spe LAWXPERTSMV INTER-RELATION BETWEEN FUNDAMENTAL RIGHTS, DIRECTIVE PRINCIPLES OF STATE POLICY AND FUNDAMENTAL DUTIES INTER-RELATION BETWEEN FUNDAMENTAL RIGHTS, DIRECTIVE PRINCIPLES OF STATE POLICY AND FUNDAMENTAL DUTIES1:40 PM "the state is constitutionally bound to provide such aid not only at the stage of trial but also when they are first produced before the magistrate or remanded from time to time and that such a right cannot be denied on the ground of financial constraints or administrative inability or that the accused did not ask for it. Magistrates and Sessions Judges must inform the accused of such rights" #3- Doing Complete Justice! M.H. Hoskot v. State of Maharashtra: If a prisoner sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of appeal inclusive of special leave to appeal (to the Supreme Court) for want of legal assistance, there is implicit in the Court under Article 142 read with Articles 21 and 39-A of the Constitution, power to assign counsel for such imprisoned individual ‘for doing complete justice’. #4 - State of Haryana v. Darshana Devi : the poor shall not be priced out of the justice market by insistence on court-fee and refusal to apply the exemptive provisions of order XXxXIll, CPC. @275 Slo Do1:40 PM BRUSH UP WITH IMPORTANT CASE LAWS: #1 - Hussainara Khatoon v. State of Bihar : "Article 39-A Emphasized that free legal service was an inalienable element of reasonable, fair and just’ procedure and that the right to free legal services was implicit in the guarantee of Article 21" #2 - Khatri v. State of Bihar : "the state is constitutionally bound to provide such aid not only at the stage of trial but also when they are first produced before the magistrate or remanded from time to time and that such a right cannot be denied on the ground of financial constraints or administrative inability or that the accused did not ask for it. Magistrates and Sessions Judges must inform the accused of such rights" #3- Doing Complete Justice! M.H. Hoskot v. State of Maharashtra: If a prisoner sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of appeal inclusive of special leave to appeal (to the Supreme Court) for want of legal assistance, there is implicit in the Court under Article 142 read with Articles 21 and 39-A of the Constitution, ee ee1:40 PM CODES : * CrPC : Sec.304 = to provide legal assistance to a person charged with offence triable before the Court of Session- if not represented by a pleader + no sufficient means to do so. « CPC: Order 33 = indigent and dependent person --- shall not be liable to pay court fee and in case he is not represented by a pleader, the Court may, if the circumstances of the case so requires, assign a pleader to him. STATUTORY LAW :The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to monitor and evaluate implementation of legal aid programmes. BRUSH UP WITH IMPORTANT CASE LAWS: #1 - Hussainara Khatoon v. State of Bihar : "Article 39-A Emphasized that free legal service was an inalienable element of reasonable, fair and just‘ procedure and that the right to free legal services was implicit in the guarantee of Article 21" #2 - Khatri v. State of Bihar :1:40 PM CONSTITUTION OF INDIA : PREAMBLE- ART 14-21-22-39-39(A) * The preamble of the Constitution secures to its citizen, social, economic and political justice. « ART.14 : equal justice is meaningless if the poor or illiterate or weak persons cannot enforce their rights coz of their poverty or illiteracy or weakness. ARTS. 14 and 22 (1) : makes it obligatory for the State to ensure equality before law and a legal system which promotes justice on the basis of equal opportunity to all. ART.21 : Right to free legal aid or free legal service is an essential fundamental right guaranteed by the Constitution. It forms the basis of reasonable, fair and just liberty ARTS. 38 and 39 : to ensure that the operation of the legal system promotes justice on a basis of equal opportunity and shall, in particular, provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. .1:40 PM CONCEPT : Legal aid is free legal assistance. TO WHOM ? to the poor and weaker sections of the society. WHY with the object to enable them to exercise the rights given to them by law. HOW IS IT BEING SECURED : International Covenant on Civil and Political Rights : Art. 14(3)(d) guarantees to everyone: “Right to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it” CONSTITUTION OF INDIA : PREAMBLE- ART 14-21-22-39-39(A) « The preamble of the Constitution secures to its citizen, social, economic and political justice. « ART.14 : equal justice is meaningless if the poor or illiterate or weak personsSep 4, 2016 - 3min LEGAL AID | UPSC Law Optional Fundamental rights — Public interest litigation; Legal Aid; Legal services authority | UPSC Law Optional Topic 2 under Constitutional Law | Paper 1 UNDERSTAND THE CONCEPT OF The horizon of ‘Legal aid* has been widened best, still the impact is totally missing. How would you resolve this crisis which is ruining the life of millions of poor people of our country over the years ? Suggest some concrete measures to make it more effective and implementative .2015 LAW UPSC. CONCEPT : Legal aid is free legal assistance. TO WHOM ? to the poor andsubject of criticism by Murray Rothbard, who attacked constitutionalism as incapable of restraining governments and does not protect the rights of citizens from their governments: [ijt is true that, in the United States, at least, we have a constitution that imposes strict limits on some powers of government. But, as we have discovered in the past century, no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government's own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government. Furthermore, the highly touted "checks and balances" and "separation of powers" in the American government are flimsy indeed, since in the final analysis all of these divisions are part of the same government and are governed by the same set of rulers. This can be related to India with Judicial Overreach by India Judiciary in Certain cases @ 772 Qo OsG. CRITICISM OF THE CONSTITUTIONALISM : 1. Legal scholar Jeremy Waldron contends that constitutionalism is often undemocratic: “Constitutions are not just about retraining and limiting power; they are about the empowerment of ordinary people in a democracy and allowing them to control the sources of law and harness the apparatus of government to their aspirations” This view does not hold well with Indian Constitution. 2. Constitutionalism has also been the subject of criticism by Murray Rothbard, who attacked constitutionalism as incapable of restraining governments and does not protect the rights of citizens from their governments: [i]t is true that, in the United States, at least, we have a constitution that imposes strict limits on some powers of government. But, as we have discovered in the past century, no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government's own Supreme Court, then the inevitable tendency is for the2. Maru Ram v. Union of India, (1981) 1 SCC 107. 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. F. HOW IT CAN BE MISUSED BY CROOKED MINDS : When the Constitution of India was adopted on November 26, 1949 by the Constituent Assembly, its members were mindful of the challenges of governance. Speaking after the completion of his work, Dr. B.R. Ambedkar, Chairman of the Constitution Drafting Committee, said: “I feel that the Constitution is workable; it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. Indeed, if | may say so, if things go wrong under the new Constitution the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile.” The members also recognised that the mere adoption of a good Constitution would not culminate in the values of constitutionalism permeating the civil and political culture in the country, nor could it ensure good governance.E. JUDICIAL ANALYSIS OF CONSTITUTIONALISM : 1. |.R.Coelho V. State of Tamil Nadu AIR 2007 SC 861 The principle of constitutionalism is now a legal principle which requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based. These democratic principles include the protection of fundamental rights. The principle of constitutionalism advocates a check and balance model of the separation of powers, it requires a diffusion of powers, necessitating different independent centers of decision making. The principle of constitutionalism underpins the principle of legality which requires the Courts to interpret legislation on the assumption that Parliament would not wish to legislate contrary to fundamental rights. The Legislature can restrict fundamental rights but it is impossible for laws protecting fundamental rights to be impliedly repealed by future statutes. 2. Maru Ram v. Union of India, (1981) 1 SCC 107. Constitutionalism or constitutional system of government abhors absolutism-it is premised on the rule of law in which subjectiveD. CONSTITUTIONALISM AND CONSTITUTIONAL GOVERNANCE : In one word ‘Limited Governance’ is the Constitutionalism, which is supposed to reflect in the Constitutional Law of a democratic state. Constitution of India is the Constitutional Law incorporating the Constitutionalism. The listed fundamental rights and guaranteed remedies, creation of judiciary as an impartial arbiter with all independent powers besides broad based legislative check on the executive are the reflections of such constitutionalism. From these essential characters the doctrines of judicial review, rule of law, separation of powers, universal franchise, transparent executive, fundamental right to equality and quality of life emerged and consolidated. E. JUDICIAL ANALYSIS OF CONSTITUTIONALISM : 1. |.R.Coelho V. State of Tamil Nadu AIR 2007 SC 861 The principle of constitutionalism is now a legal principle which requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based. These democratic principles include the protectionHOW THE CONSTITUTIONALISM CAN BE IMPLEMENTED? 1. A written constitution embeds constitutionalism. 2. Independent judiciary with powers of Judicial Review. 3. Doctrine of Separation of powers with check + balances. No organ of the state may arrogate to itself powers beyond what is specified in the Constitution. I.R.Coelho V. State of Tamil Nadu AIR 2007 SC 861 4. Doctrine of Rule of Law 5. Free and Fair Elections. 6. Fundamental Rights of the People. 7. Federalism. 8. Decentralisation of powers. 9. Rule of Law These principles, if inbuilt, in a constitution, then we can ensure the constitutionalism. D. CONSTITUTIONALISM AND CONSTITUTIONAL GOVERNANCE : In one word ‘Limited Governance’ is the Constitutionalism, which is supposed to reflect in the Constitutional Law of a democratic state. Constitution of India is the Constitutional Law incorporating the pe le aaa a a eal haIS THIS CONCEPT APPLICABLE IN INDIA ? © Constitutionalism is the primary edifice on which the Indian democracy stands. ¢ Modern constitutionalism, to which Germany is a major contributor too, especially in terms of the basic structure doctrine, specifies that powers vested in any organ of the State have to be exercised within the four corners of the Constitution, and further that organs created by a constitution cannot change the identity of the constitution itself. ; PARA 64 Ram Jethmalani v. Union of India, (2011) 8 SCC WHY NOT ABSOLUTE POWERS TO GOVT? The constitutionalism or constitutional system of Government abhors absolutism. Maru Ram v. Union of India & Ors. [(1981) 1 SCC 107}. ¢ Power corrupts AND Absolute power corrupts absolutely. If it is vested; then it will turn into authoritarian, oppressive government. (DESPOTISM) ¢ Jeopardise freedom of the people. To preserve dignity & personality of the people. HOW THE CONSTITUTIONALISM CAN BE IMPLEMENTED? 1. A written constitution embedse) Amendment provision: As it would not be possible to foretell all possibilities in future with great degree of accuracy, there must be sufficient provisions for amendment of the Constitution. It should contain a set of directions for its own modifications. The system might collapse if it lacks in scope for modification. Inherent capacity to change according to changing times and needs help any system to survive and improve. Soviet Constitution was mostly an expression of ideology and was less an expression of organizational set up. The American Constitution is more an expression of governmental organization and a guideline for the power relationship of the regime than an expression of the philosophy of the regime. C. CONCEPT OF CONSTITUTIONALISM ? UPSC 2014 Constitutionalism means LIMITED GOVT ; it means that powers of executive & legislature are limited & not - uncontrolled or arbitrary. IS THIS CONCEPT APPLICABLE IN INDIA ? © Constitutionalism is the primary edifice on which the Indian democracy stands. ¢ Modern constitutionalism, to which