CHAPTER-I

Introduction

WHAT DO WE UNDERSTAND BY LAW:

Laws are essential for Civilized Society. The absence of laws can lead to arbitrariness and barbarianism.

Law in simple words means body of principles or rules recognized and applied by the State in the Administration of Justice. Thus law prescribes rules & regulations for governing our behavior in Society in an authoritative way. It guides the members of society,citizens and public as a whole about their duties and other’s rights and vice-versa. It lays down certain parameters as to what a person should do in certain situation and also refrains him from doing certain acts which are essential for living in harmonious society. In case, a person violates any of the law, it can result in imposition of certain punishments according to the nature and gravity of that offence as prescribed in the rules which also form part of law.

Laws are not only circumscribed to one’s right and duties qua the other individuals. These also deals with the rules which are to be followed by individuals in other matters too viz.while doing job or applying for any license or in relation to property whether movable and immovable. Laws, in fact, are the most important method of social control touching the lives of almost of every individual right from the womb to the tomb.

The sources from where the rules to regulate human conduct come into existence and drive thereafter their legal force of binding character are called sources of law.

The main ‘Sources of Law’are:

  1. Statutes and Legislations
  2. Judicial Precedents
  3. Customs and Practice
  4. Constitution of India
  1. Statutes and Legislations :

The statutes are enacted by the parliament in the centre and in the State by State Legislatures by keeping in view the problems faced by that particular State specifically and by framing law to curb and control those problems.

ii. Judicial Precedents:

Judicial Precedents form an independent ‘Source of Law’. These imply/ signify that when a point of law has been once settled by way of judicial pronouncements, it forms a precedent not to be departed from. The judicial precedents are the judgments of High Courts and Supreme Court which are bound to be followed by the courts below. As per Article 141 of the Constitution of India, the judgments of Supreme Court shall be binding on all the courts in India which implies that the law laid down by the Apex Courtbecomes law to be followed by all the courts below.

  1. Customs & Usages :

The usages or any set pattern of practices which are being followed by any community from time immemorial and do not contravene any law in existence or are not opposed to public policy, also takes the shape of law when recognized.

  1. Constitution of India:

The Constitution of India is written constitution which can be called a detailed legal code dealing with all important aspects of constitutional and administrative system of the country. It prescribes certain rules and regulations imbibing certain rights and duties of the individuals which even the Government has to keep in mind while formulating the laws, or else, if declared unconstitutional would not be enforced.

CHAPTER-II

CONSTITUTION OF INDIA

Meaning of constitution of a Country :

For proper functioning of any country and for its stability, it is necessary that it should have a healthy frame-work on the basis of which the country and the organs of Government should work. A constitution is the supreme law of the land. It describes the basic stature of the country. It can be either written or unwritten.

The Constitution of India :

India has a written constitution which has its preamble and opens with the line.

“We the people of India having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic, Republic.”

It is the basic structure which defines the powers of three organs of the State viz. Legislature, Executive and Judiciary. It is necessary for all the organs to work under the parameters of constitution.

It can be referred as body of rules or laws which determines the organization of Government, its various organs, the distribution of powers amongst various organs and the general principles on which those powers are to exercised by these organs. It also outlays the rights and duties of its citizens.

The Constitution of India was made by Assembly which was specially convened to frame the constitution and was called Constituent Assembly. The Constitution came into force on 26th January 1950 and the date is referred in our preamble as the date of commencement.

DUTY TOWARDS CONSTITUTION

At the top of the charter of fundamental duties is the duty to respect the National Flag and the National Anthem and also duty to abide by the Constitution – Any insult to the National Flag or to the Constitution of India amounts to an offence punishable under section 2 of The Prevention of Insult to National Honour Act, 1971 with imprisonment for a term which may extend to three years, or with fine, or with both.

Not only that even the prevention of singing of National Anthem too is punishable with an imprisonment upto three years or fine or with both section of the Act.

Improper use of National Flag and the National Emblems is also an offence punishable under section 5 of the Emblems And Names (Prevention of Improper Use) Act 1950.

Preamble to the Constitution of India :

Preamble to the Constitution of India is a brief introduction that sets out the guiding principles, ideas and aspirations of the Constitution.It provides a key to the understanding of constitution. The opening words “We, the people of India’ signify that the ultimate power rests in the citizens of India. It emphasizes the concept of democracy as well as sovereignty of the country and its citizens.”

The basic object of our constitution to establish a sovereign, socialist, secular, democratic republic is to secure justice, liberty, equality and fraternity to its citizen.

Sovereign :

The word ‘sovereign’ means supreme and independent. India is both internally and externally free from the control of any foreign power. The citizens through their representatives have supreme right to take decision on internal as well as external matters. No external power has the right to dictate its term to the Government of India.

Socialist :

It implies that India aims to provide social as well as economic equality to its citizen. “Social equality” means equal status and opportunities without discrimination on the grounds of castes, colour, creed, sex religion, language etc.

“Economic equality” is an endeavour to build a ‘Welfare State’ in which all effort would be made to make distribution of wealth to each according to his work and to provide decent standard of living to all.

Secular:

A secular State is neither religious nor irreligious nor anti-religious. All religions are given respect and no special effort is made to uplift or degrade any particular religion by the Government.

Democracy:

It is the form of Government in which its representatives are chosen amongst people bythemselves on the system of universal adult franchise popularly known as “one man one vote” without any discrimination on the basis of any factor like caste, creed, colour, religion etc. All power emanates from the people. The government is accountable to the people through their elected representatives.

Republic:

In this form the Head of the State is elected either directly or indirectly for certain period by the people. In India, the Head of country is called President. The post of the President of India is not hereditary.

With the aforesaid aim, our constitution also ensures fundamental rights to its citizens. It is incumbent upon each organ of Government to secure and protect these fundamental rights to all its citizens and for this purpose Constitution of India also enshrines Directive Principles of State Policy.

Fundamental Rights:

Fundamental Rights is the chart of rights which guarantees civil liberties to all the citizens so that they can lead their life in peace and harmony. These rights are provided to enable all the citizens to make progress and to make development of their personality without any obstacle and to preserve human dignity. These rights are enforceable by the court of law. Hence, in simple words Fundamental Rights as contained in Part III of the constitution can be defined as basic human rights of all citizens. Fundamental Rights can be broadly grouped into six categories:

  1. Right to Equality (Articles 14 to 18)
  2. Right to Freedom (Articles 19 to 22)
  3. Right against Exploitation (Articles 23 & 24)
  4. Right to Freedom of Religion (Articles 25 to 28)
  5. Cultural and Educational Right (Articles 29 & 30)
  6. Right to Constitutional Remedies (Article 32)

At a glance the fundamental rights are as under :

Article / Provision
14. / Equality before law -Every person is equal before the law and is entitled to equal protection of the laws within the territory of India.
15 / Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth:State cannot make any discrimination with any citizen on thesegrounds. / However,as per Article 15(3),(4)&(5), the State can make the special provision for women, children, advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes in relation to their admission to educational institutions including private educational institutions other than the minority educational institutions.
16 / Equality of opportunity in matters of public employment – There shall be equality of opportunity for all citizens in the matters relating to employment or appointment to any office under the State. / However, as per Articles 16(2)(4A)(4B). These Articles shall not prevent the State from making any provisions for reservation of appointments or classes of posts in favour of backward classes, scheduled castes and scheduled tribes which in the opinion of the State, are not adequately represented in the services under the State.
19 / All citizens shall have the following freedom:
  1. of speech and expression
  2. to assemble peacefully without arms
  3. to form associations or unions;
  4. to move freely in any territory of India;
  5. to reside and settle in any part of India
g. to practice any profession or to carry any occupation, trade or business / This right too is not absolute as reasonable restrictions can be imposed on the exercise of these rights in the interest of:
the sovereignty and integrity of India,
 the Security of the State,
friendly relations with Foreign States,
public order,
decency or morality
in relation to contempt of court,
defamation or incitement of an offence
20 (1)
20(2)
20(3) / Protection in respect of conviction for offences – A personcan only be convicted for act which is an offence according to the law in force at the time of the commission of that act and cannotbe subjected to penalty greater than that which was under the law in force at the time of the commission of the offence
(2)A person cannot be tried and punished for the same offence more than once.
(3)A person accused of any offence cannot be compelled to give statementagainst his own self.
21 / Protection of life and personal liberty – A person cannot be deprived of his life or personal liberty except according to procedure established by law.
21A. / Right of Education – All children of the age of six to fourteen years are entitled tofree and compulsory education in such manner as the state may, by law, determine.
22 / Protection against arrest and detention in certain cases –
(1) A person who is arrested shall beinformed, as soon as may be the grounds of his arrest andn shall not be denied the right to consult and to be defended by a advocate of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of his arrest excluding the time necessary for the journey from the place of arrest to the court of the Magistrate.
23 / Prohibition of traffic in human beings and forced labour – (1)Illegal trade of human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence. / This Article shall not prevent the State from imposing compulsory services for public purposes and not make any discrimination on the grounds of religion, race, caste or class or any of them.
24 / Prohibition of employment of children in factories etc. –Children below the age of fourteen years cannotbe employed to work in any factory or mine or engaged in any other hazardous employment.
25 / Freedom of conscience and free profession, practice and propagating of religion – Subject to public order, morality and health, all persons are equally entitled to:
 freedom of conscience
the right to freely profess, practice and propagate their religion.
to establish and maintain institutions for religious and charitable purposes;
to manage its own affairs in matters of religion;
to own and acquire movable and immovable property; and
to administer such property in accordance with law / As per Article 25(1)(a)(b)(c) – This article shall not affect the operation of any existing law or prevent the State from making any law –
(a)regulating or restricting any economic, financial, political or other sector activity which may be associated with religion practice
(b)any law providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
27 / Freedom as to payment of taxes for promotion of any particular religion –A person cannot be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination.
28 / Freedom as to attendance at religious instruction or religious worship in certain educational institutions – Any religious instruction cannot be provided in any educational institutions wholly maintained out of State Fund.
29. / Protection of interest of minorities –
(1)A citizen residing in the territory of India who is having a distinct language, script or culture has the right to conserve the same.
(2)A citizen cannot be denied admission into any educational institution maintained by the State or receiving aid out of State funds on the grounds of religion, race, caste, language etc.
30 / Right of minorities to establish and administer educational institutions – All minorities whether based on religion or language have the right to establish and administer educational institutions of their choice.

However, fundamental rights are not absolute and are subject to reasonable restrictions as deemed necessary for the protection of public interest at large as has been referred to in the column right side and can also besuspended under certain emergent situations as discussed above.

Right to Constitutional Remedies:

In case of denial of fundamental rights, one can enforce his right by moving the court of law as postulated byArticle 32:

Article 32:

Remedies for enforcement of rights conferred by this Part:

“The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever maybe appropriate, for enforcement of any of the rights conferred by this part.”

So, the remedy for enforcing fundamental right is itself a fundamental right.

Note :By virtue of Article 17 Untouchability in India has been abolished. Similarly, Article 18 also provides for abolition of titles.

Fundamental Duties :

As rights and duties are co-related, so apart from guaranting Fundamental Rights, our constitution has also laid down fundamental duties.

Article 51-A in Part IV-A of constitution relating to Fundamental Duties was added by 42nd Amendment. These are the duties which a citizen is morally obliged to perform for his all-round excellencewhich helps in upholding the spirit of nationalism and maintaining the harmony of the nation as well as of its citizens. These are 10 Fundamental Duties which are as under :

(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

(b)to cherish and follow the noble ideals which inspired our national struggle for freedom;

(c) to uphold and protect the sovereignty, unity and integrity of India;

(d) to defend the country and render national service when called upon to do so;

(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

(f) to value and preserve the rich heritage of our composite culture;

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

(i) to safeguard public property and to abjure violence;

(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.

Directive Principles of State Policy

Apart from Fundamental Rights and Duties, there are Directive Principles of State Policy which are embodied in Part IV of our constitution. These are the guidelines to the State which are to be borne in mind while framing laws, policies in order to establish economic and social democracy aiming at well-being of the people. The Directive Principles are not enforceable in any court of law yet these are fundamental for the governance of the country. These impose an obligation on the State to apply them in matters of legislation in order to form a ‘Welfare–State’ and to bring about political stability and administrative uniformity. The aims of these Directives Principles are:

To secure social order for the promotion of welfare of the people

To strive(make effort) for minimizing the inequalities in income and to make an endeavour to eliminate inequalities in status, facilities and opportunities amongst the people residing in different areas or engaged in different vocations. (Article 38)

To direct its policy towards securing

a.Equally to its citizen, men and women, have the right to an adequate means of livelihood;

b.Distribution of ownership and control of material resources of the community to subserve the common good.

c.To control the concentration of wealth and means of production