Competitive Exams: Political Science Study Material State

The definition of State

According to Art. 12, ‘the State’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. The judiciary, it is said, though not expressly mentioned in Art. 12, should be included within the expression ‘other authorities’ since courts are set up by statutes, and exercise powers conferred by the law.

The Supreme Court summarizes the rules relating to doctrine of severability as follows:

  1. The intention of the legislature is a factor whether the legislature enacted that law knowing fully well that the rest of the statute is invalid to determine whether valid parts are separable or not.

  2. If valid & invalid are so inextricably mixed up, the whole law is declared void.

  3. If valid and invalid form part of a single scheme, the whole law is declared invalid.

  4. After omitting the invalid part, if what remains is very thin and what emerges out is something different, the entire law is declared invalid.

Exceptions of Article 14

There are certain provisions in the Constitution which, under certain circumstances, limit the effectiveness of Article 14.

  • Article 361 lays down that the President and the Governors are exempted from any criminal proceedings during the tenure of their offices.

  • The scope of the Right to Equality under Article 14 has been considerably restricted by the 42nd Amendment Actjjl76. The new Article 31 − C added by the Amendment Act provides that laws made by the State for implementing the Directive Principles contained in clause (b) or clause (c) of Article 39 cannot be challenged on the ground that they are violative of Article 14. Such laws will be exceptions to Article 14 of the Constitution.

  • Under the International Law, foreign sovereign, ambassadors and diplomats, enjoy full immunity from any Judicial process.

  • Article 359 (1) provides that where a Proclamation of Emergency is in operation, the President may, by order, declare that the right to move any Court for the enforcement of such rights conferred by Part III (except Articles 20 and 21) shall remain suspended. Thus, if the President of India issues an order, where a Proclamation of Emergency is in operation, enforcement of Art. 14 may be suspended for the period during which the Proclamation is in force.

Fundamental Rights exclusive to the citizens

  1. Art. 15: Prohibition of discrimination only on grounds of religion, race, caste, sex or place of birth.

  2. Art. 16: Equality of opportunity in matters of Public employment.

  3. Art. 19: Protection of certain rights, regarding freedom of speech etc.

  4. Art. 30. Right of the minorities to establish and administer the educational institutions.

Rule of Law

The guarantee of Equality before Law is an aspect of, what Lord Dicey calls, the ‘Rule of Law’ that originated in England. It means no man is above law and that every person, whatever be his rank or status is subject to the jurisdiction of ordinary Courts. Also, it says that no person shall be subject to harsh, uncivilized or discriminatory treatment even for the sake of maintaining law and order.

There are three basic meanings of ‘Rule of Law’

  • Absence of arbitrary power or supremacy of law a man can be punished for a breach of law but he cannot be punished for anything else.

  • Equality before law no one is above law.

  • The Constitution is the Supreme law of the land and all laws passed by the legislature must be consistent with the provisions of the Constitution.

Who are socially and educationally backward classes?

  • This is not defined in the Constitution.

  • But Art. 340 empowers the President to appoint a commission to investigate conditions of socially and educationally backward classes.

  • On the basis of the recommendations of the commission, the President may specify the backward classes.

  • But the decision of the Government is subject to judicial review.

  • In various rulings, Supreme Court held that ‘Backwardness’ as defined in Art. 15 (4), should be both social and educational, and not either.

  • Poverty, occupation, place of habitation may all be relevant factors to be taken into consideration.

  • The Court also held that neither caste nor poverty alone is a determining factor of social backwardness.

  • Though poverty is not the sole test of backwardness, it is a relevant factor in the context of social backwardness.

Rights outside Part III

  1. Art. 300A. No person shall be deprived of his property, save by authority of law.

  2. Art. 301. Freedom of trade, commerce and intercourse Subject to other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free.

  3. Art. 326. Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage.

Fundaamental Rights

Fundamental Rights available to any person on the soil of India (except to the Enemy Aliens)

  1. Art. 14: Equality before law and equal protection of law.

  2. Art. 20. Protection in respect of conviction for offences.

  3. Art. 21: Protection of life and personal liberty.

  4. Art. 23: Prohibition of traffic in human beings and forced labour.

  5. Art. 25: Freedom of religion.

  6. Art. 27: Freedom as to payment of taxes for promotion of any particular religion.

Is there a right to strike?

  • Passing its judgment in the T K Rangarajan vs. Government of Tamil Nadu and Others (the case of the dismissal of over 170, 000 striking Tamil Nadu government employees and teachers), a two member bench of the Indian Supreme Court ruled on August 7 2003 that the government employees do not have a fundamental, statutory or equitable moral right to strike whatever the cause, just or unjust.

  • The Justices, M B Shah and A R Lakshmanan, observed that apart from statutory rights, Government employees cannot claim that they can take society at ransom by going on strike.

  • In 1961, the Supreme Court had held in Kameshwar Prasad v. State of B/harthat even a very liberal interpretation of article 19 (1) (c) could not lead to the conclusion that the trade unions have a guaranteed fundamental rightto strike.

  • In stating that Government employees have no legal, moral or equitable right, the Court has evolved a new industrial jurisprudence unthought of earlier.

  • It is true that earlier judgments have rejected the right to strike as a fundamental right, but not as a legal, moral or equitable right.

  • The question of ‘strike’ not being a statutory or a legal right has never even been considered in the court.

  • Moreover, the Rangarajan case simply ignores statutory provisions in the Industrial Disputes Act, 1947 and the Trade Unions Act, 1926, and an equal number of case laws laid down by larger benches that have recognized the right to strike.

  • It also fails to consider International Covenants that pave the way for this right as a basic tenet of international labour standards.

  • In Kameshwar Prasad case, the Apex court had settled that the right to strike is not a fundamental right. But time and again the Court has also settled that the right to strike is a legal right, one that is recognized by most democratic countries of the world.

  • Evidently, the Supreme Court was carried away by the fact that nearly two lakh Government employees went on strike in the instant case and the Government machinery came to a standstill. Also, 90 per cent of the State's revenue in Tamil Nadu is spent on salaries of Government servants.

  • It is true that Government employees everywhere are paid better salaries and enjoy more privileges and amenities than other employees. The public sympathy is generally against Government employees who go on strike. But that is no justification for the Supreme Court to say that Government employees have no wcra/justification to go on strike in every case.

Article 19 and Judicial Review

  • The six basic freedoms prescribed in Art. 19 are not absolute.

  • The State can impose reasonable restrictions.

  • The expression ‘reasonable restriction’ has brought with it the doctrine of Judicial Review.

  • The determination by the legislature of what constitutes ‘reasonable restriction’ is subject to Judicial Review.

  • In determining the reasonableness, the court looks not only to the surrounding circumstances, but also, other laws which were passed as a single scheme. Number of different elements.

  • One such element, a key one in the present context, refers to the right of individuals to access information and records held by the public authorities, both through the routine government publications of information and through the provision for direct access requests.

  • To comport fully with the right to freedom of information, the State must establish cheap

Freedom of Press

  • The Indian Constitution does not provide for the freedom of press separately.

  • It is implicit in Art. 19, which grants freedom of speech and expression.

  • Freedom of expression includes not only expression of one's own views but of others'as well.

  • The restrictions that limit the freedoms in the case of individuals apply to the press also.

  • The laws that apply to press include: a taxation

  • In its interpretation of Art. 19 in the ‘airways case’ (February, 1995), the Supreme Court reiterated that the Press would be bound by the rules of the Government, expressed through an autonomous body.

  • Efficient procedures for the public to access official information, ensure that record-keeping procedures make this possible, and establish a practical regime regarding access that facilitates the maximum disclosure of information.