that are entailed in the Article 14-
35.

Is Judiciary a State There is no explicit mention of Judiciary (Supreme Courts, High Court, or
under Article 12? State/District Courts) as a ‘State’ in Article 12. However, the organs of the
judiciary cannot make rules that are in itself violative of the Fundamental
Rights.
The need for constitutional protection against the state has compelled the creation of certain
fundamental rights included in part III of the constitution. Provided to every citizen as a
guarantee against the actions of the state, they are enforceable against an individual or
authority only where the violation in question comes within the definition in Article 12.
Under the concept unlike the other legal rights, which are the creation of the State, the
fundamental rights are claimed against the State. Therefore, whether a Constitution says it or
not, it is generally assumed that the fundamental rights given in it are available only against
the State, i.e. against the actions of the State and its officials.

In one of its early decisions, P.D. Shamdasani v. Central Bank of India Ltd (AIR 1952 SC
59), the Supreme Court confirmed this position. In that case, the petitioner sought the
protection of the court to enforce his rights in Articles 19(1) (f) and 31 against the Central
Bank of India Ltd. The court dismissed the petition and said; “The language and structure of
article 19 and its setting in part III of the Constitution clearly show that the article was
intended to protect those freedoms against the state action…. Violation of rights of property
by individuals is not within the purview of the article.” For this reason the Constitution of the
United States, first amongst the modern written constitutions to provide for the fundamental
rights, applied those rights only to state action even though the Constitution does not say so.

The same conception has played a role in the application of the fundamental rights in our
Constitution though some of them are, expressly applicable to non-state action and some
others are not expressly confined to state action.

Article 12 of the constitution provides an all-inclusive definition of “state” covering every

governmental authority, legislative or executive, central, state or local and the rights as
guaranteed against violation by every one of these authorities. The characterization of the
word “state” implies the authorities and instrumentalities functioning within or outside the
territory of India: The Government and Parliament of India, The government and legislatures
of each of the states, all local authorities and other authorities within the territory of India or
under the control of the government of India.

Rupa Ashok Hurra v. Ashok Hurra Case – SC reaffirmed that Fundamental Rights
cannot be violated by any judicial proceedings and also that Superior Courts of Justice
do not fall under the ambit of Article 12

Q.4 Write a detailed note on: Election commission, its powers, functions and duties.

Election Commission of India - Know Article 324 for UPSC

The Constitution of India has established a permanent and independent body to ensure free
and fair elections in the country known as the Election Commission. The commission is
responsible for holding Lok Sabha elections of India.
It is an important topic for IAS Exam, coming under Indian Polity syllabus. This article will
hence talk about Election Commission of India, Article 324 (pertaining to the independence
and impartial functioning of Election Commission,) its powers and responsibilities and more.
Aspirants can also download the UPSC notes PDF of the topic from the link given below.
What is Article 324?
The Constitution provides the Election Commission of India with the power of direction,
superintendence, and control of elections to parliament, state legislatures, the office of
president of India and the office of vice-president of India.
The Election Commission is an all-India body that is common to both the Central government
and the State governments. It must be noted here that the commission does not deal with the
elections to the Municipalities and Panchayats in the states. Hence, a separate State Election
Commission is provided by the Constitution of India.

Constitutional Appointment of ECI

Since its inception in 1950 and till 15 October 1989, the election commission was a one-
member body with only the Chief Election Commissioner (CEC) as its sole member.

 On 16 October 1989, the voting age was changed from 21 to 18 years. So, two more election
commissioners were appointed by the president in order to cope with the increased work of
the election commission.
 Since then, the Election Commission was a multi-member body that consisted of 3 election
commissioners.
 Later on, the two posts of election commissioners were eliminated in January 1990 and the
Election Commission was reverted to the previous position.
 This was repeated again later in October 1993 when the president appointed two more
election commissioners. Since then, the Election Commission functions as a multi-member
body comprising of 3 commissioners.
 The chief and the two other election commissioners have the same powers and emoluments
including salaries, which are the same as a Supreme Court judge.
 In case of a difference of opinion amongst the Chief Election Commissioner and/or two other
election commissioners, the matter is decided by the Commission by a majority.
 The office is held by them for a term of 6 years or until they attain 65 years, whichever
happens first. They can also be removed or can resign at any time before the expiry of their
term.

Independence of the Election Commission

Article 324 of The Constitution of India mentions the provisions to safeguard and ensure the
independent and impartial functioning of the Election Commission which is as follows.

 The chief election commissioner is provided with security of tenure. He cannot be removed
from his office except in the same manner and on the same grounds as a judge of the
Supreme Court. In other words, he can be removed by the President on the basis of a
resolution passed to that effect by both the Houses of Parliament with a special majority,
either on the ground of proved misbehaviour or incapacity.
 Thus, he does not hold his office until the pleasure of the president, though he is appointed
by him.
 The service conditions of the chief election commissioner cannot be varied to his
disadvantage after his appointment.
  Any other election commissioner or a regional commissioner cannot be removed from office
except on the recommendation of the chief election commissioner.
 Though the constitution has sought to safeguard and ensure the independence and
impartiality of the Election Commission, some flaws can be noted, ie:

 The Constitution has not prescribed the qualifications (legal, educational,

administrative or judicial) of the members of the Election Commission.
 The Constitution has not specified the term of the members of the Election
Commission.
 The Constitution has not debarred the retiring election commissioners from any
further appointment by the government.

Powers, Functions, and Responsibilities of Election Commission

Among the major Constitutional Bodies in India, Election Commission is a permanent
Constitutional Body. It was established in accordance with the Constitution on 25th January
1950.

 The Constitution has vested to this body superintendence, direction and control of the entire
process for conduct of elections.
 The Commission’s functions and powers with respect to elections to the offices of the
President, the Vice President, the state legislators and the Parliament are divided under
three headings:

 Administrative
 Advisory
 Quasi-judicial

Powers of Election Commission of India

In details, these powers of the Election Commission of India are:

 Determining the Electoral Constituencies’ territorial areas throughout the country on the
basis of the Delimitation Commission Act of Parliament.
 Preparing and periodically revising electoral rolls and registering all eligible voters.
 Notifying the schedules and dates of elections and scrutinising nomination papers.
 Granting recognition to the various political parties and allocating them election symbols.
 Acting as a court to settle disputes concerning the granting of recognition to political parties
and allocating election symbols to the parties.
 Appointing officers for inquiring into disputes concerning electoral arrangements.
 Determining the code of conduct to be followed by the political parties and candidates
during elections.
 Preparing a program for publicising the policies of all the political parties on various media
like TV and radio during elections.
 Advising the President on matters concerning the disqualification of MPs.
 Advising the Governor on matters concerning the disqualification of MLAs.
 Cancelling polls in case of booth capturing, rigging, violence and other irregularities.
  Requesting the Governor or the President for requisitioning the staff required for conducting
elections.
 Supervising the machinery of elections throughout the country for ensuring the conduct of
free and fair elections.
 Advising the President on whether elections can be held in a state that is under the
President’s rule, in order to extend the period of emergency after 1 year.
 Registering political parties and granting them the status of national or state parties
(depending on their poll performance).
The Commission is aided in its function by deputy election commissioners. The deputy ECs
are taken from the civil services and they are appointed by the Commission. They have a
fixed tenure. They are aided by the secretaries, deputy secretaries, joint secretaries and under-
secretaries posted in the commission’s secretariat.

Functions of Election Commission

1. To direct and control the entire process of conducting elections to Parliament and
Legislature of every State and to the offices of President and Vice-President of India.
2. To decide the election schedules for the conduct of periodic and timely elections, whether
general or bye-elections
3. To decide on the location of polling stations, assignment of voters to the polling stations,
location of counting centres, arrangements to be made in and around polling stations and
counting centres and all allied matters
4. To prepare electoral roll and issues Electronic Photo Identity Card (EPIC)
5. To grant recognition to political parties & allot election symbols to them along with settling
disputes related to it
6. To sets limits of campaign expenditure per candidate to all the political parties, and also
monitors the same
7. To advise in the matter of post-election disqualification of sitting members of Parliament and
State Legislatures.
8. To issue the Model Code of Conduct in the election for political parties and candidates so
that no one indulges in unfair practice or there is no arbitrary abuse of powers by those in
power.

Composition of Election Commission

Article 324 of the Constitution has made the following provisions with regard to the
composition of the election commission:

 The President appoints the Chief Election Commissioner and other election commissioners.
 When any other EC is so appointed, the CEC acts as the Election Commission’s Chairman.
 The President can also appoint regional commissioners to assist the Commission, if
necessary after consulting with the Election Commission.
 The tenure of office and the conditions of service of all the commissioners shall be
determined by the country’s President.

Importance of Election Commission for India

 The Election Commission has been successfully conducting national as well as state elections
since 1952. Now, it plays an active role to ensure the greater participation of people.
  The Commission has brought discipline among the political parties with a threat of
derecognizing if the parties failed in maintaining inner-party democracy.
 It supports the values preserved in the Constitution viz, equality, equity, impartiality,
independence; and rule of law in superintendence, direction, and control over the electoral
governance.
 ECI helps in conducting elections with the highest standard of credibility, fairness,
transparency, integrity, accountability, autonomy and professionalism.
 In the electoral process, it ensures the participation of all eligible citizens in an inclusive
voter-centric and voter-friendly environment.
 The Election Commission of India engages with political parties and all stakeholders in the
interest of the electoral process.
 It creates awareness about the electoral process and electoral governance amongst
stakeholders (political parties, voters, election functionaries, candidates and people at large)
to enhance and strengthen confidence and trust in the electoral system of this country.

Challenges faced by Election Commission

1. Increased violence and electoral malpractices under influence of money have resulted in
political criminalization, which ECI is unable to arrest.
2. Election Commission is not adequately equipped to regulate the political parties. It has no
power in enforcing inner-party democracy and regulation of party finances.
3. ECI is becoming lesser independent of the Executive which has impacted its image.
4. Allegations of EVMs malfunctioning, getting hacked and not registering votes, corrodes the
trust of the general masses in ECI.

Way Forward – ECI

 Until the controversy related to glitches in EVM settles down, the commission needs to
establish its trust amongst people by installing ( Voter Verifiable Paper Audit Trail System )
VVPATS in more and more constituencies.
 The challenge before ECI is to be vigilant and watchful against the collusion at the lower
level of civil and police bureaucracy in favour of the ruling party of the day.
 2nd ARC report recommended that collegium headed by the Prime Minister with the
Speaker of the Lok Sabha, the Leader of Opposition in the Lok Sabha, the Law Minister and
the Deputy Chairman of the Rajya Sabha as members should make recommendations for the
consideration of the President for the appointment of the Chief Election Commissioner and
the Election Commissioners.

Q.5 Draft a PIL(Public Interest Litigation) on breach of any fundamental right.

Subject :- Law and social transformation

Questions
Q-1 Law as an instrument of social change. Discuss.

1. Introduction

The term “Law’ denotes different kinds of rules and Principles. Law is an
instrument which regulates human conduct/behavior. Law means Justice,
Morality, Reason, Order, and Righteous from the view point of the society.
Law is a broader term which includes Acts, Statutes, Rules, Regulations, Orders,
Ordinances, Justice, Morality, Reason, Righteous, Rules of court, Decrees, Judgment,
Orders of courts, Injunctions, Tort, Jurisprudence, Legal theory, etc.

2. Definition of LAW

Law is an instrument which regulates human conduct/behaviour. Law means Justice,

Morality, Reason, Order, and Righteous from the view point of the society. Law
means Statutes, Acts, Rules, Regulations, Orders, and Ordinances from point of view
of legislature.

3. What is Morality

Morality refers to the social principles that define what is morally right and morally
wrong. In brief, it is the ethical code of conduct of a person. The main aspect that
defines this right or wrong quality of action under moral terms is the intention of the
person committing that particular action. Therefore, morality is concerned with both
the external acts and internal motives for that action or occurrence.

Hence, social concepts such as ethics, religious teachings, etc. directly influence in
creating morality standard in a certain community or country. Hence, it is these
social concepts that formulate morality, unlike the law that is formulated by the
state.

4. Difference between law and morality

Law is the system of rules which a particular country or community recognizes as

regulating the actions of its members and which it may enforce by the imposition of
penalties. On the other hand, morality is the set of ethical principles that define
what is morally right and morally wrong. Thus, this is the main difference between
law and morality.

Law is enforced by the ruling bodies of a country; state or a community while there
is no such a significant body to enforce moral codes. laws creates the constitution of
a country whereas there is no direct connection with the constitution in morality.
Besides, morality emerged before the ideal set of laws. Therefore, morality
influenced the emergence of laws in a community or a country. Sanctions and
punishments is also a major difference between law and morality.
 5. The relationship between law and social change

Law is the supreme authority in the hands of the states to regulate what is right and
what is wrong in society. Law is not only present to provide the society with a set of rules
according to which a society should function but also regulations which the society is
supposed to adopt in its own way in order to ensure welfare to the people living there.

Several researchers have opinionated that law is the best instrument for regulating social
change but at times it is the social change that becomes a statute itself. Social
transformation takes place due to the presence of several factors in the surrounding. These
are the demographic structure, technological upliftment, change in the ideologies of the
people in society, increase in the welfare of the people in society and so on. The forefathers
of the Constitution were clear with the fact that India after receiving independence should
not be subjected to the similar kind of humiliation in any form as it has been for several
years before 1947. The Indian Constitution can, therefore, be one of the citing examples to
showcase how law can be used to bring in social change.

Law can serve society to bring in social change in two different ways which are provided
below:

1. By providing stability in society and maintain an orderly life within the

society
2. Bring in social change by changing itself so as to adjust with the demands
and needs of the society and its people.

6. Law as an instrument for creating social change can be used in two broad ways
namely:
a. The laws bringing in a change in society
b. The society is bringing in a change in the law

When one says that laws are bringing in a change in the society he or she means
that law is making the society follow it in order to bring in a difference or a
change in the atmosphere that is already in existence.
India being a diverse nation, has different groups of people living in it and in
India, the effect of the society on the people is comparatively more than other
nations for the fact that there exists a lot of traditions, customs, and cultures in
Indian society that influence the public in a large way. Law has been a very
influential instrument for the nation to bring in social change both in the past as
well as in the present.

Untouchability :-

For example, untouchability has been a long drawn social issue. Article 17 of the
Constitution of India declares that untouchability should be prohibited.
Therefore the law in a way brought in a social change by abolishing the social
issue to a great extent. Now if anybody does practice untouchability, he or she
will be held guilty of violating the law of the land. Whereas when the society
brings in a change in the law it means that society is adjusting itself to law the
way it wants.

Sati Pratha :-

Sati was a practice that forced the wives to be burnt alive along with her dead
husband. This custom was mandatory to be followed among the Hindus. The
society brought in reforms to abolish this practice. Therefore in a way the
society brought in a change in the existing law.
Some of these major social issues that require the law to come to the ground
and be an instrument for social change have been discussed below.

Racial discrimination

Racial discrimination is one such social issue that has been haunting several
parts of the world until now. Racial discrimination involves spreading of
inequality between two groups of people on the basis of skin colour or their
ethnic origin. The Americans say that while the democrats will be of the view
that equality in terms of colour has not been achieved yet, the Republicans will
be of a view that the law has already done its job of bringing equality between
the Blacks and the Whites. Several countries have brought in anti-discrimination
Acts to drive away racial discrimination also.

The exploitation of women and children

The exploitation of women and children has been a common social issue for the
entire world. This is one such social issue which indeed follows the cyclic theory.
Women have always been subject to suppression for men taking dominance
over them. This has also initiated the rise of crimes against women compared to
that of men. The exploitation of children in terms of child labour, child abuse,
child marriage, child trafficking are common insights. There have been several
laws by which these factors have been regulated to bring in a social change and
upheld children rights so as to provide them with an environment where they
can grow to become responsible citizens of the nation.

Fundamental Rights in the Indian Constitution

Fundamental rights have indeed been a reflection of law as an instrument for

straying social change. Fundamental rights enforced right to live freely under
Article 21, right to free and compulsory education, right to equality under Article
14, right to freedom under Article 19 and several other rights that prove to be
essential to make a difference in the existing society. Right to free and
compulsory Education under Article 21A was a new addition under the right to
life in the year 2002. The society felt the need to educate its children in order to
make them more aware of the social change taking place around him or her. The
way it was carried out was by law so as to make education a compulsory
necessity for all children up to 14 years of age.

Public Interest Litigation

Public interest litigation has been one such mechanism that the Supreme Court
gifted to the citizens in order to create a divergent approach towards law on the
part of the people. Public interest litigation serves as an instrument using which
a person representing a group of people can approach the court on grounds that
they are affected by something which is necessary to be prevented to avoid
further sufferings. By offering public interest litigation to the citizens, the
Supreme Court has been able to reduce the extent of the locus standi thereby
enabling any public-spirited person to approach the court without any
hesitation. This was indeed a great social change brought by the Indian judiciary
once again proving that law can be used as an instrument to create social
change in a way as and when required by the society.

Child marriage

India being the home of various religions has seen a number of traditions and
customs that became law for several years even if the customs or the traditions
were not upright and fair. Child marriage is one such unfair customs that use to
prevail until the coming of the Child Marriage Restraint Act, 1929. This Act was
further amended in the year 2006 and came to be known as the Prohibition of
the Child Marriage Act, 2006. Child marriage is in one-way exploitation against
the girl child. In an age when children should pursue education, they are married
in order to remove responsibilities on the part of the parents and society.

Rape

More than just being a social issue, rape occurs due to the mindset of the people
in the nation. Rather than categorizing it as to who commits it and who suffers
and keeping a mainstream discussion, rape can simply be defined as sexual
exploitation of a person by another person for the satisfaction of the latter. It is
only through law can there be a change in the mentality of individuals in the
society so as to stop committing such a heinous offence.

Section 377
 Supreme Court in the landmark judgment of Navtej Singh Johar v. Union of India
decriminalised all kinds of consensual sex among adults which were inclusive of
homosexual sex also. This decision by the apex court brought in a revolutionary
change in the Indian society, traditions and beliefs. It was a welcoming judgment
for the majority of the people especially the queer community. The Supreme
Court in a way established Article 21 once again placing that every individual has
a right to life and personal liberty which should not be curbed due to societal
norms.

Bonded labourer and slavery

An Act to provide for the abolition of bonded labour system with a view to
preventing the economic and physical exploitation of the weaker sections of the
people and for matters connected therewith or incidental thereto.

Widow remarriage

Pandit Ishwar Chandra Vidyasagar (1820-91), the principal of Calcutta’s Sanskrit

College, was largely responsible for this law to be included in the constitution. He
pushed tirelessly to establish a widow remarriage culture in the nation.

Even though the widow was a minor and the marriage had not been consummated,
remarriage was not allowed. In certain regions of India, widows are expected to live
and stay unmarried till they die. They were not permitted to live like ordinary
people. They need to follow the norms dictated in the ancient times.

Right to information

The Right to Information Act 2005 is hailed as a revolution in India's evolution as a

democracy. It empowers the ordinary citizen who has hither-to been armed with
only his vote, with the tools of information that propel government decisions. Effect
of RTI Act on Indian society has been tremendous. Even US President Barak Obama
on his maiden visit to India has remarked “Your landmark Right to Information Act is
empowering citizens with the ability to get the services to which they're entitled and
to hold officials accountable.

Q-2 Define Protective discrimination. Explain in detail the necessity of protective discrimination.

“Protective Discrimination”

Our society has always been full of inequalities. It was a caste ridden, stratified hierarchical society,
and a particular segment of the society had been denied the bare human rights. Their education,
wages, living conditions, social status was dictated by the whims of upper strata of society, reducing
them to destitution. The economic backwardness brought social awkwardness which consequently
made them downtrodden and thus depriving them even of the dignity of life. In a society
compartmentalised on caste basis, upper castes controlled the levers of power enabling them to run
their whips, prejudicial to the interests of lower segments of the society. Lower castes had to serve
the upper castes without having any say and grievance redressal mechanism. This inhumane and
barbaric condition perpetuated for centuries, till "we the people" realised the malady impelling the
framers of our constitution to think.

Any democratic society faces the challenge of harmonising two essentially contradictory political
concepts--one, equality before the law irrespective of religion, caste, creed, race, and gender, and
the other, social justice at the cost of the same commitment for equality before the law. Even a
developed democracy like the United States is no exception to the rule and has taken recourse to
affirmative action to ensure justice for the less privileged sections of the society at the cost of
individual merit and equality of all citizens before the law. In India large numbers of people have
experienced social discrimination through centuries on account of its peculiar institution called the
caste system, efforts have been made to provide redress for these under-privileged sections,
through the policy of reservations or quotas for them in jobs, seats in educational institutions and
legislatures, and in governmental aid, loans and other developmental assistance.

In all, four under-privileged categories have either received benefits under the scheme or have been
seeking such benefits, namely the Scheduled Castes (SCs) and the Scheduled Tribes (STs), the Other
Backward Classes (OBCs), the religious minorities or sections thereof, and lately, the women. This
project discusses these categories from a political perspective. Its scope however, is limited to
assessing the schemes both under operation as well as under consideration, only at the national
level. The experiences of different states have been referred to only occasionally to provide an
example or to make a particular point.

HISTORICAL BACKGROUND OF PROTECTIVE DISCRIMINATION

India has had a long past of oppression and suppression. Certain communities have always

been discriminated against, whether it be in the puranic times, the era of monarchy or British

rule. These communities were exploited for long and their sufferings have been silenced by the

influential non-discriminated people of the society. They were so underprivileged that they lost

all financial authority and were forced to live a life of poverty for generations after

generations. The makers of the Indian Constitution dreamt of a society where everyone is

treated as equal and no one is exploited based on their colour, caste, sex or race. The makers

of the Constitution applied their judicial mind for an affirmative action that would potentially

accomplish the desired object. It was the idea of protective discrimination that added a new

dimension to a great socio-economic man oeuvre.

Protective discrimination has been adopted as a tool for granting special privileges to the
downtrodden and the underprivileged sections of society. These are the affirmative action programs,
and also known as positive discrimination. The term “protective discrimination” implies that a
certain right or privilege is provided to those who have been oppressed and discriminated against
for ages. Discrimination against discrimination is based on the widely known quote “iron cuts iron”.
There’s no ambiguity as history conveys that one type of discrimination is curative and protective in
nature whereas the other type is negative and destructive. The society’s most susceptible section
includes-

 Scheduled Caste
 Scheduled Tribe
 Women
 Children
 Old age people
 Transgender

Necessity of Protective Discrimination:-

 Bring equality
The idea of equality and inequality, the theory that no two people can be equal and
thenotion that equality of opportunity could combat the drawbacks which many faced due
to theirsocial position have occupied the minds of eminent philosophers such as Locke,
Rousseau,Huxley and many others. There was nothing ambiguous about the arbitrarily
hierarchical andsocially and economically exploitative caste system that had guided India
since before theIndependence. For, centuries, they had been victims of humiliation and
oppression and at thedawn of independence, the framing fathers had taken the plight to
ensure then with justice- socialeconomic and political, as set forth in the Preamble of the
Constitution of India and thus insertedan extraordinary phase for the upliftment of the
masses of humanity from the morass ofsubhuman social existence, abject poverty and
economic exploitation too.

 Support the backward class

The concept of “Protectivediscrimination” for so called backward

classes of people in India has assumed a newdimension because of the massive socio-economic
changes after Independence andresultant change in the perception regarding

‘Equality’. Soon after independence, the

social problem of caste inequality came tothe fore though there are many kinds ofinequalities in our
country, the mainemphasis is on caste because of the potential

of ‘caste’ in the battle for ballots. Caste is

considered peculiar and intrinsic to theIndian society but escapes strict definition,owing to its
complexity. Yet it is used in somany contexts with this lack of precision. Itis a term widely used to
describe thehereditary, endogamous social classes andsub classes of traditional Hindu society.

For historical reasons certain classesof Indian citizens were known to besuffering from various socio-
economicdisabilities and as such they could noteffectively enjoy either equality of status orof
opportunity. Hence, it was thought prudent that for such period as they take forcatching up the
mainstream of our society,the Constitution itself should provide forspecial treatment to them for
certain purposes. To offset the accumulatedoppression of centuries of deprivation,special
Constitutional measures wereenacted for Scheduled Castes and ScheduledTribes and Other
Backward Classes who hadtraditionally been the victims of socio-economic oppression.

 Protective discrimination and women

Both men and women are important components of the society and

their mutual understanding and cooperation contribute equally to guide the

activities of the world. But it is the most unfortunate that women have

suffered inferior position to men in almost all societies of world. The status

of women in the family and society at large was no better than those of

slaves and has been treated like ordinary chattels-incapable of enjoying any

rights as human beings. They were condemned to perpetual subjugation to

their fathers, husbands and guardians. Under the old Christian law, the

woman was not even considered a ‘person’. Thus, she had no right of a

human being such as she could not join a college, she could not be enrolled

as a medical practitioner or a lawyer for the same reason. Until the

eighteenth century, she did not have any right to vote in the Christian

countries. It means in the ancient law of the Christian countries, women

laboured under various disabilities and also their participation in civil life, in

the work force, in the industries, in the education and administration was

minimal. The movement is generally said to have begun in the 18th century

as people increasingly came to believe that women were treated unfairly

under the law.

The major factors responsible for the protective discrimination for women are as mentioned below:-

 Less education opportunities

  Less Political Participation of Women
 Under-representation of Women in Employment

Beginnings of discrimination in India - the Caste System

There are many other countries and nations that are characterised by inequalities including social
inequalities but in India these inequalities are highly structured in the form of caste. Caste has
existed in India for such a long time and has undergone considerable change but it still involves
millions of people. The continuation of superiority and inferiority by reason of ones skin colour,
religion and economic and social status is a world-wide phenomenon. The caste system was not the
creation of a single person like the raja (king). To a certain extent it developed out of a system of
social practice that became a norm or way of life over several thousands of years.

The issue of caste is a very complex and complicated one. Caste is perceived as "an exclusively Indian
phenomenon which is not paralleled by any other institution elsewhere in its complexity,
elaboration and inflexibility".7 Kroeber describes the caste system as a "system of social
stratification, examples of ranked aggregates of people, that are usually rigid, birth-ascribed, and
permits no individual mobility".8 In the caste system everyone is classified. The castes, like the
system of apartheid and racial discrimination, teach us a fundamental social principle; hierarchy.9
This classificatory system assumes that certain traits, qualities, functions, characteristics or powers
are inherent in and definitive of each of the varnas. This system of caste is enormously complicated
and not easily understood. The following paragraph attempts to simplify the issue of caste so as to
give the reader an understanding of how the system works.

It is because of this hierarchal construction, with its rising order of opportunities and its sliding order
of disabilities, which has been in operation for about 3000 years, that there was and continues to be
an overwhelming majority in the nation that are socially, economically, educationally, and politically
backward. These victims of entrenched backwardness comprise the present Scheduled Castes (SCs),
Scheduled Tribes (STs) and Other Backward Classes (OBCs). These classes are generically called the
"backward classes", but each class's nature and magnitude of backwardness are not the same.

Case Laws :-

In Mohan Kumar Singhania v. Union of India (1991), the Supreme Court explained that Article 16(4)
is an enabling article that gives the state freedom to make any provision or reservation for any
backward class of citizens that is not adequately represented in the state’s service. The state
government takes the total population of the backward class and their representation in state
services, does the appropriate calculations, and then makes the reservation and provides the
percentage of reservation for the posts, which must be carefully adhered to.
In Triloki Nath v. J & K State (II) Shah (1973), the bench stated that ‘a test primarily based on caste,
community, race, religion, sex, descent, place of birth, or residency cannot be used to determine
whether a section represents a class for the purposes of Article 16 (4) since it would directly violate
the Constitution.’

Q-3 Explain in detail the freedom of religion and non-discrimination on the basis of religion.

Introduction:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or in community with others and in public or
private, to manifest his religion or belief, in worship, teaching practice and observance.

It is evident from the past that Indians have been sensitive regarding their religious beliefs and
customs. Whenever a foreign ruler tried to interfere with the people’s customs or religious practices,
they became disgruntled and revolted. Even the immediate cause behind the Revolt of 1857 (the
First War of Independence) was that Mangal Pandey was forced to act against his religious beliefs.
He was forced to pull off the cartridge of the gun from his mouth which was believed to be greased
with a mixture of cow and pig lard. In Hinduism, cows are worshipped like ‘mother’ whereas
Muslims believe pigs are impure, they not only avoid to pronounce pig but also consider it as a sin to
think about pig. When Britishers disrespected their faith, it became a serious cause of revolt and led
people to revolt against the British Raj.

Indians are still the same when it comes to their faith and religion. Their religious sentiments are one
of the most important concerns in their life. Even now if anyone messes up with their religion and
culture, they consider it as their duty to protect their religion and get the accused punished for it.
But it is not necessary that every act against someone’s faith and belief is wrong in the eyes of law.
There may be instances where people’s religious sentiments are hurt without any legal wrong.
Therefore, giving freedom of religion not only becomes necessary for securing the religious rights of
people but also to define the scope of what could be considered as a legal wrong against religion.

What is Secularism?

In Ahmedabad St. Xavier’s College v. State of Gujarat, the Supreme Court held that Secularism
neither means anti-god nor pro-god. It just ensures that no one is differentiated on the basis of
religion eliminating the concept of God in matters of the state.

While dealing with the concept of ‘secularism’ in detail, the Supreme Court in S.R Bommai v.
Union of India explained that under the Constitution, secularism does not mean an atheist society
but a heterogeneous society providing equal status to all religions without favoring or
discriminating against any one.

Paresh Raval’s dialogue from Oh My God movie, “Mai sab dharmon ka aadar karta hoon aur kisi
bhi dharam mein maanta nahin” which means that “I respect all religions and I don’t believe in
any religion”. It defines the difference in approach of India and US towards the religion. The first
part of the dialogue depicts the position of India where the principle of “Sarva Dharma Sambhava”
which means “equal respect for all religions” whereas the second part of the dialogue represents
the US ideology which has drawn a line between religion and state.

Constitutional framework of Freedom of Religion

As stated earlier, if God is the question and religion is attempting to answer it, then this answer
has to be conveyed to everyone who may be seeking answer to that question. The Indian
Constitution, therefore, provides mechanism to discover and spread one's beliefs. Indian
Constitution believes that every citizen in India has a basic level of conscience and allows him to
discover the full potential of this conscience and establish his relationship with God or his divine
and therefore guarantees certain fundamental rights with certain restrictions, these freedoms are
covered under Article 25, 26, 27, 28.15

Article 25(1) gives the people the freedom to practice, profess and propagate one's religion subject
to public order, morality and health and other provisions of the Part and 25(2) (a) empowers the
State to regulate or restrict those activities of any religious practice which are economic, political,
financial in nature or any other activity which is secular and 25(2) (b) allows for the formulation of
social welfare and reform and opening up of religious places of public type for all sections of
Hindus.16

Article 26 states that every religious denomination or sect shall be granted the right to establish and
maintain institutions for religious and charitable purposes, to manage its own affairs in matters of
religion, to own and acquire property both movable and immovable and in accordance with law
manage its property subject to public order morality and health

Article 27 provides for non-payment of taxes, the proceeds of which shall be specifically used for
promotion or maintenance of any religion or religious denomination.37

This article highlights the secular foundation of the Constitution, it would be improper to spend
public funds for the furtherance and promotion of beliefs of a particular religion.38 But there is a
distinction between taxes and fees, a tax collected is spent by the State for the general
administration and there is no special service extended to the payer, it is not the case with fees, fees
are imposed for any special service done in return of the payment and so, there is an element of
quid pro quo, which is absent in taxes.39 For fees to differ from taxes "there must be co-relation
between the levy imposed and the expenses incurred by the State for the purpose of rendering such
services", the collections of the fees have to be kept separate and not to be mixed with the general
revenue.40

Article 28(1) denotes that those educational institutions which are wholly run out of State funds
cannot distribute any religious instruction41, but educational institutions which are established
under any endowment or trust and is just administered by the State and require religious
instructions to be imparted can do so42, 28 (3) states that in educational institutions recognised or
receiving funds from the State, no person is required to take part in any religious instructions in such
institutions or is required to attend any worship in the institution or any premises attached to it
unless he voluntarily chooses to so or in case of a minor, consent of the guardian is available.

Religious freedom and non-discrimination

Indians generally see high levels of religious freedom in their country. Overwhelming majorities of
people in each major religious group, as well as in the overall public, say they are “very free” to
practice their religion. Smaller shares, though still majorities within each religious community, say
people of other religions also are very free to practice their religion. Relatively few Indians –
including members of religious minority communities – perceive religious discrimination as
widespread.

Indians also widely consider communal violence to be an issue of national concern (along with other
problems, such as unemployment and corruption). Most people across different religious
backgrounds, education levels and age groups say communal violence is a very big problem in India.

The partition of the Indian subcontinent in 1947 remains a subject of disagreement. Overall, the
survey finds mixed views on whether the establishment of Hindu-majority India and Muslim-majority
Pakistan alleviated communal tensions or stoked them. On balance, Muslims tend to see Partition as
a “bad thing” for Hindu-Muslim relations, while Hindus lean slightly toward viewing it as a “good
thing.”

Most people in India do not see a lot of religious discrimination against any of the country’s six major
religious groups. In general, Hindus, Muslims and Christians are slightly more likely to say there is a
lot of discrimination against their own religious community than to say there is a lot of
discrimination against people of other faiths. Still, no more than about one-quarter of the followers
of any of the country’s major faiths say they face widespread discrimination.

Generally, Indians’ opinions about religious discrimination do not vary substantially by gender, age
or educational background. For example, among college graduates, 19% say there is a lot of
discrimination against Hindus, compared with 21% among adults with less education.

Within religious groups as well, people of different ages, as well as both men and women, tend to
have similar opinions on religious discrimination.

Case Laws

M. Ismail Faruqui v. Union of India

The apex court held that the mosque is not an essential practice of Islam and
a Muslim can offer namaz (prayer) anywhere even in the open.

 Ramji Lal Modi v. State of UP

Petitioner challenged the validity of Section 295 of IPC which penalized the
act or attempt of insult of a religion or religious beliefs of a class of citizens.
The Court held that Section 295 is consistent with Article 25 and held it to be
constitutional.
 Raja Birakishore v. State of Orissa
The validity of the Jagannath Temple Act, 1954 was challenged as it enacted
provisions to manage the affairs of Puri temple on the grounds that it is
being violative of Article 26. The court held that the Act only regulated the
secular aspect of seva puja, therefore, it is not being violative of Article 26.

Q- 4 Explain in detail the Prison reforms in India.

INTRODUCTION

In the words of Nelson Mandela, “a nation should not be judged by how it treats its highest citizens
but its lowest ones.” Mahatma Gandhi also quoted for the Prison reforms as – Crime is the outcome
of a diseased mind and jail must have an environment of hospital for treatment and care. Punishing
the offenders is the primary function of all civil societies. Prisons are known to have existed
throughout the history. Prison is known by different names in different countries like correctional
facilities, detention centres, jails, remand centres, etc. Prisonization personifies a system of
punishment and a some sort of institutional place for convicts and undertrials during the period of
trial. There is no society without crime and criminals, that’s why prison is indispensable for every
country. The objective of punishment can be achieved by imprisonment. Prisons are not normal
places. The prisoners are deprived of freedom and personal contacts with family and friends and the
real purpose of sending criminals to prison is to transform them into honest and law abiding citizens
but in actual practice, the prison authorities try to bring out reformation of inmates by use of force
and compulsive methods. In India, prison reforms did not emerge out of the social movement but
were necessarily an outcome of the worst conditions of treatment faced by the political sufferers in
prisons during the period of their imprisonment.

CLASSIFICATION OF PRISONERS

Prisoners can be categorized in three manners as under :-

3.1 Pre trial prisoners

Pre trial prisoners are the accused, detained who are under the custody of the state for the purpose
of interrogation and investigation based on FIR or evidences found during the investigation. They are
in the custody of state for very limited period.

3.2 Under Trial Prisoners

Under trial prisoners are the prisoners who are in the Judicial custody i.e jail awaiting the trial in
their case. Their charge-sheet may or may not have been prepared by the police authority or
judiciary.

3.3 Convicted Prisoners

Convicted prisoners are the prisoners who are found to be guilty of some particular offence which is
committed by him after due process of law. They are punished by the competent court as a penal
action to be kept in prison.
Prison Reforms – prior independence

The modern prison system in India was originated by TB Macaulay in 1835. A committee namely
Prison Discipline committee 1836 was appointed which submitted its report on 1838. This committee
recommended increased rigorousness of treatment while rejecting all humanitarian needs and
reforms for the prisoners. After the recommendation of Macaulay committee between 1836-1838,
Central Prisons were constructed from 1846. The contemporary prison administration in India is thus
a legacy of British rule. In 1864, the 2nd commission of inquiry into jail management and discipline
made similar recommendations as the 1836 committee but in addition this commission made
suggestions regarding accommodation for prisoners, improvement in diet and medical care. The
Indian Jail Reforms committee 1919-20 was appointed to suggest measures for Prison Reforms,
which was headed by Sir Alexender Cardio. As a measure of prison reform, the jail committee further
recommended that the maximum intake capacity of each jail should be fixed, depending its shape
and size. A Jail Reform committee, 1946 was constituted in the year 1946 for the formation of the
jails. This committee gave the suggestions as the child offenders should be treated differently,
modern jails should be constructed and the classification of offenders should be women offenders,
habitual offenders, handicapped offenders.

Prison reforms – After independence

After independence of India, the work on the reformation of jails speeded up. So in 1956 the
punishment of transportation was substituted by the imprisonment for life. In 1949 Pakawasha
committee gave the permission to take work from the prisoners in making the roads and for that
wages shall be paid. After that there was a recommendation on prison reforms in 1951 by Dr. W.C.
Reckless (Technical Expert). Later on the committee was appointed to prepare an All India Jail
Manual in 1957 on the basis of suggestions made by Dr. W.C. Reckless. The Govt. of India appointed
the All India Jail Manual Committee in 1857 to prepare a model prison manual.

The All India Committee on Jail Reforms 1980 -83 was constituted by the government of India under
the chairmanship of Justice Anand Narain Mulla. The basic objective of the committee was to review
the laws, rules and regulations. In the year 1986, A Juvenile Justice Act was enacted and observation
homes, special homes and juvenile homes were constituted where the neglected children and
juvenile delinquent can be admitted and the juvenile delinquent cannot be kept within the prison. In
1987, the Government of India appointed the Justice Krishna Iyer Committee to undertake a study
on the situation of women prisoners in India.

Techniques of Prison Reforms

The desired goal of reformation or rehabilitation of criminals is achieved through various tools and
techniques in the institution of jail. Some such tools and techniques of prison reforms are as follows :

4.4.1 Probation
Probation is a period of time during which a person who has committed a
crime has to obey the law and be supervised by a probation officer, rather
than being sent to prison. 
4.4.2 Parole
 Parole is the release from a penal reformative institution of a criminal who remains
under the control of correctional authorities in an attempt to find out whether he is fit
to live in the free society without supervision.

4.4.3. Furlough

The object behind this tool is merely to enable him to retain family and social ties and avoid
negative effects of a continuous prison life. The period of furlough is treated as remission of
sentence.

4.4.3 Pardon
The term pardon as an act of mercy by which the prisoner is absolved from the penalty
which was imposed on him, the grant of pardon may be absolute or conditional.

Open Prisons

Open prisons also named as open air camps, open jails. They provide work to the
inmates in forests, agricultural farms and construction sites instead of allowing them to
be idle inside the prison cells.
4.4.4 Self governance by inmates
Under the system of self government in prisons the inmates elect some of their fellow
prisoners as their representatives and the entire prison management is run by that
elected body of prisoners, who exercise complete or at least partial control over mess
and are expected to take care of the interests and welfare of their fellow prisoners.

4.4.5 Work Release

In this method, the prisoner is allowed to work for pay in the society for part time basis.
This gives him an opportunity to mix up with the society in a normal manner without any
limitations.

Vipassana

Vipassana is a straightforward way to achieve peace of mind and to live a happy useful
life. It was with this purpose of dealing with the emotional and psychological problems
of prison inmates, it became an integral part of the prison which helped in building
community as well as developing their personality in a positive manner.

4.4.6 Mulaqat System

The system of Mulaqat i.e family meetings of prisoners in jail needs to be taken seriously
as it is an extremely effective but unexploited tool of reformation although the prisoners
are allowed to meet their near relatives

Celebration of festivals and other ceremonies

 It is opined by the reformers that the system of limiting the scope of festivals and other
ceremonial occasions merely to delicious dishes for prisoners needed to be changed by
bringing in celebrations through rejoicings and other meaningful programmes so that
the prisoners could at least momentarily forget that they are leading a fettered life.

4.5.3. Communication by post or mail

The existing rules relating to the restrictions and scrutiny of postal mail of inmates
should be liberalized. This shall infuse trust and confidence among inmates for the
prison officials, most of the times the only excuse presented by the prison authorities in
support of such restrictions is that the same is done in the interest of security of the
prison.
4.4.7 Education and skill training
The continuing education of prisoners is yet another tool that keeps them occupied and
also would help their rehabilitation after release from jail. It is strongly believed that the
practice of yoga and meditation can enable the prisoners to control their mind and also
bends the negative temperament to positive one. This approach to prison reforms will
surely bring about a positive change in the attitude of prisoners and help in their
rehabilitation.

Case Law

The Supreme Court, in its landmark decision in Ramamurthy v. State of Karnataka (1997) 2 SCC 642
This case identified nine major problems which needed immediate attention for implementing
prison reforms.

A ) Overcrowding B ) Delay in trial C ) Torture and ill treatment D ) Neglect of health and hygiene E )
Insufficient food and inadequate clothing F ) Deficiency in communication G ) Management of open
prisons

D. K. Basu v. State of West Bengal 50 AIR 1997 SC 610 It was held that, the information of arrest is
required to be given to the friend or relative of accused immediately, while he is arrested. The
purpose is very clear that, by this communication the relative or friends of accused can start the
efforts to know the facts of accused, to obtain the legal advice and take the defense against an
application for remand and do the necessary preparation for bail.

5.3 Rudal Shah v. State of Bihar 1983 AIR 1086 It was held that, if the trial against a prisoner
concludes into acquittal the prisoner is entitled as a matter of right to be released forthwith. After an
order of acquittal, he cannot be detained behind the prison walls.

Q-5 Explain the jurisprudence of Sarvodaya--- Gandhiji, Vinoba Bhave; Jayaprakash Narayan---
Surrender of dacoits in detail.
The jurisprudence of
Sarvodaya.
Sarvodaya aims to establish
a new social order on the
basis of truth, love and
non-violence. It is highly
critical of the state and its
government, because
both are based on force
and coercion. Human
society must be free
from
coercive institutions. As
such, Sarvodaya aims
towards the creation of a
social
order free from every
form of authority. Its
ultimate aim is to
establish a
Stateless society where
“the ruler and the ruled
will be merged in the
individual”. The main
features of Sarvodaya
social order, as expounded
by
Vinoba Bhave, are as under:
i. No power should be
dominant in society; there
should only be a
discipline of good thought;
ii. All faculties of the
individual to be dedicated
to society which must
provide the individual with
growth and development;
and
iii. The moral, social and
economic values of all the
callings performed
honestly should be the
same.Sarvodaya aims towards
the welfare and rise of all
individuals. Man will be the
center of such a society, but self-
interest will not be the basis of
social organization. In an ideal
social order no one should be
downtrodden. An ideal social
order is one where “love is to
reign and cooperation to prevail”.
It is that order where ‘there
will be freedom for all and utmost
equality; there will be no class
and castes; no exploitation
nor injustice; and equal
opportunity for each for fullest
development shall prevail’.
The jurisprudence of
Sarvodaya.
Sarvodaya aims to establish
a new social order on the
basis of truth, love and
non-violence. It is highly
critical of the state and its
government, because
both are based on force
and coercion. Human
society must be free
from
coercive institutions. As
such, Sarvodaya aims
towards the creation of a
social
order free from every
form of authority. Its
ultimate aim is to
establish a
Stateless society where
“the ruler and the ruled
will be merged in the
individual”. The main
features of Sarvodaya
social order, as expounded
by
Vinoba Bhave, are as under:
i. No power should be
dominant in society; there
should only be a
discipline of good thought;
ii. All faculties of the
individual to be dedicated
to society which must
provide the individual with
growth and development;
and
iii. The moral, social and
economic values of all the
callings performed
honestly should be the
same.Sarvodaya aims towards
the welfare and rise of all
individuals. Man will be the
center of such a society, but self-
interest will not be the basis of
social organization. In an ideal
social order no one should be
downtrodden. An ideal social
order is one where “love is to
reign and cooperation to prevail”.
It is that order where ‘there
will be freedom for all and utmost
equality; there will be no class
and castes; no exploitation
nor injustice; and equal
opportunity for each for fullest
development shall prevail’.
The jurisprudence of Sarvodaya.

Sarvodaya aims to establish a new social order on the basis of truth, love andnon-violence. It is
highly critical of the state and its government, becauseboth are based on force and
coercion. Human society must be free fromcoercive institutions. As such, Sarvodaya aims
towards the creation of a socialorder free from every form of authority. Its ultimate aim is to
establish aStateless society where “the ruler and the ruled will be merged in
theindividual”. The main features of Sarvodaya social order, as expounded byVinoba Bhave, are
as under:

i. No power should be dominant in society; there should only be a discipline of good thought;

ii. All faculties of the individual to be dedicated to society which must provide the individual
with growth and development; and

iii. The moral, social and economic values of all the callings performedhonestly should be
the same.Sarvodaya aims towards the welfare and rise of allindividuals. Man will be the
center of such a society, but self-interest will not be the basis ofsocial organization. In an ideal social
order no one should be downtrodden. An ideal socialorder is one where “love is to reign and
cooperation to prevail”. It is that order where ‘therewill be freedom for all and utmost equality;
there will be no class and castes; no exploitationnor injustice; and equal opportunity for each for
fullest development shall prevail’.

Mahatma Gandhi’s
concept of Sarvodaya:
Gandhism and Sarvodaya
are inter-related to each
other, the former is the
Mahatma Gandhi’s concept of Sarvodaya:

Gandhism and Sarvodaya are inter-related to each other, the former is the essence of the latter.
Gandhism is associated with the teachings and writings ofMahatma Gandhi. Gandhi’s mission in life
was to regenerate faith and trust inmankind, to reinstate the freedom of man, and to renovate the
dignity of humanbeings. Gandhian way of life is closely related to the doctrine of Sarvodaya.Gandhi
visualizes an integral development in society which is realised throughSarvodaya. Sarvodaya is the
name Gandhi gave to his mission embarrassingbetterment of humankind. Sarvodaya builds a new
society on the foundations ofmoral values. The society so established shall head towards integral
welfare ofall human beings.After the Independence of India, Gandhi’s devoted disciple Acharya
VinobaBhave established a Sarvodaya Society. Later on, Jaya Prakash Narayan joinedthe Sarvodaya
movement. The Sarvodaya movement aims to reconstruct socialand political order on the ideals and
teachings of Mahatma Gandhi. It a means togive the Gandhian way of life a realistic profile.

Vinoba Bhave the exponent of Sarvodaya movement

To continue the ideology and mission of Gandhi, ‘Sarvodaya Plan’ wasdrafted in 1950.
Which intended to achieve a non-violent, non-exploitative,cooperating society with equal
opportunity for all without distinction basedon caste or class. It set forth the policy of “tiller to
be the owner of land”,redistribution of excessive land, and formation of cooperative farms
byaccumulating uneconomic holdings. It contemplated protection of minimumwages and
formation of multipurpose village cooperatives. It divided industriesinto centralised and
decentralised ones. The former was to be owned byautonomous corporations or
cooperatives with workers’ participation inmanagement and the latter by individuals or
corporations. Banking andinsurance ought to organise mass saving and control of investment. 50
per centof the public revenue might be spent by the village Panchayat.

Vinobaji’s Bhoodan and Gramdan movements are to be understood as specificschemes of

Sarvodaya movement. Bhoodan, according to him, was not charity,but a realisation of right, a
method of equitable distribution and anintroduction of new values to the society. Eminent
Gandhian puts it as; it was anexperiment in non-violent economic revolution, a trusteeship theory
put intoaction. And in words of Vinoba, “through the medium of land
donationcampaign, thoughts of the religion of humanity are taking roots in the country.”

Donation had the dimension of equal division and distribution and attitude ofnon-accumulation. He
said, “Distribution of land is not our ultimate goal, butmeans to the goal. The goal is social
revolution. The government is a servant.The people are themasters. I am trying to convince the
masters. If they are convinced, they will gettheir servants do the needful..” for him the government
was a bucket and peoplewere the well. If there would be water in the well, then only then
could thebucket be filled.

Acharya Vinoba well known as the Walking Saint of India, conducted series ofpilgrimages convincing
the landowners with cultural reasons to donate one sixthof their land to the landless. Jayaprakash
Narayan in his book Total Revolution(Vol.-II) notes that, in Telangana area, where
communists claimed to havedistributed 30,000 acres of land after two and a half years’ of
violence resultingin 3000 murders and destruction of huge public property, Vinoba
Bhaveactivated Bhoodan movement and could collect 1.5 million acres of land. In U.P.he collected
five Iakh acres. Bhoodan movement made moral appeal to thelanded class to donate land, and
provoked the landless not to cooperate withthose landlords who did not donate. According to one
source, donation of landunder bhoodan was 3.46 million acres up to 1954, which made a slow
progressreaching 4.26 million acres in 1967. The land distributed was 1.19 million acresbecause of
unfitness of 44 per cent of land for cultivation and withdrawals bydonors. The bhoodan figure in
states ranged between 21 lakh acres in Bihar and211 acres in Jammu and Kashmir. The contribution
of Bihar, M.P., U.P., andRajasthan aggregated to 85 per cent of donated land.
Jayaprakash Narayan and Sarvodaya.

His view was that protection to landless laborers; better wagestructure as well as their
social participation -which must be meaningful-was preconditions to development. He conceived
total revolution to leadinglight for eradication of caste system. Buy which he dreamt to
bringdynamism and mobility in social structure; this was the process which thesocial reformers
advocated from days immemorial. Removing the persistent impediment in the form of ‘caste
system’ could bring Cultural Revolution inrural society as India lived in villages.To ensure direct
and effective participation of people a uniquedemand for restoration of Indian polity was
naturally. According to him, theModem Western democracy was based on a ‘negation of the
social natureof man and the true nature of human society’. This democracy conceives ofsociety as
a non-living ‘accumulation’ of separate individuals. Thedifferences of religion, caste,
community, language, culture have aggravatedIndians to ambush on each other with all kinds of
violence. Disunity ofpeople had weaked the polity in the past, and could hardly be
continued.Therefore Jayaprakash Narayan preached for elementary humanity fordeveloping
India as a decent community.

Jayaprakash Narayan
and surrender of
dacoits:
In his view for the problems
that involve ‘human beings’,
entirely
legalistic or coercive
solutions are not proper. His
solution to the nuisance of
Chambal dacoity consisted
in human treatment of
them to convert them
into good citizens.
Jayprakash Narayan was a
great organizer and
motivator.
He has previously
organised Jana Sangharsha
Samiti and Chhatra
Sangharsha Samiti at
Gujarat and Bihar in pre-
emergency days to combat
corruption, lawlessness
and oppression of the
poor, he demonstrated
the
potentiality of people’s
control over government.
Also, regarding
implementation of agrarian
laws and struggles against
benami transactions
and other devious
methods of land
grabbing, he constituted
struggle
committees in each
panchayat in order to
unearth facts and
remedy’the
grievances. His approach
was central to his ‘people
oriented strategy
Jayaprakash Narayan and surrender of dacoits:

In his view for the problems that involve ‘human beings’, entirelylegalistic or coercive solutions are
not proper. His solution to the nuisance ofChambal dacoity consisted in human treatment of
them to convert theminto good citizens. Jayprakash Narayan was a great organizer and
motivator.He has previously organised Jana Sangharsha Samiti and ChhatraSangharsha Samiti
at Gujarat and Bihar in pre-emergency days to combatcorruption, lawlessness and oppression of
the poor, he demonstrated thepotentiality of people’s control over government. Also,
regardingimplementation of agrarian laws and struggles against benami transactionsand other
devious methods of land grabbing, he constituted strugglecommittees in each panchayat
in order to unearth facts and remedy’thegrievances. His approach was central to his ‘people
oriented strategy